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PFIZER INC.
to
THE CHASE MANHATTAN BANK
Indenture
Dated as of January 30, 2001
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PFIZER INC.
Reconciliation and tie between the Trust Indenture Act of 1939
and the Indenture, dated as of January 30, 2001
TRUST
INDENTURE
ACT INDENTURE
SECTION SECTION
--------------------------------------- ---------------------------------------
section 310 (a)(1)..................... section 609
(a)(2)........................... section 609
(a)(3)........................... Not Applicable
(a)(4)........................... Not Applicable
(a)(5)........................... section 609
(b).............................. section 608; section 610
(c).............................. Not Applicable
section 311 (a)........................ section 613
(b).............................. section 613
section 312 (a)........................ section 701; section 702
(b).............................. section 702
(c).............................. section 702
section 313 (a)........................ section 703
(b).............................. section 703
(c).............................. section 703
(d).............................. section 703
section 314 (a)........................ section 704
(a)(4)........................... section 101; section 1005
(b).............................. Not Applicable
(c)(1)........................... section 102
(c)(2)........................... section 102
(c)(3)........................... Not Applicable
(d).............................. Not Applicable
(e).............................. section 102
section 315 (a)........................ section 601
(b).............................. section 602
(c).............................. section 601
(d).............................. section 601
(e).............................. section 514
section 316 (a)........................ section 101
(a)(1)(A)........................ section 502
(a)(1)(B)........................ section 513
(a)(2)........................... Not Applicable
(b).............................. section 508
(c).............................. section 104
section 317 (a)(1)..................... section 503
(a)(2)........................... section 504
(b).............................. section 1003
section 318 (a)........................ section 107
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions....................................................1
Section 102 Compliance Certificates and Opinions...........................9
Section 103 Form of Documents Delivered to Trustee.........................9
Section 104 Acts of Holders; Record Dates.................................10
Section 105 Notices, etc., to Trustee and Company.........................12
Section 106 Notice to Holders; Waiver.....................................13
Section 107 Conflict with Trust Indenture Act.............................13
Section 108 Effect of Headings and Table of Contents......................13
Section 109 Successors and Assigns........................................13
Section 110 Separability Clause...........................................13
Section 111 Benefits of Indenture.........................................13
Section 112 Governing Law.................................................14
Section 113 Legal Holidays................................................14
ARTICLE II
SECURITY FORMS
Section 201 Forms Generally...............................................14
Section 202 Form of Face of Security......................................15
Section 203 Form of Reverse of Security...................................16
Section 204 Additional Provisions Required for Global Securities..........21
Section 205 Form of Trustee's Certificate of Authentication...............22
ARTICLE III
THE SECURITIES
Section 301 Amount Unlimited; Issuable in Series..........................22
Section 302 Denominations.................................................25
Section 303 Execution, Authentication, Delivery and Dating................25
Section 304 Temporary Securities, Exchange of Temporary Global Securities
for Definitive Bearer Securities Representing Registered
Securities...................................................27
Section 305 Registration, Registration of Transfer and Exchange...........32
Section 306 Mutilated, Destroyed, Lost and Stolen Securities..............35
Section 307 Payment of Interest; Interest Rights Preserved................35
Section 308 Persons Deemed Owners.........................................37
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Section 309 Cancellation..................................................38
Section 310 Computation of Interest.......................................39
Section 311 CUSIP Numbers.................................................39
Section 312 Currency of Payments in Respect of Securities.................39
Section 313 Judgments.....................................................43
Section 314 Exchange Upon Default.........................................43
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 401 Satisfaction and Discharge of Indenture.......................44
Section 402 Application of Trust Money....................................45
ARTICLE V
REMEDIES
Section 501 Events of Default.............................................45
Section 502 Acceleration of Maturity; Rescission and Annulment............47
Section 503 Collection of Indebtedness and Suits for Enforcement by
Trustee......................................................48
Section 504 Trustee May File Proofs of Claim..............................49
Section 505 Trustee May Enforce Claims Without Possession of Securities...49
Section 506 Application of Money Collected................................49
Section 507 Limitation on Suits...........................................50
Section 508 Unconditional Right of Holders to Receive Principal, Premium
and Interest.................................................50
Section 509 Restoration of Rights and Remedies............................51
Section 510 Rights and Remedies Cumulative................................51
Section 511 Delay or Omission Not Waiver..................................51
Section 512 Control by Holders............................................51
Section 513 Waiver of Past Defaults.......................................51
Section 514 Undertaking for Costs.........................................52
Section 515 Waiver of Stay or Extension Laws..............................52
ARTICLE VI
THE TRUSTEE
Section 601 Certain Duties and Responsibilities...........................52
Section 602 Notice of Defaults............................................53
Section 603 Certain Rights of Trustee.....................................54
Section 604 Not Responsible for Recitals or Issuance of Securities........55
Section 605 May Hold Securities...........................................55
Section 606 Money Held In Trust...........................................55
Section 607 Compensation and Reimbursement................................55
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Section 608 Conflicting Interests.........................................56
Section 609 Corporate Trustee Required; Eligibility.......................56
Section 610 Resignation and Removal; Appointment of Successor.............57
Section 611 Acceptance of Appointment by Successor........................58
Section 612 Merger, Conversion, Consolidation or Succession to Business...59
Section 613 Preferential Collection of Claims Against Company.............59
Section 614 Appointment of Authenticating Agent...........................59
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701 Company to Furnish Trustee Names and Addresses of Holders.....61
Section 702 Preservation of Information; Communications to Holders........61
Section 703 Reports by Trustee............................................62
Section 704 Reports by Company............................................62
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801 Company May Consolidate, etc., on Certain Terms...............62
Section 802 Successor Substituted.........................................63
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 901 Supplemental Indentures Without Consent of Holders............63
Section 902 Supplemental Indentures with Consent of Holders...............64
Section 903 Execution of Supplemental Indentures..........................65
Section 904 Effect of Supplemental Indentures.............................65
Section 905 Conformity with Trust Indenture Act...........................65
Section 906 Reference in Securities to Supplemental Indentures............66
ARTICLE X
COVENANTS
Section 1001 Payment of Principal, Premium and Interest....................66
Section 1002 Maintenance of Office or Agency...............................66
Section 1003 Money for Securities Payments to Be Held in Trust.............67
Section 1004 Statement by Officers as to Default...........................68
Section 1005 Waiver of Certain Covenants...................................69
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ARTICLE XI
REDEMPTION OF SECURITIES
Section 1101 Applicability of Article......................................69
Section 1102 Election to Redeem; Notice to Trustee.........................69
Section 1103 Selection by Trustee of Securities to be Redeemed.............69
Section 1104 Notice of Redemption..........................................70
Section 1105 Securities Payable on Redemption Date.........................71
Section 1106 Securities Redeemed in Part...................................72
ARTICLE XII
SINKING FUNDS
Section 1201 Applicability of Article......................................73
Section 1202 Satisfaction of Sinking Fund Payments with Securities.........73
Section 1203 Redemption of Securities for Sinking Fund.....................73
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301 Applicability of Article......................................74
Section 1302 Defeasance and Discharge......................................74
Section 1303 Covenant Defeasance...........................................74
Section 1304 Conditions to Defeasance or Covenant Defeasance...............75
Section 1305 Deposited Money and Government Obligations to be Held in
Trust........................................................76
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1401 Indenture and Securities Solely Corporate Obligations.........76
ARTICLE XV
HOLDERS' MEETINGS
Section 1501 Purposes of Meetings..........................................77
Section 1502 Call of Meetings by Trustee...................................77
Section 1503 Call of Meetings By Company Or Holders........................77
Section 1504 Qualifications For Voting.....................................77
Section 1505 Regulations...................................................78
Section 1506 Voting........................................................78
Section 1507 No Delay of Rights By Meeting.................................79
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Exhibit A - Form of Certificate to be Given by Person Entitled to Receive
Bearer Security or Interest Prior to an Exchange Date
Exhibit B - Form of Certificate to be Given by Euro-Clear and Clearstream
Luxembourg, S.A. in Connection with the Exchange of a Portion
of a Temporary Global Note
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INDENTURE, dated as of January 30, 2001, between PFIZER INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX 00000 and THE CHASE MANHATTAN BANK, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE
W I T N E S S E T H:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America, as set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such
statements by such other entity as have been approved by a significant
segment of the accounting profession with are in effect as of the date of
determination;
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(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture, and
(5) 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 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership or voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Assistant Secretary", when used with respect to the Company or the
Trustee, means any assistant secretary.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Bearer Security" means any Security, in the form established pursuant
to Section 201, which is payable to bearer.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
a day other than (i) a Saturday or a Sunday, (ii) a day on which banking
institutions in that Place of Payment are authorized or obligated by law or
executive order to remain closed or (iii) a day which the Corporate Trust Office
of the Trustee is closed for business.
"Clearstream Luxembourg" means Clearstream Banking, societe anonyme.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
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"Common Stock" shall mean the class of Common Stock, par value $.05
per share, of the Company authorized at the date of this Indenture as originally
signed, or any other class of stock resulting from successive changes or
reclassifications of such Common Stock, and in any such case including any
shares thereof authorized after the date of this Indenture, and any other shares
of stock of the Company which do not have any priority in the payment of
dividends or upon liquidation over any other class of stock.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman, its President, its Chief Executive Officer, an Executive Vice
President, a Senior Vice President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Conversion Date" has the meaning specified in Section 312.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office as of the date hereof is located at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX 00000 Attention: Capital Markets Fiduciary Services.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Coupon" means any interest coupon appertaining to any Security.
"Coupon Security" means any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Currency" means Dollars or Foreign Currency.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act that is
designated to act as Depository for such Securities as contemplated by Section
301.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States that, at the time of payment, is legal tender
for the payment of public and private debts.
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"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 312.
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 312.
"Euro" means the currency introduced at the start of the third stage
of European economic and monetary union pursuant to the Treaty establishing the
European Community, as amended by the Treaty on European Union and as amended by
the Treaty of Amsterdam.
"Euro-clear Operator" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, or its successor, as operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Exchange Date" has the meaning specified in Section 304.
"Expiration Date" has the meaning specified in Section 104.
"Foreign Currency" has the meaning specified in Section 312.
"Global Security" means a Security that evidences all or part of the
Securities of any series which is issued to a Depository or a nominee thereof
for such series in accordance with Section 301(17).
"Government Obligation" has the meaning specified in Section 1304.
"Holder" means, with respect to a Security, the Registered Holder, and
with respect to a Bearer Security or a Coupon, the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity, and when used with respect to a Bearer Security,
includes additional amounts payable to Bearer if so provided pursuant to Section
301.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
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"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Market Exchange Rate" means (i) for any conversion involving a
Currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant Currency unit and dollars or such Foreign
Currency calculated by the method specified pursuant to Section 301 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in t he relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency. In the event of
the unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii) the Currency Determination Agent, if any, or if
there shall not be a Currency Determination Agent, then the Trustee, shall use,
without liability on its part, such quotation of the Federal Reserve Bank of New
York as of the most recent available date, or quotation if the Federal Reserve
Bank of New York as of the most recent available date, or quotations from one or
more major banks in New York City, London or other principal market for such
Currency or Currency unit in question, or such other quotations as the Currency
Determination Agent or the Trustee, as the case may be, shall deem appropriate.
Unless otherwise specified by the Currency Determination Agent, if any, or if
there shall not be a Currency Determination Agent, then by the Trustee, if there
is more than one market for dealing in any Currency or Currency unit by reason
of foreign exchange regulations or otherwise, the market to be used in respect
of such Currency or Currency unit shall be that upon which a nonresident issuer
of securities designated in such Currency or Currency unit would purchase such
Currency or Currency unit in order to make payments in respect of such
Securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Vice Chairman, the President, the Chief Executive Officer, or an
Executive Vice President, a Senior Vice President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 1004 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
in-house counsel for the Company or other counsel acceptable to the Trustee.
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"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(2) securities for whose payment or redemption money in the
necessary amount of money or money's worth has been heretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(3) securities as to which Defeasance has been effected pursuant
to Section 1302; and
(4) securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, or waiver or other
action hereunder, as of any date (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof that would be due and payable as of such date upon
acceleration of the Maturity thereof pursuant to Section 502, (B) if, as of such
date, the principal amount payable at the Stated Maturity of a Security is not
determinable, the principal amount of such Security which shall be deemed to be
Outstanding shall be the amount as specified or determined as contemplated by
Section 301, (C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be Outstanding
shall be the U.S. dollar equivalent, determined in the manner provided as
contemplated by Section 301, of the principal amount of such Security (or in the
case of a Security described in Clause (A) or (B) above, of the amount
determined as provided in such Clause), and (D) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which a Responsible Officer of the Trustee has received
an Officer's Certificate from the Company certifying that such Securities are so
owned and shall be so disregarded. Securities so owned which have been pledged
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in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including without
limitation the rate or rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Stated Maturity or Maturities thereof and
the redemption provisions, if any, with respect thereto, are to be determined by
the Company upon the issuance of such Securities.
"Permanent Global Security" has the meaning specified in Section 304.
"Person" means any individual, corporation, partnership, limited
liability company or corporation, joint venture, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Holder" means the Person in whose name a Registered
Security is registered in the Security Register.
"Registered Security" means any Security in the form established
pursuant Section 201 which is registered as to principal and interest in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer" when used with respect to the Trustee, means any
vice president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any senior trust
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officer, any trust officer or assistant trust officer, the controller or any
assistant 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 his knowledge of and
familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the date on which the principal of such Security or such
installment of principal or interest is due and payable, in the case of such
principal, as such date may be advanced or extended as provided pursuant to the
terms of such Security and this Indenture.
"Subsidiary" means, as to any Person, an entity of which more than 50%
of the outstanding capital stock having ordinary voting power (other than
capital stock having such power only by reason of contingency) is at the time
owned, directly or indirectly through one or more intermediaries, or both, by
such Person.
"Temporary Global Security" has the meaning specified in Section 304.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"U.S. Depositary" means a clearing agency registered under the
Exchange Act, or any successor thereto, which shall in either case be designated
by the Company pursuant to Section 301 until a successor U.S. Depositary shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "U.S. Depositary" shall mean or include each Person who is then a
U.S. Depositary hereunder, and if at any time there is more than one such
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Person, then "U.S. Depositary" as used with respect to the Debt Securities of
any series shall mean the U.S. Depositary with respect to the Securities of that
series.
"Valuation Date" has the meaning specified in Section 312.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president whether or not designated by a number or a
word or words added before or after the title "vice president".
Section 102 Compliance Certificates and Opinions. Upon any application
or request by the Company to the Trustee to take any action or to refrain from
taking any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer of the Company,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103 Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of any officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
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it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever, subsequent to the receipt by the Trustee of any Board
Resolution, Officers' Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if
originally filed in the corrected form and, irrespective of the date or dates of
the actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and or delivered as of the date
or dates required with respect to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary notwithstanding, if any
such corrective document or instrument indicates that action has been taken by
or at the request of the Company which could not have been taken had the
original document or instrument not contained such error or omission, the action
so taken shall not be invalidated or otherwise rendered ineffective but shall be
and remain in full force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the generality of
the foregoing, any Securities issued under the authority of such defective
document or instrument shall nevertheless be the valid obligations of the
Company entitled to the benefits of this Indenture equally and ratably with all
other Outstanding Securities, except as aforesaid.
Section 104 Acts of Holders; Record Dates. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it hereby expressly is required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
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 acknowledgements 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
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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 manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series; provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date or their DTC certified
proxy or official DTC position listing, and no other Holders, shall be entitled
to take a vote on the relevant action, whether or not such Holders remain
Holders after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities of such series on
such record date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon on the new record
date, Holders of the requisite principal amount of Outstanding Securities of
such series shall be entitled to take or vote on the relevant action, whether or
not such Holders remain Holders), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series on the date
such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Trustee in writing and to each Holder of Securities of the relevant
series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Xxxxxxx 000, (xxx) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request, direction or vote the
same, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date or their DTC
certified proxy or official DTC position listing. Nothing in this paragraph
shall be construed to prevent the Trustee from setting a new record date for any
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action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by the
Holders of the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any record date
is set pursuant to this paragraph, the Trustee, at the Company's expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be sent to the Company in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section
106.
With respect to any record date set pursuant to this Section, the
party hereto which sets such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities of the relevant series in the manner
set forth in Section 106, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date pursuant to
this Section, the party hereto which set such record date shall be deemed to
have initially designated the 180th day after such record date as the Expiration
Date with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled to take any action
hereunder with regard to any particular Security may do so with regard to all or
any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
For the purposes of this Section 104, the term "Holder" means a
Registered Holder or a DTC participant listed on a certified official DTC proxy.
Section 105 Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or other Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing by mail, first-class postage prepaid, by guaranteed overnight
courier or by facsimile transmission (receipt confirmed by a Responsible
Officer), followed by overnight courier, to or with the Trustee at its
Corporate Trust Office, Attention: Capital Markets Fiduciary Services,
Conventional Debt;
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder, unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, by
guaranteed overnight courier or by facsimile transmission (receipt
confirmed by a Responsible Officer), followed by overnight courier, to the
Company addressed to it at the address of its principal office specified in
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the first paragraph of this instrument, Attention: Corporate Secretary, or
at any other address previously furnished in writing to the Trustee by the
Company; or
(3) 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 the
official language of the country of publication.
Section 106 Notice to Holders; Waiver. Where this Indenture provides
for notice to Holders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, by guaranteed overnight courier or by facsimile
transmission (receipt confirmed by facsimile transmission receipt), followed by
overnight courier, to each 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 is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107 Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act which
is required under such Act to be a part of and govern this Indenture, the latter
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.
Section 108 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 109 Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 110 Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 111 Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
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hereto and their successors hereunder and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 112 Governing Law. This Indenture and the Securities shall be
governed by and construed in accordance with the laws of the State of New York.
Section 113 Legal Holidays. In any case where any Interest Payment
Date, Redemption Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities (other than a provision of any Security which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be if such
payment is made or duly provided for on such Business Day.
ARTICLE II
SECURITY FORMS
Section 201 Forms Generally. The Securities of each series shall be in
substantially the form set forth in this Article, or in such other form as shall
be established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or Depository therefor or as may
consistently herewith be determined by the officers executing such Securities,
as evidenced by their execution thereof. If the form of Securities of any series
(or any Global Security) is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
To the extent any provision of any form set forth in this Article
conflicts with the express provisions of this Indenture, the provisions of this
Indenture shall govern and be controlling.
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Section 202 Form of Face of Security. [INSERT ANY LEGEND REQUIRED BY
UNITED STATES FEDERAL INCOME TAX LAWS AND REGULATIONS.]
PFIZER INC.
No. ___________________________ $___________________
CUSIP No.
Pfizer Inc., a corporation duly organized and existing under the laws
of Delaware (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to ______________________, or registered assigns, the principal
sum of _____________________ Dollars [or other currency or currency units] on
____________ [IF THE SECURITY IS TO BEAR INTEREST PRIOR TO MATURITY, AND
INTEREST PAYMENTS ARE NOT EXTENDABLE, 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, [INSERT - SEMI-ANNUALLY, QUARTERLY, MONTHLY
OR OTHER DESCRIPTION OF THE RELEVANT PAYMENT PERIOD] on ____________ and
____________ in each year, commencing _________________, at the rate of ____%
per annum until the principal hereof is paid or made available for payment [IF
APPLICABLE, INSERT--, provided that any principal and premium, and any such
installment of interest, which is overdue shall bear interest at the rate of
____% per annum (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until they are paid or
made available for payment, and such interest shall be payable on demand]. 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 Person 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 _______________ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person 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 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 said Indenture].
[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 Stated Maturity 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 of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment. Interest on
any overdue principal or premium shall be payable on demand. Any such interest
on any overdue principal or premium which 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), from the date of such demand until
-15-
the amount so demanded is paid or made available for payment. Interest on any
overdue principal shall be payable on demand.]
Payment of the principal of (and premium, if any) and [IF APPLICABLE,
INSERT - any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in , in such coin or currency
of [the United States of America] [INSERT OTHER CURRENCY --, IF APPLICABLE] as
at the time of payment is legal tender for payment of public and private debts
[IF APPLICABLE, INSERT -; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
wire transfer at such place and to such account at a banking institution in the
United States as may be designated in writing to the Trustee at least sixteen
(16) days prior to the date for payment by the Person entitled thereto].
[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 Company in immediately available funds.]
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 referred to on the reverse hereof 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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Pfizer Inc.
Dated:
Attest: _________________________ By: _________________________________________
Name: Name:
Title: Title:
Section 203 Form of Reverse of Security. This Security is one of a
duly authorized issue of securities of the Company (herein called the
"Securities"), issued and to be issued in one or more series under an Indenture,
dated as of January 30, 2001 (herein called the "Indenture", which then shall
have the meaning assigned to it in such instrument) between the Company and The
Chase Manhattan Bank, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, 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 series
designated on the face hereof [IF APPLICABLE, INSERT--limited in aggregate
principal amount to $ ______________].
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[IF APPLICABLE, INSERT - The Securities of this series are subject to
redemption upon not less than 30 days notice by mail, [IF APPLICABLE, INSERT -
(1) 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) at any time
[IF APPLICABLE, INSERT - on or after ________ __, 2001], as a whole or in part,
at the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [IF APPLICABLE, INSERT - on or
before __________, ____% and if redeemed] during the 12-month period beginning
of the years indicated.
REDEMPTION REDEMPTION
YEAR PRICE YEAR 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, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
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 of this series are subject to
redemption upon not less than 30 days' notice by mail, (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 [IF
APPLICABLE, INSERT - on or after ____________], as a whole or in part, at the
election of the Company, 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 OTHERWISE
REDEMPTION THROUGH THAN THROUGH OPERATION
OPERATION OF THE OF THE
YEAR SINKING FUND YEAR 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, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders 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.]
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[IF APPLICABLE INSERT - Notwithstanding the foregoing, the Company may
not, prior to __________, redeem any Securities of this series as contemplated
by [IF APPLICABLE INSERT - 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 Company
(calculated in accordance with generally accepted financial practice) of less
than _____% per annum.]
[IF APPLICABLE INSERT - The sinking fund for this series provides for
the redemption on ____________ in each year beginning with the year ____ and
ending with the year ____ of [IF APPLICABLE INSERT - not less than
$______________ ("mandatory sinking fund") and not more than] $_____________
aggregate principal amount of Securities of this series. Securities of this
series acquired or redeemed by the Company otherwise than through [IF APPLICABLE
INSERT - mandatory] sinking fund payments may be credited against subsequent [IF
APPLICABLE INSERT - mandatory] sinking fund payments otherwise required to be
made - [IF APPLICABLE INSERT - in the inverse order in which they become due].]
[IF THE SECURITY IS SUBJECT TO REDEMPTION OF ANY FUND, INSERT - In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[IF THE SECURITY IS NOT SUBJECT TO REDEMPTION, INSERT - This Security
is not redeemable prior to Stated Maturity.]
[IF APPLICABLE, INSERT - The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [,in each case] upon compliance with certain conditions set forth in
the Indenture.]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT -
If an Event of Default with respect to Securities of this series 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 THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT - If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [- INSERT FORMULA FOR DETERMINING THE
AMOUNT]. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal; premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this series shall
terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series affected
under the Indenture at any time by the Company and the Trustee with the consent
-18-
of the Holders of a majority in principal amount of all series at the time
Outstanding affected thereby (voting as one class). The Indenture contains
provisions permitting the Holders of not less than a majority in principal
amount of the Securities of each series at the time Outstanding, with respect to
which a default under the Indenture shall have occurred and be continuing
(voting as one class), on behalf of the Holders of the Securities of all such
series, to waive with certain exceptions, such past default with respect to all
such series and its consequences. The Indenture also permits the Holders of not
less than a majority in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture. Any
such consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange therefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $____________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
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set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested in writing by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company 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 Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
No recourse for the payment of the principal of or any premium or
interest on any Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or in any supplemental indenture, or in this
Security, or because of the creation of any indebtedness represented hereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or any successor corporation,
either directly or through the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability was expressly waived and released as a condition of, and as
consideration for, the execution of the Indenture and is a condition of, and is
consideration for, the execution of this Security.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfers(s) unto
----------------
(Please insert social security or
other identifying number of assignee)
------------------------------------------
------------------------------------------
------------------------------------------
(Please print or type name and address including postal zip code of assignee)
the within Note and all rights thereunder, hereby irrevocable constituting and
appointing
------------------------------------------
Attorney to transfer said Notes on the books of the Company, with full
power of substitution in the premises.
Date:__________
---------------------------------------
--------------------------
(Signature Guarantee)
Section 204 Additional Provisions Required for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the Securities
evidenced thereby, every Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY
REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN
PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN
SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE."
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Section 205 Form of Trustee's Certificate of Authentication. The
Trustee's certificates of authentication shall be in substantially the following
form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank, as
Trustee
By:_________________________________________
Authorized Officer
Dated:
ARTICLE III
THE SECURITIES
Section 301 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities of any other
series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1106 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the 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;
(4) the date or dates on which the principal of the Securities of the
series is payable; and the right, if any, to shorten or extend the date on
which the principal of any Securities of the series is payable and the
conditions to any such change;
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(5) the rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, if any, or the method by
which such rate or rates shall be determined; the date or dates from which
such interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable; the manner (if any) of determination of such
Interest Payment Dates; and the Regular Record Date, if any, for any such
interest payable on any Interest Payment Date;
(6) the right, if any, to extend the interest payment periods and the
terms of such extension or extensions.
(7) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable; and whether, if
acceptable to the Trustee, any principal of such Securities shall be
payable without presentation or surrender thereof;
(8) the period or periods within which, or the date or dates on which,
the price or prices at which and the term and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company; and if other than by a Board Resolution, the manner
in which any election by the Company to redeem the Securities shall be
evidenced;
(9) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund, purchase fund or
analogous provisions or at the option of the Holder thereof and the period
or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $100,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which of the principal of and any
premium on interest on any Securities of the series shall be payable and
the manner of determining the equivalent in the currency of the United
States of America for any purpose, including for purposes of the definition
of "Outstanding" in Section 101;
(12) if the amount of principal of or any premium or interest on any
series of the Securities may be determined with reference to an index or
formula, the manner in which such amounts shall be determined;
(13) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Securities as to which such election is made shall be
payable, the periods within which and the terms and condition upon which
such election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
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(14) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(15) if either or both of Section 1302 or 1303 do not apply to the
Securities of any series;
(16) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(17) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositary or Depositaries for such
Global Securities, the form of any legend or legends which shall be borne
by any such Global Security in addition to or in lieu of those set forth in
Clause (2) of the last paragraph of Section 305 setting forth the
circumstances in which any such Global Security may be exchanged in whole
or in part for Securities registered in the name or names of Persons other
than the Depositary for such Global Security or a nominee thereof;
(18) any addition, modification or deletion of any Events of Default
or covenants provided with respect to any Securities of the series and any
change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable pursuant
to Section 502;
(19) any addition to or change in the covenants set forth in Article X
which applies to Securities of the series;
(20) the extent to which, or the manner in which, any interest payable
on any Global Security on an Interest Payment Date will be paid, if other
than in the manner provided in Section 307; and the manner in which any
principal of, or premium, if any, on, any Global Security will be paid, if
other than as set forth elsewhere herein and whether any Global Security
will require any notation to evidence payment of principal or interest; and
(21) any other terms of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided in the Officers' Certificate
referred to above or in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time. Unless otherwise
provided, upon the Company's delivery of an Officers' Certificate, together with
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such additional documentation as the Trustee shall require, a series may be
reopened for issuances of additional Securities of such series.
With respect to Securities of a series offered in a Periodic Offering,
the Board Resolution (or action taken pursuant thereto), Officers' Certificate
or supplemental indenture referred to above may provide general terms or
parameters for Securities of such series and provide either that the specific
terms of particular Securities of such series shall be specified in a Company
Order or that such terms shall be determined by the Company in accordance with
other procedures specified in a Company Order as contemplated by the third
paragraph of Section 303.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Notwithstanding Section 301(2) herein and unless otherwise expressly
provided with respect to a series of Securities, the aggregate principal amount
of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized
with respect to such series as increased.
Section 302 Denominations. The Securities of each series shall be
issuable only in fully registered form without coupons in such denominations as
shall be specified as contemplated by Section 301. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such
series shall be issuable in denominations of $100,000 and any integral multiple
thereof.
Section 303 Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the company by its Chairman of the
Board, its Vice Chairman, its President, its Chief Executive Officer, an
Executive Vice President, a Senior Vice President, or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities; provided,
however, that in the case of Securities offered in a Periodic Offering, the
Trustee shall authenticate and deliver such Securities from time to time in
accordance with such other procedures (including, without limitation, the
receipt by the Trustee of oral or electronic instructions from the Company or
its duly authorized agents, promptly confirmed in writing) acceptable to the
Trustee as may be specified by or pursuant to a Company Order delivered to the
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Trustee prior to the time of the first authentication of Securities of such
series. If the form or terms of the Securities of the series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been, or in the case of
Securities of a series offered in a Periodic Offering, will be, established by
or pursuant to Board Resolution as permitted by Section 301, that such terms
have been, or in the case of Securities of a series offered in a Periodic
Offering, will be, established in conformity with the provisions of this
Indenture, subject, in the case of Securities of a series offered in a Periodic
Offering, to any conditions specified in such Opinion of Counsel; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
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
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any such
Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized signatory, and such
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certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309 for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
Section 304 Temporary Securities, Exchange of Temporary Global
Securities for Definitive Bearer Securities Representing Registered Securities.
Pending the preparation of definitive Securities of any series, the Company may
execute, and upon Company 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 in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
Every such temporary Security shall be executed by the Company and
shall be authenticated and made available for delivery by the Trustee upon the
same conditions and in substantially the same manner, and with the same effect,
as the definitive Securities in lieu of which they are issued. In the case of
any series issuable as Bearer Securities, such temporary Securities may be in
global form, representing such of the Outstanding Securities of such series as
shall be specified therein.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series, of a
like Stated Maturity and with like terms and provisions, upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for such series, without charge to the Holder, except as
provided in Section 305 in connection with a transfer. Upon surrender for
cancellation of any one or more temporary Securities of any series (accompanied
by any unmatured Coupons), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of a
like Stated Maturity and like terms and provisions; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a temporary
Security; and provided, further, that a definitive Bearer Security (including a
permanent Bearer Security in global form) shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
Section 305. 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.
Unless otherwise specified pursuant to Section 301, all Bearer
Securities of a series shall be initially issued in the form of a single
temporary Bearer Security in global form (a "temporary Global Security"). The
Company shall execute, and upon Company Order the Trustee shall authenticate,
any temporary Global Security and any permanent Bearer Security in global form
-27-
(as described below, a "permanent Global Security") upon the same conditions and
in substantially the same manner, and with the same effect, as definitive Bearer
Securities, and the temporary or permanent Global Security, as the case may be,
shall, unless otherwise specified therein, be delivered by the Trustee to the
London office of a depositary or common depositary (the "Common Depositary"),
for the benefit of the Euro-clear Operator or Clearstream Luxembourg, as the
case may be, for credit to the account of the Company (in the case of sales of
Bearer Securities by the Company directly to investors) or the managing
underwriter (in the case of sales of Bearer Securities by the Company to
underwriters) or such other accounts as the Company or the managing underwriter,
respectively, may direct.
On or after the date specified in or determined pursuant to the terms
of any temporary Global Security which (subject to any applicable laws and
regulations) shall be at least 40 days after the issue date of a temporary
Global Security (the "Exchange Date"), the Securities represented by such
temporary Global Security may be exchanged for definitive Securities (subject to
the second succeeding paragraph) or Securities to be represented thereafter by
one or more permanent Global Securities in definitive form without interest
coupons. On or after the Exchange Date such temporary Global Security shall be
surrendered by the Common Depositary to the Trustee, as the Company's agent for
such purpose, at its principal office in London (or at such other place
specified outside the United States pursuant to Section 301) and following such
surrender, the Trustee shall (1) endorse the temporary Global Security or adjust
its records to reflect the reduction of its principal amount by an equal
aggregate principal amount of such Security, (2) endorse the applicable
permanent Global Security, if any, to reflect the initial amount, or an increase
in the amount of Securities represented thereby, (3) manually authenticate such
definitive Securities (including any permanent Global Security), (4) make
available for delivery such definitive Securities to the Holder thereof or, if
such definitive Security is a permanent Global Security, make available for
delivery such permanent Global Security to the Common Depositary to be held
outside the United States for the accounts of the Euro-clear Operator or
Clearstream Luxembourg, as the case may be, for credit to the respective
accounts at the Euro-clear Operator or Clearstream Luxembourg, as the case may
be, designated by or on behalf of the beneficial owners of such Securities (or
to such other accounts as they may direct) and (5) make available for redelivery
such temporary Global Security to the Common Depositary, unless such temporary
Global Security shall have been canceled in accordance with Section 309 hereof;
provided, however, that, unless otherwise specified in such temporary Global
Security, upon such presentation by the Common Depositary, such temporary Global
Security shall be accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by the Euro-clear Operator, as to the portion of such
temporary Global Security held for its account then to be exchanged for
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definitive Securities (including any permanent Global Security), and a
certificate dated the Exchange Date or a subsequent date and signed by
Clearstream Luxembourg, as to the portion of such temporary Global Security held
for its account then to be exchanged for definitive Securities (including any
permanent Global Security), each substantially in the form set forth in Exhibit
B to this Indenture. Each certificate substantially in the form of Exhibit B
hereto of the Euro-clear Operator or Clearstream Luxembourg, as the case may be,
shall be based on certificates of the account holders listed in the records of
the Euro-clear Operator or Clearstream Luxembourg, as the case may be, as being
entitled to all or any portion of the applicable temporary Global Security. An
account holder of the Euro-clear Operator or Clearstream Luxembourg, as the case
may be, desiring to effect the exchange of an interest in a temporary Global
Security for an interest in definitive Securities (including any permanent
Global Security) shall instruct the Euro-clear Operator or Clearstream
Luxembourg, as the case may be, to request such exchange on its behalf and shall
deliver to the Euro-clear Operator or Clearstream Luxembourg, as the case may
be, a certificate substantially in the form of Exhibit A hereto and dated no
earlier than 10 days prior to the Exchange Date. Until so exchanged, temporary
Global Securities shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities (including any permanent Global
Security) of the same series authenticated and delivered hereunder, except as to
payment of interest, if any.
The delivery to the Trustee by the Euro-clear Operator or Clearstream
Luxembourg of any certificate substantially in the form of Exhibit B hereto may
be relied upon by the Company and the Trustee as conclusive evidence that a
corresponding certificate or certificates has or have been delivered to the
Euro-clear Operator or Clearstream Luxembourg, as the case may be, pursuant to
the terms of this Indenture.
On or prior to the Exchange Date, the Company shall deliver to the
Trustee definitive Securities in an aggregate principal amount equal to the
principal amount of such temporary Global Security, executed by the Company. At
any time, on or after the Exchange Date, upon 30 days' notice to the Trustee by
the Euro-clear Operator or Clearstream Luxembourg, as the case may be, acting at
the request of or on behalf of the beneficial owner, a Security represented by a
temporary Global Security or a permanent Global Security, as the case may be,
may be exchanged, in whole or from time to time in part, for definitive
Securities without charge and the Trustee shall authenticate and make available
for delivery, in exchange for each portion of such temporary Global Security or
such permanent Global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of a
like Stated Maturity and with like terms and conditions, as the portion of such
temporary Global Security or such permanent Global Security to be exchanged,
which, unless the Securities of the series are not issuable both as Bearer
Securities and as Securities, as contemplated by Section 301, shall be in the
form of Bearer Securities or Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that definitive
Bearer Securities shall be delivered in exchange for a portion of the temporary
Global Security or the permanent Global Security only in compliance with the
requirements of the second preceding paragraph. On or prior to the forty-fifth
day following receipt by the Trustee of such notice with respect to a Security,
or, if such day is not a Business Day, the next succeeding Business Day, the
temporary Global Security or the permanent Global Security, as the case may be,
shall be surrendered by the Common Depositary to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or from time to time in part,
for definitive Securities without charge following such surrender, upon the
request of the Euro-clear Operator or Clearstream Luxembourg, as the case may
be, and the Trustee shall (1) endorse the applicable temporary Global Security
or the permanent Global Security or adjust its records to reflect the reduction
of its principal amount by the aggregate principal amount of such Security, (2)
cause the terms of such Security and Coupons, if any, to be entered on a
definitive Security, (3) manually authenticate such definitive Security, and (4)
if a Bearer Security is to be delivered, deliver such definitive Security
outside the United States to the Euro-clear Operator or Clearstream Luxembourg,
as the case may be, for or on behalf of the beneficial owner thereof, in
exchange for a portion of such temporary Global Security or the permanent Global
Security.
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Unless otherwise specified in such temporary Global Security or the
permanent Global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Security or the permanent Global
Security, except that a Person receiving definitive Securities must bear the
cost of insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Securities in person at the
offices of the Euro-clear Operator or Clearstream Luxembourg.
Definitive Securities in bearer form to be delivered in exchange for
any portion of a temporary Global Security or the permanent Global Security
shall be delivered only outside the United States. Notwithstanding the
foregoing, in the event of redemption or acceleration of all or any part of a
temporary Global Security prior to the Exchange Date, a permanent Global
Security or definitive Bearer Securities, as the case may be, will not be
issuable in respect of such temporary Global Security or such portion thereof,
and payment thereon will instead be made as provided in such temporary Global
Security.
Until exchanged in full as hereinabove provided, any temporary Global
Security or the permanent Global Security shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities of the same
series and tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 301, interest payable on such
temporary Global Security on an Interest Payment Date for Securities of such
series occurring prior to the applicable Exchange Date shall be payable to the
Euro-clear Operator or Clearstream Luxembourg on such Interest Payment Date upon
delivery by the Euro-clear Operator or Clearstream Luxembourg to the Trustee of
a certificate or certificates substantially in the form set forth in Exhibit B
to this Indenture, for credit without further interest on or after such Interest
Payment Date to the respective accounts of the Persons who are the beneficial
owners of such temporary Global Security on such Interest Payment Date and who
have each delivered to the Euro-clear Operator or Clearstream Luxembourg, as the
case may be, a certificate substantially in the form set forth in Exhibit A to
this Indenture.
Any definitive Bearer Security authenticated and make available for
delivery by the Trustee in exchange for a portion of a temporary Global Security
or the permanent Global Security shall not bear a coupon for any interest which
shall theretofore have been duly paid by the Trustee to the Euro-clear Operator
or Clearstream Luxembourg, or by the Company to the Trustee in accordance with
the provisions of this Section 304.
With respect to Exhibits A and B to this Indenture, the Company may,
in its discretion and if required or desirable under applicable law or as set
forth in any Board Resolution or supplemental indenture with respect to any
series of Securities, substitute one or more other forms of such exhibits for
such exhibits, eliminate the requirement that any or all certificates be
provided, or change the time that any certificate may be required, provided that
such substitute form or forms or notice of elimination or change of such
certification requirement have theretofore been delivered to the Trustee with a
Company Request and such form or forms, elimination or change is reasonably
acceptable to the Trustee.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with Section 303 and the Company Order with respect to such
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series, authenticate and make available for delivery one or more Global
Securities in temporary or permanent form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by one or more Global
Securities, (ii) shall be registered in the name of the U.S. Depositary for such
Global Security or Notes or the nominee of such depositary, and (iii) shall bear
a legend substantially as set forth in Section 204.
Notwithstanding any other provision of this Section or Section 305,
unless and until it is exchanged in whole or in part for Securities in
definitive form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the U.S.
Depositary for such series to a nominee of such depositary or by a nominee of
such depositary to such depositary or another nominee of such depositary or by
such depositary or any such nominee to a successor U.S. Depositary for such
series or a nominee of such successor depositary.
If at any time the U.S. Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Securities of such series or if at any time the U.S.
Depositary for Securities of a series shall no longer be a clearing agency
registered and in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company shall appoint a
successor U.S. Depositary with respect to the Securities of such series. If a
successor U.S. Depositary for the Securities of such series is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such condition, the Company will execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of definitive Securities
of such series, will authenticate and make available for delivery, Securities of
such series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Notes representing such series in
exchange for such Global Security or Notes.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Notes. In such event,
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and make available for delivery, Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Notes representing such series in exchange for
such Global Security or Notes.
If the Securities of any series shall have been issued in the form of
one or more Global Securities and if an Event of Default with respect to the
Securities of such series shall have occurred and be continuing, the Company
will promptly execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and make available for delivery, Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Notes representing such series in exchange for
such Global Security or Notes.
If specified by the Company pursuant to Section 301 with respect to
Securities of a series, the U.S. Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange in whole
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or in part for Securities of such series in definitive form on such terms as are
acceptable to the Company and such depositary. Thereupon, the Company shall
execute and the Trustee shall authenticate and make available for delivery,
without charge:
(i) to each Person specified by the U.S. Depositary a new Security or
Securities of the same series, of any authorized denomination as requested
by such Person in an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and
(ii) to the U.S. Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities delivered to Holders thereof.
Upon the exchange of a Global Security for Securities in definitive
form, such Global Security shall be canceled by the Trustee. Securities issued
in exchange for a Global Security pursuant to this subsection (c) shall be
registered in such names and in such authorized denominations as the U.S.
Depositary for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall make available for delivery such Securities to the Persons in whose names
such Securities are so registered.
Section 305 Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trustee Office of the Trustee a
register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and the transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided; provided, however, that the Company may appoint
co-Security Registrars or the terms of any series of Securities may provide
otherwise.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver or make available for delivery, in the name of the designated transferee
or transferees, one or more new Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount.
Except as otherwise provided in Section 304 and this Section 305, at
the option of the Holder, Securities of any series may be exchanged for other
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
If and to the extent specified pursuant to Section 301, the provisions
of this Section 305 shall be applicable to Securities of any series which are
Bearer Securities. At the option of the Holder thereof, to the extent permitted
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by law, any Bearer Security of any series which by its terms is registrable as
to principal and interest may be exchanged for a Security of such series of like
aggregate principal amount and of a like Stated Maturity and with like terms and
conditions upon surrender of such Bearer Security at the Corporate Trust Office
or at any other office or agency of the Company designated pursuant to Section
301 for the purpose of making any such exchanges. Any Coupon Security
surrendered for exchange shall be surrendered with all unmatured Coupons and any
matured Coupons in default attached thereto. If the Holder of a Bearer Security
is unable to produce any such unmatured Coupon or Coupons or matured Coupon or
Coupons in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing Coupon or Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to any Paying Agent any such missing Coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that except as otherwise
provided in Section 1002, interest represented by Coupons shall be payable only
upon presentation and surrender of those Coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in exchange
for a Security of the same series and of a like Stated Maturity and with like
terms and conditions 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 (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
Person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of the 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. The
Company shall execute, and the Trustee shall authenticate and make available for
delivery, the Security or Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Securities will be subject to the provisions of United States Federal income tax
laws and regulations applicable to Securities in effect at the time of such
exchange.
Except as otherwise specified pursuant to Section 301, in no event may
Securities, including Securities received in exchange for Bearer Securities, be
exchanged for Bearer Securities.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
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Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, or 1106 not involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed, the Company shall not be required (i) to issue, register the
transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption and ending at the close of business on
the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary has notified the
Company that it is unwilling or unable to continue as Depositary for such
Global Security and a successor Depositary has not been appointed by the
Company within 90 days of receipt by the Company of such notification, (B)
if at any time the Depositary ceases to be a clearing agency registered
under the Exchange Act at a time when the Depositary is required to be so
registered to act as such Depositary and no successor Depositary shall have
been appointed by the Company within 90 days after it became aware of such
cessation, or (C) there shall exist such circumstances, if any, in addition
to or in lieu of the foregoing as have been specified for this purpose as
contemplated by Section 301. Notwithstanding the foregoing, the Company may
at any time in its sole discretion determine that Securities issued in the
form of a Global Security shall no longer be represented in whole or in
part by such Global Security, and the Trustee, upon receipt of a Company
Order therefor, shall authenticate and deliver definitive Securities in
exchange in whole or in part for such Global Security.
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(3) Subject to Clause (2) above, any exchange or transfer of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for or upon transfer of a Global Security or
any portion thereof shall be registered in such names as the Depositary for
such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906,
or 1106 or otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Security, unless such Security is registered in the
name of a Person other than the Depositary for such Global Security or a
nominee thereof.
Section 306 Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security is surrendered to the Trustee at its Corporate Trust Office
(in the case of Registered Securities) or at its principal London office (in the
case of Bearer Securities), or (ii) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security, and
there is delivered to the Company and the Trustee such security or indemnity as
may be required by them to save each of them and any Paying Agent harmless, and
neither the Company nor the Trustee receives notice that such Security has been
acquired by a bona fide purchaser, then the Company shall execute and upon
Company Request the Trustee shall authenticate and make available for delivery,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security; provided, however, that
principal of (and premium, if any) and any interest on Bearer Securities shall,
except as otherwise provided in Section 1002, be payable only at an office or
agency located outside the United States.
Upon the issuance of any new Security under this Section 306 the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section 306
in lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section 306 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307 Payment of Interest; Interest Rights Preserved. Except as
otherwise provided as contemplated by Section 301 with respect to any series of
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Securities, interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest
notwithstanding the cancellation of such Registered Security upon any transfer
or exchange subsequent to the Regular Record Date. Unless otherwise specified as
contemplated by Section 301 with respect to the Securities of any series,
payment of interest on Registered Securities shall be made at the place or
places specified pursuant to Section 301 or, at the option of the Company, by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or, if provided pursuant to Section 301, by wire
transfer to an account designated by the Registered Holder.
Interest on any Bearer Security which is payable and is punctually
paid or duly provided for on any Interest Payment Date shall be paid to the
Holder of the Bearer Security upon presentation of such Bearer Security and
notation thereon on such Interest Payment Date at the principal London office of
the Trustee or at such other Place of Payment outside the United States
specified pursuant to Section 301.
Unless otherwise specified pursuant to Section 301, at the direction
of the Holder of any Bearer Security payable in Dollars, payment on such Bearer
Security will be made by check drawn on a bank in the City of New York or, if
agreeable to the Trustee, by wire transfer to a Dollar account maintained by
such Holder outside the United States. If such payment at the offices of all
Paying Agents outside the United States become illegal or is effectively
precluded because of the imposition of exchange controls or similar restrictions
on the full payment or receipt of such amounts in Dollars, the Company will
appoint an office or agent in the United States at which such payment may be
made. Unless otherwise specified pursuant to Section 301, at the direction of
the holder of any Bearer Security payable in a Foreign Currency, payment on such
Bearer Security will be made by a check drawn on a bank outside the United
States or by wire transfer to an appropriate account maintained by such Holder
outside the United States. Except as provided in this paragraph, no payment on
any Bearer Security will be made by mail to an address in the United States or
by wire transfer to an account in the United States.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, any interest on any Security of any series
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall, if such
Security is a Registered Security, forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an
amount of money in the Currency or Currency unit in which the Securities of
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such series are payable (except as otherwise specified pursuant to Sections
301 or 312) equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series in the
manner set forth in Section 106, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange if any, on
which such Registered Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Any Defaulted Interest payable in respect of Bearer Securities of any
series shall be payable pursuant to such procedures as may be satisfactory to
the Trustee in such manner that there is no discrimination between the Holders
of Registered Securities (if any) and Bearer Securities of such series, and
notice of the payment date therefor shall be given by the Trustee, in the name
and at the expense of the Company, in the manner provided in Section 106 not
more than 25 days, and not less than 20 days, prior to the date of the proposed
payment.
Subject to the foregoing provisions of this Section 307 each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308 Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name any Registered
Security is registered as the owner of such Registered Security for the purpose
of receiving payment of the principal of (and premium, if any) and (subject to
Section 307) interest, if any, on such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary. The Company, the Trustee, and any
agent of the Company or the Trustee may treat the Holder of any Bearer Security
or of any Coupon as the absolute owner of such Bearer Security or Coupon for the
purposes of receiving payment thereof or on account thereof and for all other
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purposes whatsoever, whether or not such Bearer Security or Coupon be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary. All payments made to any Holder, or
upon his order, shall be valid, and, to the extent of the sum or sums paid,
effectual to satisfy and discharge the liability for moneys payable upon such
Security or Coupon.
The ownership of Bearer Securities shall be proved by production of
such Bearer Securities or by a certificate executed by any bank or trust
company, which certificate shall be dated and shall state that, on the date
thereof, a Bearer Security bearing a specified identifying number or other xxxx
was deposited with, or exhibited to, the person executing such certificate by
the Person named in such certificate, or by any other proof of possession
reasonably satisfactory to the Trustee. The holding by the Person named in any
such certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Security shall be produced, (2) such Bearer Security shall be
produced by some other Person, (3) such Bearer Security shall have been
registered on the Security Register, if, pursuant to Section 301, such Bearer
Security can be so registered, or (4) such Bearer Security shall have been
canceled or paid.
Section 309 Cancellation. Unless otherwise specified pursuant to
Section 301 for Securities of any series, all Securities surrendered for
payment, redemption, registration of transfer or exchange or for credit against
any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. All
Bearer Securities so delivered shall be held by the Trustee and, upon
instruction by Company Order, shall be canceled or held for reissuance. Bearer
Securities held for reissuance may be reissued only in exchange for Bearer
Securities of the same series and of like Stated Maturity and with like terms
and conditions pursuant to Section 305 or in replacement of mutilated, lost,
stolen, or destroyed Bearer Securities of the same series and of like Stated
Maturity and with like terms and conditions. All Bearer Securities held by the
Trustee pending such cancellation or reissuance shall be deemed to be delivered
for cancellation for all purposes of this Indenture and the Securities. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section 309 except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of as
directed by a Company Order; provided, however, that the Trustee shall not be
required to destroy such cancelled Securities. The acquisition of any Securities
by the Company shall not operate as a redemption or satisfaction of the
indebtedness represented thereby unless and until such Securities are
surrendered to the trustee for cancellation. In the case of any temporary Global
Security which shall be destroyed if the entire aggregate principal amount to
the Securities represented thereby has been exchanged, the certificate of
destruction shall state that all certificates required pursuant to Section 304
to be given by the Euro-clear Operator or Clearstream Luxembourg, have been duly
presented to the Trustee by the Euro-clear operator or Clearstream Luxembourg,
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as the case may be. Permanent Global Securities shall not be destroyed until
exchanged in full for definitive Securities or until payment thereof is made in
full.
Section 310 Computation of Interest. Except as otherwise specified as
contemplated by Section 301 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
Section 311 CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
Section 312 Currency of Payments in Respect of Securities. (a) Except
as otherwise specified pursuant to Section 301 for Bearer Securities of any
series, payment of the principal of (and premium, if any) and interest on Bearer
Securities of such series denominated in any Currency will be made in such
Currency.
(b) With respect to Registered Securities of any series not permitting
the election provided for in paragraph (c) below or the Holders of which have
not made the election provided for in paragraph (c) below, except as provided in
paragraph (e) below, payment of the principal of (and premium, if any) and any
interest on any Registered Security of such series will be made in the Currency
in which such Registered Security is payable.
(c) It may be provided pursuant to Section 301 with respect to the
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (e) and (f) below, to receive payments of principal of (and
premium, if any) and any interest on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustee a written election, to be in form and substance satisfactory to the
Trustee, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect for such
Holder or any transferee of such Holder until changed by such Holder or such
transferee by written notice to the Trustee (but any such change must be made
not later than the close of business on the Election Date immediately preceding
the next payment date to be effective for the payment to be made on such payment
date, and no such change or election may be made with respect to payments to be
made on any Registered Security of such series with respect to which an Event of
Default has occurred or notice of redemption has been given by the Company
pursuant to Article Eleven). Any Holder of any such Registered Security who
shall not have delivered any such election to the Trustee by the close of
business on the applicable Election Date will be paid the amount due on the
applicable payment date in the relevant Currency as provided in paragraph (b) of
this Section 312.
(d) If the election referred to in paragraph (c) above has been
provided for pursuant to Section 301, then not later than the fourth Business
Day after the Election Date for each payment date, the Trustee will deliver to
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the Company a written notice specifying, in the Currency in which each series of
the Registered Securities is payable, the respective aggregate amounts of
principal of (and premium, if any) and any interest on the Registered Securities
to be paid on such payment date, specifying the amounts so payable in respect of
the Registered Securities as to which the Holders of Registered Securities
denominated in any Currency shall have elected to be paid in another Currency as
provided in paragraph (c) above. If the election referred to in paragraph (c)
above has been provided for pursuant to Section 301 and if at least one Holder
has made such election, then, on the second Business Day preceding each payment
date, the Company will deliver to the Trustee an Exchange Rate Officer's
Certificate in respect of the Currency payments to be made on such payment date.
The Currency amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (c) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the third Business Day (the "Valuation Date") immediately preceding
each payment date.
(e) If a Conversion Event occurs with respect to a Foreign Currency,
the Euro or any other Currency unit in which any of the Securities are
denominated or payable, other than pursuant to an election provided for pursuant
to paragraph (c) above, then with respect to each date for the payment of
principal of (and premium, if any) and any interest on the applicable Securities
denominated or payable in such Foreign Currency, the Euro or such other Currency
unit occurring after the last date on which such Foreign Currency, the Euro or
such other Currency unit was used (the "Conversion Date"), the Dollar shall be
the Currency of payment for use on each such payment date. The Dollar amount to
be paid by the Company to the Trustee and by the Trustee or any Paying Agent to
the Holders of such Securities with respect to such payment date shall be the
Dollar Equivalent of the Foreign Currency or, in the case of a Currency unit,
the Dollar Equivalent of the Currency Unit, in each case as determined by the
Currency Determination Agent, if any, or, if there shall not be a Currency
Determination Agent, then by the Trustee, in the manner provided in paragraph
(g) or (h) below.
(f) If the Holder of a Registered Security denominated in any Currency
shall have elected to be paid in another Currency as provided in paragraph (c)
above, and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have been
made in the absence of such election. If a Conversion Event occurs with respect
to the Currency in which payment would have been made in the absence of such
election, such Holder shall receive payment in Dollars as provided in paragraph
(e) of this Section 312.
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Currency Determination Agent, if any, or, if there shall not
be a Currency Determination Agent, then by the Trustee, and shall be obtained
for each subsequent payment date by converting the specified Foreign Currency
into Dollars at the Market Exchange Rate on the Conversion Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Currency Determination Agent, if any, or, if there shall not be a
Currency Determination Agent, then by the Trustee, and subject to the provisions
of paragraph (j) below, shall be the sum of each amount obtained by converting
the Specified Amount of each Component Currency into Dollars at the Market
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Exchange Rate for such Component Currency on the Valuation Date with respect to
each payment.
(i) For purposes of this Section 312 the following terms shall have
the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component Currency of the relevant Currency unit,
including, but not limited to, the Euro.
A "Conversion Event" means the cessation of (i) a Foreign
Currency to be used both by the government of the country which issued
such Currency and for the settlement of transactions by public
institutions of or within the international banking community, (ii) the
Euro to be used 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 other than the Euro to be
used for the purposes for which it was established.
"Currency Determination Agent" means the New York Clearing
House bank, if any, from time to time selected by the Trustee for purposes
of Section 312; provided that such agent shall accept such appointment in
writing and the terms of such appointment shall be acceptable to the
Company and shall, in the opinion of the Company and the Trustee at the
time of such appointment, require such agent to make the determinations
required by this Indenture by a method consistent with the method provided
in this Indenture for the making of such decision or determination.
"Exchange Rate Officer's Certificate" means a telex or a
certificate setting forth (i) the applicable Market Exchange Rate and (ii)
the Dollar, Foreign Currency or Currency unit amounts of principal,
premium, if any, and any interest respectively (on an aggregate basis and
on the basis of a Security having the lowest denomination principal amount
determined in accordance with Section 302 in the relevant Currency or
Currency unit), payable on the basis of such Market Exchange Rate sent (in
the case of a telex) or signed (in the case of a certificate) by the
Treasurer or any Assistant Treasurer of the Company.
"Foreign Currency" means a currency issued by the government
of any country other than the United States or a composite currency or
currency unit the value of which is determined by reference to the values
of the currencies of any group of countries.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which were
represented in the relevant Currency unit, including, but not limited to,
the Euro, on the Conversion Date. If after the Conversion Date the
official unit of any Component Currency is altered by way of combination
or subdivision, the Specified Amount of such Component Currency shall be
divided or multiplied in the same proportion. If after the Conversion Date
two or more Component Currencies are consolidated into a single Currency,
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the respective Specified Amounts of such Component Currencies shall be
replaced by an amount in such single Currency equal to the sum of the
respective Specified Amounts of such consolidated Component Currencies
expressed in such single Currency, and such amount shall thereafter be a
Specified Amount and such single Currency shall thereafter be a Component
Currency. If after the Conversion Date any Component Currency shall be
divided into two or more Currencies, the Specified Amount of such
Component Currency shall be replaced by amounts of such two or more
Currencies with appropriate Dollar equivalents at the Market Exchange Rate
on the date of such replacement equal to the Dollar equivalent of the
Specified Amount of such former Component Currency at the Market Exchange
Rate on such date, and such amounts shall thereafter be Specified Amounts
and such Currencies shall thereafter be Component Currencies. If after the
Conversion Date of the relevant Currency unit, including, but not limited
to, the Euro, a Conversion Event (other than any event referred to above
in this definition of "Specified Amount") occurs with respect to any
Component Currency of such Currency unit, the Specified Amount of such
Component Currency shall, for purposes of calculating the Dollar
Equivalent of the Currency Unit, be converted into Dollars at the Market
Exchange Rate in effect on the Conversion Date of such Component Currency.
"Election Date" shall mean the record date with respect to any
payment date, and with respect to the Maturity shall mean the record date
(if within 16 or fewer days prior to the Maturity) immediately preceding
the Maturity, and with respect to any series of Securities whose record
date immediately preceding the Maturity is more than 16 days prior to the
Maturity or any series of Securities for which no record dates are
provided with respect to interest payments, shall mean the date which is
16 days prior to the Maturity.
(j) All decisions and determinations of the Trustee or the Currency
Determination Agent, if any, regarding the Dollar Equivalent of the Foreign
Currency, the Dollar Equivalent of the Currency Unit and the Market Exchange
Rate shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company
and all Holders of the Securities denominated or payable in the relevant
Currency. In the event of a Conversion Event with respect to a Foreign Currency,
the Company, after learning thereof, will immediately give written notice
thereof to the Trustee (and the Trustee will promptly thereafter give notice in
the manner provided in Section 106 to the Holders) specifying the Conversion
Date. In the event of a Conversion Event with respect to the Euro or any other
Currency unit in which Securities are denominated or payable, the Company, after
learning thereof, will immediately give notice thereof to the Trustee (and the
Trustee will promptly thereafter give written notice in the manner provided in
Section 106 to the Holders) specifying the Conversion Date and the Specified
Amount of each Component Currency on the Conversion Date. In the event of any
subsequent change in any Component Currency as set forth in the definition of
Specified Amount above, the Company, after learning thereof, will similarly give
written notice to the Trustee. The Trustee shall be fully justified and
protected in relying and acting upon information received by it from the Company
and the Currency Determination Agent, if any, and shall not otherwise have any
duty or obligation to determine such information independently.
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(k) For purposes of any provision of the Indenture where the Holders
of Outstanding Securities may perform an Act which requires that a specified
percentage of the Outstanding Securities of all series perform such Act and for
purposes of any decision or determination by the Trustee of amounts due and
unpaid for the principal (and premium, if any) and interest on the Securities of
all series in respect of which moneys are to be disbursed ratably, the principal
of (and premium, if any) and interest on the Outstanding Securities denominated
in a Foreign Currency will be the amount in Dollars based upon the Market
Exchange Rate for Securities of such series, as of the date for determining
whether the Holders entitled to perform such Act have performed it, or as of the
date of such decision or determination by the Trustee, as the case may be.
Section 313 Judgments. If for the purpose of obtaining a judgment in
any court with respect to any obligation of the Company hereunder or under any
Security, it shall become necessary to convert into any other Currency any
amount in the Currency due hereunder or under such Security, then such
conversion shall be made at the Market Exchange Rate as in effect on the date
the Company shall make payment to any Person in satisfaction of such judgment.
If pursuant to any such judgment, conversion shall be made on a date other than
the date payment is made and there shall occur a change between such Market
Exchange Rate and the Market Exchange Rate as in effect on the date of payment,
the Company agrees to pay such additional amounts (if any) as may be necessary
to ensure that the amount paid is equal to the amount in such other Currency
which, when converted at the Market Exchange Rate as in effect on the date of
payment or distribution, is the amount then due hereunder or under such
Security. Any amount due from the Company under this Section 313 shall be due as
a separate debt and is not to be affected by or merged into any judgment being
obtained for any other sums due hereunder or in respect of any Security. In no
event, however, shall the Company be required to pay more in the Currency or
Currency unit due hereunder or under such Security at the Market Exchange Rate
as in effect when payment is made than the amount of Currency stated to be due
hereunder or under such Security so that in any event the Company's obligations
hereunder or under such Security will be effectively maintained as obligations
in such Currency, and the Company shall be entitled to withhold (or be
reimbursed for, as the case may be) any excess of the amount actually realized
upon any such conversion over the amount due and payable on the date of payment
or distribution.
Section 314 Exchange Upon Default. If default is made in the payments
referred to in Section 1001, then the Company hereby undertakes that, upon
presentation and surrender of a permanent Global Security to the Trustee (or to
any other Person or at any other address as the Company may designate in
writing), on any Business Day on or after the maturity date thereof, the Company
will issue and the Trustee will authenticate and make available for delivery to
the bearer of such permanent Global Security duly executed and authenticated
definitive Securities with the same issue date and maturity date as set out in
such permanent Global Security.
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ARTICLE IV
SATISFACTION AND DISCHARGE
Section 401 Satisfaction and Discharge of Indenture. This Indenture
shall upon Company Request cease to be of further effect with respect to any
series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for and rights to receive payments of principal (and premium,
if any) and interest on such Securities), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(ii) have become due and payable; or
(iii) will become due and payable at their Stated Maturity within one
year; or
(iv) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company;
and the Company, either complies with any other condition or terms specified
pursuant to Section 301, or if not so specified in the case of (i), (ii) or
(iii) above, has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose (I) an amount in the Currency in
which such Securities are denominated (except as otherwise provided pursuant to
Section 301 or 312) sufficient to pay and discharge the entire indebtedness on
such Securities 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, (II) Government
Obligations (as defined in Section 1304) 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, an amount equal to the
amount set forth in subsection I immediately above, or (III) a combination
thereof, sufficient, in the case of (II) or (III), in the opinion of 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 to pay and discharge, the entire indebtedness on
such Securities not therefore delivered to the Trustee for cancellation, for
principal and any premium 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
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Redemption Date, as the case may be; provided, however, in the event a petition
for relief under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, is filed with respect to the Company within 91 days after the deposit and
the Trustee is required to return the deposited money to the Company, the
obligations of the Company under this Indenture with respect to such Securities
shall not be deemed terminated or discharged;
(2) the Company has paid or cause to be paid all other sums payable
hereunder by the Company;
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture with
respect to such series have been complied with; and
(4) the Company has delivered to the Trustee an Opinion of Counsel or
a ruling by the Internal Revenue Service to the effect that Holders of the
Securities of the series will not recognize income, gain or loss for general
income tax purposes as a result of such deposit and discharge.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Company to any Authenticating Agent under Section 614 and the obligations of
the Company under Section 1001 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of Clause (1) of this Section 401, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive. If, after the deposit referred to in Section 401 has been
made, (x) the Holder of a Security is entitled to, and does, elect pursuant to
Section 312(c), to receive payment in a Currency other than that in which the
deposit pursuant to Section 401 was made, or (y) if a Conversion Event occurs
with respect to the Currency in which the deposit was made or elected to be
received by the Holder pursuant to Section 312(c), then the indebtedness
represented by such Security shall be fully discharged to the extent that the
deposit made with respect to such Security shall be converted into the Currency
in which such payment is made.
Section 402 Application of Trust Money. Subject to the provisions of
the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal and any premium and interest for whose payment such money has been
deposited with the Trustee.
ARTICLE V
REMEDIES
Section 501 Events of Default. "Event of Default", wherever used
herein with respect to Securities of any series, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
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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) unless it is inapplicable to a particular
series or is specifically deleted or modified in the Board Resolution (or action
taken pursuant thereto), Officers' Certificate or supplemental indenture under
which such series of Securities is issued or has been deleted or modified in an
indenture supplemental hereto:
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 60 days; provided, however, that if the Company is permitted by
the terms of the Securities of such series to defer the payment in
question, the date on which such payment is due and payable shall be the
date on which the Company is required to make payment following such
deferral, if such deferral has been elected pursuant to the terms of the
Securities; or
(2) default in the payment of the principal of or, any premium on, any
Security of that series at its Maturity; or
(3) default in the making of any sinking fund payment, when and as due
by the terms of a Security of that series, and continuance of such default
for a period of 60 days or;
(4) default in the performance, or breach, of any covenant of the
Company in this Indenture (other than a covenant a default in whose
performance or whose breach is elsewhere in this Section 501 specifically
dealt with or which has expressly been included in this Indenture solely
for the benefit of series of Securities other than that series), and
continuance of such default or breach for a period of 90 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 33% 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, unless the
Trustee, or the Trustee and the Holders of a principal amount of Securities
of such series not less than the principal amount of Securities the Holders
of which gave such notice, as the case may be, shall agree in writing to an
extension of such period prior to its expiration; provided, however, that
the Trustee, or the Trustee and the Holders of such principal amount of
Securities of such series, as the case may be, shall be to have agreed to
an extension of such period if corrective action is initiated by the
Company, within such period and is being diligently pursued;
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
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affairs, and the continuance of any such decree or ordering for relief or
any such other decree or order unstayed and in effect for a period of 90
consecutive days;
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or authorization of any such action by the Board of
Directors; or
(7) any other Event of Default provided with respect to Securities of
that series pursuant to Section 301.
Section 502 Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 33% in principal amount of the Outstanding
Securities of that series may declare the principal amount of all of the
Securities of that series (or, if any of the Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified in the terms thereof) to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount plus accrued
and unpaid interest (or specified amount shall) become immediately due and
payable. Upon payment of such amount in the Currency in which such Securities
are denominated (except as otherwise provided pursuant to Section 301 or 312),
all obligations of the Company in respect of the payment of principal of the
Securities of such series shall terminate.
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 Event of Default giving rise to such declaration of
acceleration shall, without further act, be deemed to have been waived, and such
declaration and its consequences shall, without further act, be deemed to have
been rescinded and annulled, if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series;
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(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities;
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor 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; provided, however, that all sums
payable under this clause (D) shall be paid in Dollars;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503 Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 60 days;
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof; or
(3) default is made in the making or satisfaction of any sinking fund
payment or analogous obligation when the same becomes due pursuant to the
terms of the Securities of any series and such default continues for a
period of 60 days;
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and any premium and on any overdue interest, at the rate or rates
prescribed therefor 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 an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
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If the Company fails to pay such amount forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities, and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities wherever
situated.
Section 504 Trustee May File Proofs of Claim. In case of any judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditor's
or other similar committee.
Section 505 Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506 Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or any premium or interest, upon presentation of
the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607
and any and all amounts due hereunder;
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SECOND: To the payment of the amounts then due and unpaid for the
principal of and any premium and interest on the Securities in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal and any premium and interest, respectively; and
THIRD: To the payment of the balance, if any, to the Company or any
other Person or Persons legally entitled thereto.
Section 507 Limitation on Suits. No Holder of any Security of any
series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that series
as part of the majority set forth in Section 507(2) below;
(2) the Holders of not less than a majority in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more 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 of the Holders of Outstanding Securities of any other series, 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. For
the protection and enforcement of the provisions of this Section 507, each and
every Holder of Securities of any series and the Trustee for such series shall
be entitled to such relief as can be given at law or in equity.
Section 508 Unconditional Right of Holders to Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Section 307) any interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
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Section 509 Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 510 Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511 Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512 Control by Holders. The Holders of a majority in principal
amount of the Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series; provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(3) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee, determine
that the proceeding so directed would involve the Trustee in personal
liability or would be unjustly prejudicial to the Holders of Securities of
such series not joining in any such direction and for which the Trustee has
not received satisfactory indemnity.
Section 513 Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of all series with
respect to which any default under the Indenture shall have occurred and be
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continuing (voting as a single class), by notice to the Trustee, may, on behalf
of the Holders of all the Securities of such series, waive any past default
under the Indenture and its consequences, except a default
(1) in payment of the principal of or any premium or interest on any
Security of such series, or in the payment of any sinking fund installment or
analogous obligation with respect to the Securities of such series; or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist and be deemed
not to have occurred, and any Event of Default arising therefrom shall be deemed
to have been cured and not to have occurred, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
Section 514 Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, a court may require any
party litigant in such suit, other than the Trustee, to file an undertaking to
pay the costs of such suit, and may assess costs against any such party
litigant, in the manner and to the extent provided in the Trust Indenture Act;
provided that neither this Section 514 nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company or by the Trustee.
Section 515 Waiver of Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay, or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
Section 601 Certain Duties and Responsibilities. With respect to the
Holders of any series of Securities issued hereunder, the Trustee, prior to the
occurrence of an Event of Default with the respect to the Securities of that
series and after the curing or waiving of all Events of Default which may have
occurred with respect to that series, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. In case an Event of
Default with respect to Securities of any series has occurred (which has not
been cured or waived) the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
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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) prior to the occurrence of an Event of Default with respect to
Securities of any series and after the curing or waiving of all Events of
Default which may occurred:
(A) the duties and obligations of the Trustee with respect to
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(B) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any 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 provisions 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.
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the Holders pursuant to Section 512 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable grounds for believing that
the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it or it does not receive an indemnity satisfactory to it
against such risk, liability, loss, fee or expense which might be incurred by it
in compliance with such request or directions.
Section 602 Notice of Defaults. If a default occurs hereunder with
respect to Securities of any series, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the extent provided
by the Trust Indenture Act; provided, however, that in the case of any default
of the character specified in Section 501(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section 602 and Section 603, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
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Section 603 Certain Rights of Trustee. Subject to the provisions of
Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any Officer's Certificate, Opinion of Counsel,
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper 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 Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(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 or an Opinion of Counsel;
(4) the Trustee may consult with counsel and the 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 pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity reasonably satisfactory to it
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, other evidence of indebtedness or other paper or document, but the Trustee
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled, at reasonable times
previously notified to the Company to examine the relevant books, records and
premises of the Company, 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; and
(8) the Trustee shall not be deemed to have knowledge of any default
or Event of Default except (i) any Event of Default occurring pursuant to
Sections 501(1), 501(2) or 501(3) or (ii) any default or Event of Default of
which a Responsible Officer of the Trustee has received written notification or
obtained actual knowledge.
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(9) the Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(10) before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such certificate or opinion.
(11) the Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or within
its rights or powers.
(12) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
Section 604 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities of any series. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605 May Hold Securities. The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 606 Money Held In Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
Section 607 Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as shall
be agreed to in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
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of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, willful
misconduct or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence, willful misconduct
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
To secure the Issuers' payment obligations in this Section 607, the
Trustee shall have a senior claim and lien prior to the Securities against all
money or property held or collected by the Trustee, in its capacity as Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in clause (5), (6) or (7) of Section 501 occurs, the expenses
(including the reasonable fees and expenses of its agents and counsel) and the
compensation for the services shall be preferred over the status of the Holders
in a proceeding under any bankruptcy law and are intended to constitute expenses
of administration under any bankruptcy law. The Company's obligations under this
Section 607 and any claim arising hereunder shall survive the resignation or
removal of any Trustee, the discharge of the Company's obligations hereunder and
any rejection or termination under any bankruptcy law.
Section 608 Conflicting Interests. If the Trustee has or shall acquire
a conflicting interest within the meaning of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act
and in this Indenture. To the extent provided by such Act, the Trustee shall not
be deemed to have a conflicting interest by virtue of being a trustee under this
Indenture with respect to Securities of more than one series.
Section 609 Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee hereunder with respect to the Securities of each series,
which may be a Trustee hereunder for Securities of one or more other series.
Each Trustee shall be a person that is eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000. If any such person publishes reports of condition at least
annually, pursuant to law, or to the requirements of its supervising or
examining authority, then for the purposes of this Section 609 and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
person 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
with respect to the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section 609, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article. Neither
the Company nor any person directly or indirectly controlling, controlled by, or
under common control with the Company shall serve as Trustee upon any
Securities.
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Section 610 Resignation and Removal; Appointment of Successor. No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of at least a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the removal of the
Trustee, the removed Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of
such series.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months; or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder; or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees for the
Securities of such series.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
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requirements of Section 611. 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 at least a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that extent
supercede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 611 Acceptance of Appointment by Successor. In the case of the
appointment hereunder of a successor Trustee with respect to all Securities,
each such successor Trustee so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument 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 to its claim, if any, provided for in
Section 607.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
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any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate business of the
Trustee, shall be successor of the Trustee hereunder, provided that 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. As soon as practicable thereafter, the successor
Trustee shall mail a notice of its succession to the Company and to the Holders
of the Securities. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities. In case any
Securities shall not have been authenticated by such predecessor Trustee, any
such successor Trustee may authenticate and deliver such Securities, 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.
Section 613 Preferential Collection of Claims Against Company. If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).
Section 614 Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents acceptable to the Company 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 thereof or pursuant to Section
306, 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. Wherever reference is made in this Indenture to the
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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
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to 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 authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section 614 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. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 614, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
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 any further
act on the part of the Trustee or the Authenticating Agent. As soon as
practicable thereafter, the successor Authenticating Agent shall mail a notice
of its succession to the Trustee and the Company.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice or
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 may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Company agrees to indemnify each Authenticating Agent on the same terms and
conditions as set forth in Section 607.
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 the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
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This is one of the Securities of the series designated there referred
to in the within-mentioned Indenture.
The Chase Manhattan Bank
As Trustee
By:____________________________________________
As Authenticating Agent
By:____________________________________________
Authorized Officer
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) 15 days after each Regular Record Date, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of
the registered Securities of each series as of such Regular Record Date; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished; excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
The Company shall also be required to furnish to the Trustee at all
such times set forth above all information in the possession or control of the
Company or any of its Paying Agents, other than the Trustee, as to the names and
addresses of the Holders of Bearer Securities of all series; provided, however,
that the Company shall have no obligation to investigate any matter relating to
any Holders of Bearer Securities of any series.
Section 702 Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders contained in the most recent list furnished
to the Trustee as provided in Section 701 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 701 upon receipt of a
new list so furnished.
The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
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Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703 Reports by Trustee. The Trustee shall transmit to Holders
such reports concerning the Trustee and its actions under this Indenture as may
be required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. If required by Section 313(a) of the Trust Indenture
Act, the Trustee shall, within 60 days after each June 1 following the date of
this Indenture, deliver to Holders a brief report, dated as of such June 1,
which complies with the provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 704 Reports by Company. Unless otherwise specified with
respect to a particular series of Securities pursuant to Section 301, the
Company shall file with the Trustee and the Commission, and transmit to Holders,
such information, documents and other reports, and such summaries thereof, as
may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801 Company May Consolidate, etc., on Certain Terms. Nothing
contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of the Company with or into any other Person or Persons
(whether or not affiliated with the Company), or successive consolidations or
mergers in which the Company or its successor or successors shall be a party or
parties, or shall prevent any conveyance or transfer of the properties and
assets of the Company as an entirety or substantially as an entirety to any
other Person (whether or not affiliated with the Company) lawfully entitled to
acquire the same; provided, however, and the Company hereby covenants and
agrees, that upon any such consolidation, merger, conveyance or transfer, (i)
the due and punctual payment of the principal of and premium, if any, and
interest on all of the Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed by the Company, shall be expressly assumed, by
indenture supplemental hereto, in form reasonably satisfactory to the Trustee,
executed and delivered to the Trustee by the Person (if other than the Company)
formed by such consolidation, or into which the Company shall have been merged,
or by the Person which shall have acquired such properties and assets, and (ii)
the Company shall deliver to the Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, conveyance or transfer
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and such supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with and that it constitutes the legal, valid and binding obligation of the
successor, subject to the customary exceptions.
Section 802 Successor Substituted. Upon any consolidation of the
Company with, or merger of the Company into, any other Person or any conveyance
or transfer of the properties and assets of the Company as an entirety or
substantially as an entirety in accordance with Section 801, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance or, transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein, and thereafter the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 901 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form reasonably satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Securities, stating
that such additional Events of Default are expressly being included solely
for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, to or facilitate the issuance of
Securities in uncertificated form to permit Bearer Securities to be issued
in exchange for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized denominations
or to permit the issuance of Securities of any series in uncertificated
form, provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect; or
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(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security Outstanding;
or
(6) to secure the Securities or to provide that any of the Company's
obligations under any series of the Securities or this Indenture shall be
guaranteed and the terms and conditions for the release or substitution of
such security or guarantee; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor or other Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 611; 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; provided, that such action pursuant
to this Clause (9) shall not adversely affect the interests of the Holders
of Securities of any series in any material respect.
Section 902 Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of all series affected by such supplemental indenture
(voting as one class), by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by 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 any supplemental indenture or modifying in
any manner the rights of the Holders of Securities under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change the coin, currency or currency unit in
which any Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or adversely affect the right to convert any
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Security into shares of Common Stock or other securities or property of the
Company as may be provided pursuant to Section 301; or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture; or
(3) modify any of the provisions of this Section, Section 513 or
Section 1005, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section 902 and Section 1005 or
the deletion of this proviso, in accordance with the requirements of
Section 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenants or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section
902 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
Section 903 Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture and that such supplemental indenture constitutes the legal, valid
and binding obligation of the Company, subject to customary exceptions. 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 in a material way.
Section 904 Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 905 Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
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Section 906 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
Section 1001 Payment of Principal, Premium and Interest. The Company
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and any premium and interest on the
Securities of that series in accordance with the terms of the Securities and
this Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities or except as otherwise provided in Section
306, 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. If so
provided in the terms of any series of Securities established as provided in
Section 301, the interest, if any, due in respect of any temporary Global
Security or permanent Global Security, together with any additional amounts
payable in respect thereof, as provided in the terms and conditions of such
Security, shall be payable only upon presentation of such Security to the
Trustee for notation thereon of the payment of such interest.
Section 1002 Maintenance of Office or Agency. If Securities of a
series are issuable only as Registered Securities, the Company will maintain in
each Place of Payment for such series an office or agency where Securities of
that series may be presented or surrendered for payment, where Securities of
that series may be surrendered for registration of transfer or exchange, where
Securities of that series that are convertible may be surrendered for
conversion, if applicable, and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain
(A) in the Borough of Manhattan, the City and State 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 or redemption,
where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related Coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise);
(B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United
States, an office or agency where Securities of that series and related
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Coupons, if any, may be presented and surrendered for payment (including
payment of any additional amounts payable on Securities of that series, if
so provided pursuant to Section 301); provided, however, that if the
Securities of that series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent for the
Securities of that series in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange; and
(C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series 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 or redemption and where notices and demands
to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee (in the case of
Registered Securities) and at the principal London office of the Trustee
(in the case of Bearer Securities), and the Company hereby appoints the
Trustee as its agent to receive all presentations, surrenders, notices and
demands.
No payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
the Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium and interest on Securities (including any
additional amounts payable on Securities of such series, if so provided pursuant
to Section 301) shall be made at the office of the Company's Paying Agent in the
Borough of Manhattan, the City and State of New York, if (but only if) payment
in Dollars of the full amount of such principal, premium, interest or additional
amounts, as the case may be, at all offices or agencies outside the United
States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
Section 1003 Money for Securities Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to any series
of Securities, it will, on or before each due date of the principal of and any
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premium or interest on any of the Securities of that series, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal and any premium or interest so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and Coupons, it will, prior to each due date of the
principal of and any premium or interest on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act. The Company will cause each Paying Agent for 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 1003, that such Paying Agent will (1) comply with
the provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(2) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security or Coupon shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in Borough of
Manhattan, the City of New York, New York notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 1004 Statement by Officers as to Default. Unless otherwise
specifically provided for with respect to any series of Securities under Section
301, the Company will deliver to the Trustee, on or before June 1 of each
calendar year or on or before such other day in each calendar year as the
Company and the Trustee may from time to time agree upon, an Officers'
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Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions, and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 1005 Waiver of Certain Covenants. Except as otherwise
specified as contemplated by Section 301 for Securities of such series, the
Company may, with respect to the Securities of any series, omit in any
particular instance to comply with any term, provision or condition set forth in
any covenant provided pursuant to Section 301(18), 901(2) or 901(7) for the
benefit of the Holders of such series or in Section 1004 or 1005 if before the
time for such compliance the Holders of not less than a majority in principal
amount of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 1101 Applicability of Article. Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
301 for such Securities) in accordance with this Article.
Section 1102 Election to Redeem; Notice to Trustee. The election of
the Company to redeem any Securities shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
In case of any redemption at the election of the Company, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be reasonably satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities (a) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (b) pursuant to an election of the
Company which is subject to a condition specified in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such restriction or
condition.
Section 1103 Selection by Trustee of Securities to be Redeemed. Except
in the case of a redemption in whole of the Bearer Securities or the Registered
Securities of such series, if less than all the Securities of any series are to
be redeemed, the particular securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
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selection for redemption of a portion of the principal amount of any Security
shall be an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security in the Currency in which the
Securities of such series are denominated. The portions of the principal amount
of Securities so selected for partial redemption shall be equal to the minimum
authorized denominations for Securities of such series in the Currency in which
the Securities of such series are denominated or any integral multiple thereof,
except as otherwise set forth in the applicable form of Securities. In any case
when more than one Registered Security of such series is registered in the same
name, the Trustee, in its discretion, may treat the aggregate principal amount
so registered as if it were represented by one Registered Security of such
series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in the case of any
Securities selected for partial redemption as aforesaid, the principal amount
thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104 Notice of Redemption. Notice of redemption shall be given
by first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all of the Outstanding Securities of any series and
of a specified tenor consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial redemption of any
such Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series and
of a specified tenor consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed;
(4) that on the Redemption Date the Redemption Price, together with
accrued interest, if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
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(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price and accrued interest, if any, unless it
shall have been specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required;
(6) that the redemption is for a sinking fund, if such is the case;
(7) such other matters as the Company shall deem desirable or
appropriate; and
(8) 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
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 305 or otherwise,
the last date on which such exchanges may be made.
Unless otherwise specified with respect to any Securities in
accordance with Section 301, with respect to any redemption of Securities at the
election of the Company, unless, upon the giving of notice of such redemption,
Defeasance shall have been effected with respect to such Securities pursuant to
Section 1302, such notice may state that such redemption shall be conditional
upon the receipt by the Trustee or the Paying Agent(s) for such Securities, on
or prior to the date fixed for such redemption, of money sufficient to pay the
principal of and any premium and interest on such Securities, in the Currency or
Currencies in which such Securities are denominated (except as provided pursuant
to Section 301) sufficient to pay the Redemption Price for such Securities or
any portions thereof which are to be redeemed on that date, and that if such
money shall not have been so received such notice shall be of no force or effect
and the Company shall not be required to redeem such Securities. In the event
that such notice of redemption contains such a condition and such money is not
so received, the redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the notice of
redemption was given, that such money was not so received and such redemption
was not required to be made, and the Trustee or Paying Agent(s) for the
Securities otherwise to have been redeemed shall promptly return to the Holders
thereof any of such Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed at the election of
the Company, and any notice of non-satisfaction of redemption as aforesaid,
shall be given by the Company or, at the Company's request, by the Trustee in
the name and at the expense of the Company. Subject to the preceding paragraph,
any such notice of redemption shall be irrevocable.
Section 1105 Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, and the conditions, if any, set forth
in such notice having been satisfied, the Securities or portions thereof so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Sections 301 or 312) therein
specified, and from and after such date (unless, in the case of an unconditional
notice of redemption, the Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or portions thereof, if
interest-bearing, shall cease to bear interest. Upon surrender of any such
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Security for redemption in accordance with said notice, such Security or portion
thereof shall be paid by the Company at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided, however;
(a) that installments on interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States (except as otherwise provided
in Section 1002) and, unless otherwise specified as contemplated in Section 301,
only upon presentation and surrender of Coupons for such interest;
(b) that, unless otherwise specified as contemplated by Section 301,
installments of interest on Registered Securities which have a Stated Maturity
on or prior to the Redemption Date for such Securities shall be payable
according to the terms of such Securities and the provisions of Section 307;
(c) that no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such Security, and
(d) that, unless otherwise specified as contemplated by Section 301,
installments of interest whose Stated Maturity is on or prior to the Redemption
Date will 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
307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
On or before 10:00 a.m. New York Time on the Redemption Date, the
Company shall deposit with the Paying Agent funds sufficient to pay the
Redemption Price plus accrued interest, if any, of all Securities to be redeemed
on that date.
Section 1106 Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at a Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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ARTICLE XII
SINKING FUNDS
Section 1201 Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 301 for such
Securities.
The minimum amount of any sinking fund payment provided for by the
terms of Securities 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 is herein referred to as an "optional sinking fund payment".
If provided for by the terms of any Securities, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of Securities as
provided for by the terms of such Securities.
Section 1202 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any
previously called for redemption) and (2) may apply as a credit Securities of a
series which have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted optional
sinking fund payments and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and
credited for such purpose by the Trustee at the Redemption Price, as specified
in such Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1203 Redemption of Securities for Sinking Fund. Not less than
45 days prior to each sinking fund payment date for any Securities, the Company
will deliver to the Trustee an Officers' Certificate specifying the amount of
the next ensuing sinking fund payment for such Securities pursuant to the terms
of such Securities, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities pursuant to Section 1202 and stating the
basis for such credit and that such Securities have not been previously so
credited and will also deliver to the Trustee any Securities to be so delivered.
Not less than 30 days prior to each such sinking fund payment date, the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1105 and 1106. On or before 10:00 a.m. New York Time on the
sinking fund payment date, the Company shall deposit with the Paying Agent funds
sufficient to pay the amounts due plus accrued interest, if any.
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ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301 Applicability of Article. Unless, pursuant to Section
301, provision is made for either or both of (a) defeasance of any Securities or
any series of Securities under Section 1302 and (b) covenant defeasance of any
Securities or any series under Section 1303 shall not apply to such Securities
of a series, then the provisions of either or both of Section 1302 and Section
1303, as the case may be, together with Sections 1304 and 1305, shall be
applicable to the Outstanding Securities of such series upon compliance with the
conditions set forth in this Article.
Section 1302 Defeasance and Discharge. The Company may cause itself to
be discharged from its obligations with respect to any Securities or any series
of Securities on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (1) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 1304 and as more fully set forth in such Section, payments in respect of
the principal of and any premium and interest on such Securities when payments
are due, (2) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1003, and with respect to the Trustee under
Section 607, (3) the rights, powers, trusts, duties, and immunities of the
Trustee hereunder and (4) this Article. Subject to compliance with this Article,
Defeasance with respect to any Securities or any series of Securities by the
Company is permitted under this Section 1302 notwithstanding the prior exercise
of its option under Section 1303 with respect to such Securities. Following a
Defeasance, payment of such Securities may not be accelerated because of an
Event of Default.
Section 1303 Covenant Defeasance. The Company may cause itself to be
released from any covenant provided pursuant to Section 301(18), 901(2), 901(6)
or 901(7) with respect to any Securities or any series of Securities for the
benefit of the Holders of such Securities and the occurrence of any event
specified in Sections 501(4) (with respect to any such covenants provide
pursuant to Section 301(18), 901(2), 901(6), 901(7)), 501(7) shall be deemed not
to be or result in an Event of Default with respect to such Securities as
provided in this Section, in each case on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter called "Covenant Defeasance."))
For this purpose, such Covenant Defeasance means that, with respect to the such
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified
Section (to the extent so specified in the case of Section 501(4)) whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any such Section to any other provision
herein or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
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Section 1304 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions precedent to application of either Section
1302 or Section 1303 to any Securities or any series of Securities, as the case
may be.
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee 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, (A)
money in an amount, or (B) Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms without reinvestment thereof will provide, not
later than the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the case of (B) or (C), 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 to pay and discharge,
the principal of and any premium, and interest on such Securities on the
respective Stated Maturities or on any Redemption Date established pursuant
to Clause (3) below, in accordance with the terms of this Indenture and
such Securities. As used herein, "Government Obligation" means (x) any
security which is (i) a direct obligation of the United States of America
or the government which issued the foreign currency in which such
Securities 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 such Securities
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 (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depository
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any Government Obligation which is
specified in clause (x) above and held by such bank for the account of the
holder of such depository receipt, or with respect to any specific payment
of principal or interest on any Government Obligation which is so specified
and held, 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 principal
of or interest on the Government Obligation evidenced by such depository
receipt.
(2) No 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
shall have occurred and be continuing on the date of such deposit or with
regard to any such event specified in Sections 501(5) and (6), at any time
during the period ending on or prior to the 90th day after the date of such
deposit or, (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(3) If the Securities are to be redeemed prior to Stated Maturity
(other than from mandatory sinking fund payments or analogous payments),
notice of such redemption shall have been duly given pursuant to this
Indenture or provision therefor reasonably satisfactory to the Trustee
shall have been made.
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(4) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent Defeasance or Covenant Defeasance have been complied with.
Section 1305 Deposited Money and Government Obligations to be Held in
Trust. Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (including the proceeds thereof) deposited with
the Trustee pursuant to Section 1304 in respect of any Securities shall be held
in trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities, of all sums due and to
become due thereon in respect of principal and any premium, and interest, but
such money so held need not be segregated from other funds except to the extent
required by law.
The Company 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 1304 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 Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations held by it as provided in Section 1304 with
respect to any Securities 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 Defeasance or Covenant Defeasance, as the
case may be, with respect to such Securities.
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1401 Indenture and Securities Solely Corporate Obligations. No
recourse for the payment of the principal of or any premium or interest on any
Security, or for any claim based thereon or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement of the Company in
this Indenture or in any supplemental indenture, or in any Security, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or any successor corporation, either directly or through
the Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of the Securities.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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ARTICLE XV
HOLDERS' MEETINGS
Section 1501 Purposes of Meetings. A meeting of Holders of any or all
series may be called at any time and from time to time pursuant to the
provisions of this Article Fifteen for any of the following purposes:
(1) to give any notice to the Company or to the Trustee for such
series, or to give any directions to the Trustee for such series, or to
consent to the waiving of any default hereunder and its consequences, or to
take any other action authorized to be taken by Holders pursuant to any of
the provisions of Article Five;
(2) to remove the Trustee for such series and appoint a successor
Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 902; or
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Outstanding
Securities of any one or more or all series, as the case may be, under any
other provision of this Indenture or under applicable law.
Section 1502 Call of Meetings by Trustee. The Trustee for any series
may at any time call a meeting of Holders of such series to take any action
specified in Section 1501, to be held at such time or times and at such place or
places as the Trustee for such series shall determine. Notice of every meeting
of the Holders 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 to Holders of such series in the manner and to the extent
provided in Section 106. Unless otherwise specified in this Indenture, such
notice shall be given not less than 10 days nor more than 90 days prior to the
date fixed for the meeting.
Section 1503 Call of Meetings By Company Or Holders. In case at any
time the Company, pursuant to a Board Resolution, or the Holders of at least a
majority of the Outstanding Securities shall have requested the Trustee to call
a meeting of Holders of any or all such series by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have given the notice of such meeting within 10 days after the
receipt of such request, then the Company or such Holders may determine the time
or times and the place or places for such meetings and may call such meetings to
take any action authorized in Section 1501, by giving notice thereof as provided
in Section 1502.
Section 1504 Qualifications For Voting. To be entitled to vote at any
meeting of Holders a Person shall be (a) a Holder of a Security of the series
with respect to which such meeting is being held or (b) a Person appointed by an
instrument in writing as agent or proxy by such Holder. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders shall be
the Persons entitled to vote at such meeting and their counsel, any
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representatives of the Trustee for the series with respect to which such meeting
is being held and its counsel and any representatives of the Company and its
counsel.
Section 1505 Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee for any series may make such reasonable regulations as it
may deem advisable for any meeting of Holders of such series, in regard to proof
of the holding of Securities of such series and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in Section 1503, in which case
the Company or the Holders 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 at least a majority vote of the
meeting.
Subject to the provisos in the definition of "Outstanding," at any
meeting each Holder of a Security of the series with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 principal amount (or such other amount as shall be specified as
contemplated by section 301) of Securities of such series held or represented by
such Holder 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 other than by virtue of Outstanding Securities of
such series held by him or her or instruments in writing duly designating him or
her as the person to vote on behalf of Holders of Securities of such series. Any
meeting of Holders with respect to which a meeting was duly called pursuant to
the provisions of Section 1502 or 1503 may be adjourned from time to time by at
least a majority of such Holders present and the meeting may be held as so
adjourned without further notice.
Section 1506 Voting. The vote upon any resolution submitted to any
meeting of Holders with respect to which such meeting is being held shall be by
written ballots on which shall be subscribed the signatures of such Holders or
of their representatives by proxy and the serial number or numbers of the
Securities 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 in duplicate of the proceedings of each
meeting of Holders shall be taken and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
transmitted as provided in Section 1502. The record shall show the serial
numbers of the Securities voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee. Any record
so signed and verified shall be conclusive evidence of the matters therein
stated.
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Section 1507 No Delay of Rights By Meeting. Nothing contained in this
Article Fifteen shall be deemed or construed to authorize or permit, by reason
of any call of a meeting of Holders or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee or to any Holder
under any of the provisions of this Indenture or of the Securities of any
series.
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IN WITNESS WHEREOF, the parties hereto have cause this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Pfizer Inc.
Attest: /s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxxxxx X. Xxxxx
------------------------- ------------------------------------
The Chase Manhattan Bank
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------- ------------------------------------
EXHIBIT A
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR INTEREST PRIOR TO AN 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 [ ] principal amount of the above captioned Securities held by you for our
account (i) is owned by person(s) that are not United States person(s) (as
defined below), (ii) is owned by United States person(s) that (a) are foreign
branches of United States financial institutions (as defined in Section
1.165-12(c)(1)(v) of the United States Treasury regulations) ("financial
institutions") purchasing for their own account or for resale, or (b) acquired
the Securities through foreign branches of United States financial institutions
and are holding the Securities through such United States financial institutions
on the date hereof (as such terms "acquired through" and "holding through" are
described in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(6)) (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 the Company
or the Company's agent that it 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 Treasury regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for the purpose of resale during the
restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury regulations), and in addition if the owner of the Securities 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 the purpose
of resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
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 beneficial
interest in the temporary global Security 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 [ ] principal amount
of Securities held by you for our account as to which we are not able to provide
a certificate in this form. We understand that exchange of such portion of the
temporary Global Security for definitive Bearer Securities or interests in a
permanent Global Security cannot be made until we are able to provide a
certificate in this form.
We understand that this certificate is required in connection with
certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
A-1
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.
"United States person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States and any estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia), its territories and possessions and other areas subject
to its jurisdiction.
Dated: _________, 20___
[To be dated no earlier than the
10th day before the Exchange Date]
By:_________________________________________________
As, or as agent for, the beneficial owner(s) of
the portion of the temporary global Note to which
this certificate relates.
A-2
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND
CLEARSTREAM LUXEMBOURG IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL NOTE]
CERTIFICATE
----------------------
[Insert title or sufficient description of Securities to be delivered]
The undersigned certifies that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture as of the date hereof, [ ] principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
United States person(s) (as defined below), (ii) is owned by United States
person(s) that (a) are foreign branches of United States financial institutions
(as defined in Section 1.165-12(c)(1)(v) of the United States Treasury
regulations) ("financial institutions") purchasing for their own account or for
resale, or (b) 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 (as such terms "acquired through" and
"holding through" are described in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(6)) (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through its agent, that
we may advise the Company or the Company's agent that it 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 Treasury regulations thereunder), or (iii) is owned by
United States or foreign financial institution(s) for the purpose of resale
during the restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of
the United States Treasury regulations), and in addition United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Securities for the purpose of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
We further certify (i) that we are not making available for exchange
or collection of any interest any portion of the temporary Global Security
excepted in such certifications and (ii) that 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 collection of any
interest are no longer true and cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection with
certain tax laws and regulations of 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.
B-1
"United States person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States and any estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia), its territories and possessions and other areas subject
to its jurisdiction.
Dated: ____________, 20__
[To be dated no earlier than the
Exchange Date]
By:______________________________________________
[XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the Euro-Clear
System] [Clearstream Banking, societe anonyme]
B-2
