INGERSOLL-RAND COMPANY LIMITED, as ISSUER, INGERSOLL-RAND COMPANY, as GUARANTOR and WELLS FARGO BANK, N.A., as TRUSTEE INDENTURE Dated as of May 24, 2005 Debt Securities
XXXXXXXXX-XXXX COMPANY LIMITED, as ISSUER,
XXXXXXXXX-XXXX
COMPANY, as GUARANTOR
and
XXXXX
FARGO BANK, N.A., as TRUSTEE
_____________
Dated
as of May 24, 2005
______________
Debt
Securities
Table of Contents
Page
RECITALS
OF THE COMPANY
|
1
| |
ARTICLE
ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
1
| |
SECTION
101. Definitions.
|
1
| |
Act |
2
| |
Affiliate
|
2
| |
Attributable
Debt
|
2
| |
Authenticating
Agent
|
2
| |
Board
of Directors
|
2
| |
Board
Resolution
|
2
| |
Business
Day
|
2
| |
Calculation
Agent
|
3
| |
Commission
|
3
| |
Common
Shares
|
3
| |
Company
|
3
| |
Company
Request
|
3
| |
Company
Order
|
3
| |
Corporate
Trust Office
|
3
| |
Defaulted
Interest
|
3
| |
Dollar
|
3
| |
Event
of Default
|
3
| |
Funded
Indebtedness
|
4
| |
Global
Security
|
4
| |
Guarantee
|
4
| |
Guaranteed
Securities
|
4
| |
Guarantor
|
4
| |
Holder
|
4
| |
|
4
| |
Interest
|
4
| |
Interest
Payment Date
|
4
|
i
Page
Judgment
Currency
|
4
| |
Maturity
|
4
| |
Mortgage
|
5
| |
Officer’s
Certificate
|
5
| |
Opinion
of Counsel
|
5
| |
Original
Issue Discount Security
|
5
| |
Outstanding
|
5
| |
Paying
Agent
|
6
| |
Person
|
6
| |
Place
of Payment
|
6
| |
Predecessor
Security
|
6
| |
Principal
Property
|
6
| |
Process
Agent
|
6
| |
Redemption
Date
|
7
| |
Redemption
Price
|
7
| |
Regular
Record Date
|
7
| |
Required
Currency
|
7
| |
Responsible
Officer
|
7
| |
Restricted
Subsidiary
|
7
| |
Sale
and Leaseback Transaction
|
7
| |
Securities
|
7
| |
Security
Register
|
7
| |
Security
Registrar
|
7
| |
shareholders
equity in the Company and its consolidated Subsidiaries
|
7
| |
Special
Record Date
|
7
| |
Stated
Maturity
|
8
| |
Subsidiary
|
8
| |
Trustee
|
8
| |
Trust
Indenture Act
|
8
| |
U.S.
Depositary
|
8
| |
U.S.
Government Obligations
|
8
| |
Vice
President
|
8
| |
SECTION
102. Compliance Certificates and Opinions.
|
8
|
ii
Page
SECTION
103. Form of Documents Delivered to Trustee.
|
9
| |
SECTION
104. Acts of Holders.
|
10
| |
SECTION
105. Notices, Etc., to Trustee, Guarantor and Company.
|
10
| |
SECTION
106. Notice to Holders; Waiver.
|
11
| |
SECTION
107. Conflict with Trust Indenture Act.
|
11
| |
SECTION
108. Effect of Headings and Table of Contents.
|
11
| |
SECTION
109. Successors and Assigns.
|
11
| |
SECTION
110. Separability Clause.
|
12
| |
SECTION
111. Benefits of Indenture.
|
12
| |
SECTION
112. GOVERNING LAW.
|
12
| |
SECTION
113. Legal Holidays.
|
12
| |
SECTION
114. Incorporators, Shareholders, Officers and Directors of the Company
and the Guarantor Exempt from Individual Liability.
|
12
| |
SECTION
115. Counterparts.
|
13
| |
SECTION
116. Currency Exchange.
|
13
| |
SECTION
117. Judgment Currency; Consent to Jurisdiction and Service.
|
13
| |
ARTICLE
TWO SECURITY FORMS
|
14
| |
SECTION
201. Forms Generally.
|
14
| |
SECTION
202. Form of Face of Security.
|
15
| |
SECTION
203. Form of Reverse of Security.
|
17
| |
SECTION
204. Form of Trustee’s Certificate of Authentication.
|
21
| |
SECTION
205. Securities in Global Form.
|
21
| |
SECTION
206. Guarantee; Form of Guarantee.
|
22
| |
ARTICLE
THREE THE SECURITIES
|
23
| |
SECTION
301. Amount Unlimited; Issuable in Series.
|
23
| |
SECTION
302. Denominations.
|
26
| |
SECTION
303. Execution, Authentication, Delivery and Dating.
|
26
| |
SECTION
304. Temporary Securities.
|
27
| |
SECTION
305. Registration, Registration of Transfer and Exchange.
|
28
| |
SECTION
306. Mutilated, Destroyed, Lost and Stolen Securities.
|
31
| |
SECTION
307. Payment of Interest; Interest Rights Preserved.
|
32
| |
SECTION
308. Persons Deemed Owners.
|
33
| |
SECTION
309. Cancellation.
|
33
|
iii
Page
SECTION
310. Computation of Interest.
|
34
| |
SECTION
311. CUSIP Numbers.
|
34
| |
ARTICLE
FOUR SATISFACTION AND DISCHARGE
|
34
| |
SECTION
401. Satisfaction and Discharge of Indenture.
|
34
| |
SECTION
402. Application of Trust Money.
|
36
| |
SECTION
403. Satisfaction, Discharge and Defeasance of Securities of any
Series.
|
36
| |
SECTION
404. Reinstatement
|
38
| |
ARTICLE
FIVE REMEDIES
|
39
| |
SECTION
501. Events of Default.
|
39
| |
SECTION
502. Acceleration of Maturity; Rescission and Annulment.
|
40
| |
SECTION
503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
|
42
| |
SECTION
504. Trustee May File Proofs of Claim.
|
42
| |
SECTION
505. Trustee May Enforce Claims Without Possession of
Securities.
|
43
| |
SECTION
506. Application of Money Collected.
|
43
| |
SECTION
507. Limitation on Suits.
|
44
| |
SECTION
508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
|
45
| |
SECTION
509. Restoration of Rights and Remedies.
|
45
| |
SECTION
510. Rights and Remedies Cumulative.
|
45
| |
SECTION
511. Delay or Omission Not Waiver.
|
45
| |
SECTION
512. Control by Holders.
|
46
| |
SECTION
513. Waiver of Past Defaults.
|
46
| |
SECTION
514. Undertaking for Costs.
|
46
| |
SECTION
515. Waiver of Stay or Extension Laws.
|
47
| |
ARTICLE
SIX THE TRUSTEE
|
47
| |
SECTION
601. Certain Duties and Responsibilities.
|
47
| |
SECTION
602. Notice of Defaults.
|
48
| |
SECTION
603. Certain Rights of Trustee.
|
48
| |
SECTION
604. Not Responsible for Recitals or Issuance of Securities.
|
49
| |
SECTION
605. May Hold Securities.
|
50
| |
SECTION
606. Money Held in Trust.
|
50
| |
SECTION
607. Compensation and Reimbursement.
|
50
| |
SECTION
608. Disqualification; Conflicting Interests.
|
51
|
iv
SECTION
609. Corporate Trustee Required; Different Trustees for Different Series;
Eligibility.
|
51
| |
SECTION
610. Resignation and Removal; Appointment of Successor.
|
52
| |
SECTION
611. Acceptance of Appointment by Successor.
|
53
| |
SECTION
612. Merger, Conversion, Consolidation or Succession to
Business.
|
54
| |
SECTION
613. Preferential Collection of Claims Against the Company or the
Guarantor.
|
54
| |
SECTION
614. Authenticating Agents.
|
55
| |
ARTICLE
SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
56
| |
SECTION
701. Company to Furnish Trustee Names and Addresses of
Holders.
|
56
| |
SECTION
702. Preservation of Information; Communications to Holders.
|
57
| |
SECTION
703. Reports by Trustee.
|
58
| |
SECTION
704. Reports by Company.
|
58
| |
ARTICLE
EIGHT CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE
|
59
| |
SECTION
801. Company and Guarantor May Consolidate, Etc., on Certain
Terms.
|
59
| |
SECTION
802. Securities to be Secured in Certain Events.
|
61
| |
SECTION
803. Successor Corporation to be Substituted.
|
61
| |
SECTION
804. Opinion of Counsel to be Given to Trustee.
|
61
| |
ARTICLE
NINE SUPPLEMENTAL INDENTURES
|
62
| |
SECTION
901. Supplemental Indentures without Consent of Holders.
|
62
| |
SECTION
902. Supplemental Indentures with Consent of Holders.
|
63
| |
SECTION
903. Execution of Supplemental Indentures.
|
64
| |
SECTION
904. Effect of Supplemental Indentures.
|
64
| |
SECTION
905. Conformity with Trust Indenture Act.
|
65
| |
SECTION
906. Reference in Securities to Supplemental Indentures.
|
65
| |
ARTICLE
TEN COVENANTS
|
65
| |
SECTION
1001. Payment of Principal, Premium and Interest.
|
65
| |
SECTION
1002. Maintenance of Office or Agency.
|
65
| |
SECTION
1003. Money for Securities Payments to Be Held in Trust.
|
66
| |
SECTION
1004. Limitation on Liens.
|
67
| |
SECTION
1005. Limitation on Sale and Leaseback Transactions.
|
69
| |
SECTION
1006. Defeasance of Certain Obligations.
|
70
|
v
SECTION
1007. Statement by Officer as to Default.
|
71
| |
SECTION
1008. Waiver
of Certain Covenants. |
72
| |
SECTION
1009. Calculation of Original Issue Discount.
|
72
| |
ARTICLE
ELEVEN REDEMPTION OF SECURITIES
|
72
| |
SECTION
1101. Applicability of Article.
|
72
| |
SECTION
1102. Election to Redeem; Notice to Trustee.
|
72
| |
SECTION
1103. Selection by Trustee of Securities to Be Redeemed.
|
73
| |
SECTION
1104. Notice of Redemption.
|
73
| |
SECTION
1105. Deposit of Redemption Price.
|
74
| |
SECTION
1106. Securities Payable on Redemption Date.
|
74
| |
SECTION
1107. Securities Redeemed in Part.
|
75
| |
ARTICLE
TWELVE SINKING FUNDS
|
75
| |
SECTION
1201. Applicability of Article.
|
75
| |
SECTION
1202. Satisfaction of Sinking Fund Payments with Securities.
|
75
| |
SECTION
1203. Redemption of Securities for Sinking Fund.
|
75
| |
ARTICLE
THIRTEEN GUARANTEE OF GUARANTEED SECURITIES
|
77
| |
SECTION
1301. Guarantee.
|
77
| |
SECTION
1302. Execution and Delivery of Guarantees.
|
78
| |
SECTION
1303. Notice to Trustee.
|
78
| |
SECTION
1304. This Article Not to Prevent Events of Default.
|
78
| |
SECTION
1305. Amendment, Etc.
|
78
| |
SECTION
1306. Limitation on Liability.
|
78
|
vi
Reconciliation
and tie between Trust Indenture Act of 1939 and Indenture, dated as of May 24,
2005.
Trust
Indenture Act Section
|
Indenture
Section
| |
§
310 (a)(1) (a)(2) (a)(3) (a)(4) (b) |
609
609
Not
Applicable
Not
Xxxxxxxxxx
000,
000 | |
§
000 (x) (x) (b)(0) |
000
000
000(a) | |
§
312 (a) (b) (c) |
701,
702(a)
702(b)
702(c) | |
§
313 (a) (b)(1) (b)(2) (c) (d) |
703(a)
Not
Applicable
703(a)
703(a)
703(b) | |
§
314 (a) (b) (c)(1) (c)(2) (c)(3) (d) (e) |
704
Not
Applicable
102
102
Not
Applicable
Not
Applicable
102 | |
§
315 (a) (b) (c) (d) (d)(1) (d)(2) (d)(3) (e) |
601(a)
602
601(b)
601(c)
601(c)(1)
601(c)(2)
601(c)(3)
514 | |
§
316 (a)(1)(A) (a)(1)(B) (a)(2) (b) |
502,
512
513
Not
Applicable
508 | |
§
317 (a)(1) (a)(2) (b) |
000
000
0000 | |
§
318 (a) |
107 |
Note:
This reconciliation and tie shall not, for any purpose, be deemed to be a part
of this Indenture.
INDENTURE,
dated as of May 24, 2005 among XXXXXXXXX-XXXX COMPANY LIMITED, a company duly
organized and existing under the laws of Bermuda (herein called the “Company”),
having an office at Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxxx, XX00 Xxxxxxx,
XXXXXXXXX-XXXX COMPANY, a corporation duly organized and existing under the laws
of the State of New Jersey (herein called the “Guarantor”), having an office at
000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000, and Xxxxx Fargo Bank, N.A.,
a national banking association, as Trustee (herein called the
“Trustee”).
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.
The
Company, directly or indirectly, owns beneficially 100% of the issued share
capital of the Guarantor.
All
things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
The
Guarantor has duly authorized the execution and delivery of this Indenture to
provide for the Guarantee of the Guaranteed Securities provided for
herein.
All
things necessary to make this Indenture a valid agreement of the Guarantor, in
accordance with its terms, have been done.
For and
in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE
ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
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;
2
(3) all
accounting terms not otherwise defined herein have the meanings assigned to them
in accordance with generally accepted accounting principles in the United States
of America, 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 at the date of such computation; and
(4) the words
“herein”, “hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision.
Certain
terms, used principally in Article Six, are defined in that
Article.
“Act” when
used with respect to any Holder, has the meaning specified in Section
104.
“Affiliate” of any
specified person means any other person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
person. For the purposes of this definition, “control” when used with respect to
any specified person means the power to direct the management and policies of
such person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Attributable
Debt” has the
meaning specified in Section 1004(c)(1).
“Authenticating
Agent” means
any person authorized to authenticate and deliver Securities on behalf of the
Trustee for the Securities of any series pursuant to Section 614.
“Board of
Directors” means
either the Board of Directors of the Company or the Guarantor, as applicable, or
an executive committee of such Board or any other duly authorized committee of
that Board to which the powers of that Board have been lawfully
delegated.
“Board
Resolution” means a
copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company or the Guarantor, as applicable, to have been duly adopted by the
Company’s Board of Directors or the Guarantor’s Board of Directors, as the case
may be, and to be in full force and effect on the date of such certification,
and delivered to the Trustee for the Securities of any series.
“Business
Day”, when
used with respect to any Place of Payment, means each day which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law to close.
“Calculation
Agent” means any person authorized by the Company to determine the floating rate
interest rate of the Securities. Initially, Xxxxx Fargo Bank, N.A. shall act as
calculation agent in connection with the Securities. The Calculation Agent shall
serve as the calculation agent hereunder unless and until a successor
calculation agent is appointed by the Company.
3
“Commission” means
the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
“Common
Shares” means the common shares, par value $1 per share, of the
Company.
“Company” means
the person named as the “Company” in the first paragraph of this instrument
until a successor corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Company” shall mean such successor
corporation.
“Company
Request” or “Company Order” means,
in the case of the Company, a written request or order signed in the name of the
Company, by its Chairman of the Board, a Deputy Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee for the
Securities of any series and, in the case of the Guarantor, a written request or
order signed in the name of the Guarantor by its Chairman of the Board, a Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary and delivered to
the Trustee for the Securities of any series.
“Corporate
Trust Office” means
the principal office of the Trustee for the Securities of any series at which at
any particular time its corporate trust business shall be administered, which at
the date of this Indenture is 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, XX 00000-0000,
Attention: Corporate Trust Trustee Administration, Reference Number:
MAC-N2702-011.
“Defaulted
Interest” has the
meaning specified in Section 307.
“Dollar”
or “$” means a dollar or other equivalent unit in such coin or currency of the
United States of America as at the time shall be legal tender for the payment of
public and private debts.
“Event of
Default” unless
otherwise specified in the supplemental indenture, Board Resolution or Officer’s
Certificate establishing a series of Securities, has the meaning specified in
Section 501.
“Funded
Indebtedness” means
indebtedness created, assumed or guaranteed by a person for money borrowed which
matures by its terms, or is renewable by the borrower to a date, more than one
year after the date of its original creation, assumption or
guarantee.
4
“Global
Security” means a Security evidencing all or part of a series of Securities,
including, without limitation, any temporary or permanent Global
Securities.
“Guarantee”
means the guarantee by the Guarantor as endorsed on each Guaranteed Security and
authenticated and delivered pursuant to this Indenture, which guarantee shall
include the provisions set forth in Article Thirteen of this Indenture.
“Guaranteed” shall have a meaning correlative to the foregoing.
“Guaranteed
Securities” means Securities which are Guaranteed by the Guarantor and
authenticated and delivered under this Indenture, and which are designated as
Guaranteed Securities pursuant to Section 301(16).
“Guarantor”
means the Person named as the “Guarantor” in the first paragraph of this
Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Guarantor” shall mean
such successor Person.
“Holder” means a
person in whose name a Security is registered in the Security
Register.
“Indenture” means
this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms 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.
“Interest
Payment Date”, when
used with respect to any Security, means the Stated Maturity of an installment
of interest on such Security.
“Judgment
Currency” has the meaning specified in Section 117.
“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.
“Mortgage” has the
meaning specified in Section 1004(c)(3).
“Officer’s
Certificate” means,
in the case of the Company, a certificate signed by the Chairman of the Board, a
Deputy Chairman of the Board, the President or a Vice President of the Company,
and in the case of the Guarantor, a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President of the
Guarantor, and, in each case, delivered to the Trustee for the Securities of any
series. Each such certificate shall include the statements provided for in
Section 102 if and to the extent required by this Indenture.
5
“Opinion
of Counsel” means a
written opinion of counsel, who may be an employee of or regular counsel for the
Company or the Guarantor, as the case may be, or may be other counsel reasonably
satisfactory to the Trustee for the Securities of any series. Each such opinion
shall include the statements provided for in Section 102 if and to the extent
required by this Indenture.
“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:
(i) Securities
theretofore cancelled by the Trustee for such Securities or delivered to such
Trustee for cancellation;
(ii) Securities
or portions thereof, for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee for such Securities 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 reasonably satisfactory
to such Trustee has been made; and
(iii) Securities
which have been paid pursuant to Section 306 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have
been presented to the Trustee for such Securities proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company,
provided,
however, that in
determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, (a) the principal amount of an Original
Issue Discount Security that shall be deemed to be Outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as of
the date of such determination upon a declaration of acceleration of the
maturity thereof pursuant to Section 502, and (b) Securities owned by the
Company, the Guarantor or any other obligor upon the Securities or any Affiliate
of the Company, the Guarantor or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that in determining whether the Trustee for
such Securities shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a
Responsible Officer of such Trustee actually knows to be so owned shall be so
disregarded. Securities so owned as described in (b) above which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of such Trustee the pledgee’s right so to act with respect
to such Securities and that the pledgee is not the Company, the Guarantor or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
6
“Paying
Agent” means
any person authorized by the Company to pay the principal of (and premium, if
any) or interest, if any, on any Securities on behalf of the
Company.
“Person”
means any individual, corporation, partnership, joint venture, joint-stock
company, trust unincorporated organization or government or any agency or
political subdivision thereof.
“Place of
Payment”, when
used with respect to the Securities of any series means the place or places
where the principal of (and premium, if any) and interest, if any, on the
Securities of that series are payable as specified in or as contemplated by
Section 301.
“Predecessor
Security” of any
particular Security means every previous Security evidencing all or a portion of
the same debt as that evidenced by such particular Security; and, for the
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.
“Principal
Property” means
any manufacturing plant or other manufacturing facility of the Company or any
Restricted Subsidiary, which plant or facility is located within the United
States of America, except any such plant or facility which the Board of
Directors of the Company by resolution declares is not of material importance to
the total business conducted by the Company and its Restricted
Subsidiaries.
“Process
Agent” has the meaning specified in Section 117.
“Redemption
Date”, when
used with respect to any Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
“Redemption
Price”, when
used with respect to any Security to be redeemed, means the price at which it is
to be redeemed pursuant to this Indenture, exclusive of accrued and unpaid
interest.
“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.
“Required
Currency” has the meaning specified in Section 117.
“Responsible
Officer”, where
used with respect to the Trustee for the Securities of any series, means
any
officer within the corporate trust department of such Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of such Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person’s knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
7
“Restricted
Subsidiary” means
any Subsidiary which owns a Principal Property excluding
however, any
corporation the greater part of the operating assets of which are located or the
principal business of which is carried on outside the United States of
America.
“Sale and
Leaseback Transaction” has the
meaning specified in Section 1005.
“Securities” has the
meaning stated in the first recital of this Indenture and more particularly
means any Securities authenticated and delivered under this
Indenture.
“Security
Register” and “Security Registrar” have the
respective meanings specified in Section 305.
“shareholders
equity in the Company and its consolidated Subsidiaries” has the meaning
specified in Section 1004(c)(2).
“Special
Record Date” for the
payment of any Defaulted Interest means a date fixed by the Trustee for such
series 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 fixed date on
which the principal of such Security or such installment of principal or
interest is due and payable.
“Subsidiary” means
any corporation of which at least a majority of the outstanding stock having
voting power under ordinary circumstances to elect a majority of the board of
directors of said corporation shall at the time be owned by the Company or by
the Company and one or more Subsidiaries or by one or more Subsidiaries of the
Company.
“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 each such Trustee with respect to those series of Securities
with respect to which it is serving as Trustee.
“Trust
Indenture Act” means
the Trust Indenture Act of 1939 as in force at the date as of which this
instrument was executed, except as provided in Section 905.
“U.S.
Depositary” means a clearing agency registered under the Securities Exchange Act
of 1934, as amended, or any successor thereto, which 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 Person, “U.S.
Depositary” as used with respect to the Securities of any series shall mean the
U.S. Depositary with respect to the Securities of that series.
8
“U.S.
Government Obligations” means
direct obligations of the United States for the payment of which its full faith
and credit is pledged, or obligations of a person controlled or supervised by
and acting as an agency or instrumentality of the United States and the payment
of which is unconditionally guaranteed by the United States.
“Vice
President”, when
used with respect to the Company, the Guarantor or the Trustee for any series of
Securities, means any vice president, whether or not designated by a
number or a word or words added before or after the title “vice
president”.
Upon any
application or request by the Company or the Guarantor to the Trustee for any
series of Securities to take any action under any provision of this Indenture,
the Company or the Guarantor, as the case may be, shall furnish to such Trustee
an Officer’s Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a
statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(3) a
statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him or her 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.
9
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
may be so certified or covered by only one document, but one such person may
certify or give an opinion with respect to some matters and one or more other
such persons as to other matters, and any such person may certify or give an
opinion as to such matters in one or several documents.
Any
certificate or opinion of an officer of the Company or the Guarantor 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 or her certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or the Guarantor, as
the case may be, stating that the information with respect to such factual
matters is in the possession of the Company or the Guarantor, as the case may
be, 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 instructions under this
Indenture, they may, but need not, be consolidated and form one
instrument.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing,
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee for
the appropriate series of Securities and, where it is hereby expressly required,
to the Company or the Guarantor. 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 such Trustee, the Guarantor and the Company, if made in
the manner provided in this Section.
(b) The fact
and date of the execution by any person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him or her the execution thereof. Where such execution is by a
signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his or her
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 for such Securities deems
sufficient.
10
(c) The
ownership of Securities shall be proved by the Security Register.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee for such
Securities, the Guarantor or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION
105. Notices,
Etc., to Trustee, Guarantor and Company.
Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the
Trustee for a series of Securities by any Holder or by the Company or the
Guarantor shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with such Trustee at its Corporate Trust
Office,
(2) the
Company by such Trustee, or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and sent by
registered or certified mail, prepaid, to the Company addressed to it care of
the Guarantor at the address of the Guarantor specified in the first paragraph
of this instrument or at any other address previously furnished in writing to
such Trustee by the Company, or
(3) the
Guarantor by such Trustee, or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in writing and
sent by registered or certified mail, prepaid, to the Guarantor addressed to it
at the address of its office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to such Trustee by the
Guarantor.
Where
this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at his or her address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. 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. Waiver of notice by Holders shall be filed with the Trustee for
such Securities, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
11
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 for such
Securities shall constitute a sufficient notification for every purpose
hereunder.
If any
provision hereof limits, qualifies or conflicts with another provision hereof
which is required to be included in this Indenture by any of the provisions of
the Trust Indenture Act, such required provision shall control.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
All
covenants and agreements in this Indenture by each of the Company and the
Guarantor shall bind its successors and assigns, whether so expressed or
not.
In case
any provision in this Indenture or in the Securities or the Guarantee shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired
thereby.
Nothing
in this Indenture or in the Securities or the Guarantee, express or implied,
shall give to any person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION
112. GOVERNING
LAW.
THIS
INDENTURE, THE SECURITIES AND THE GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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 or
the Guarantee) payment of interest, if any, 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.
12
SECTION
114. Incorporators,
Shareholders, Officers and Directors of the Company
and the Guarantor Exempt from Individual Liability.
No
recourse for the payment of the principal of (and premium, if any) or interest,
if any, on any Security or any Guarantee, 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 or the Guarantor in this Indenture or in
any supplemental indenture, or in any Security or in any Guarantee, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, shareholder, officer or director, as such, past, present or
future, of the Company or the Guarantor or of any successor corporation, either
directly or through the Company or the Guarantor 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 waived and released as a condition
of and as a consideration for, the execution of this Indenture and the issue of
the Securities and the Guarantee.
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.
If, in
determining whether the Holders of the requisite principal amount of Securities
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, it becomes necessary to determine the principal amount of
Securities of any series denominated in any coin or currency other than that of
the United States of America, such principal amount shall be computed by
converting such coin or currency into coin or currency of the United States of
America based upon the rate of exchange in effect at the office of the Trustee
for such Securities in New York, New York at 10:00 A.M., New York City time, or
as close to such time as is reasonably practicable, on the date of initial
issuance of such series of Securities.
(a) Each of
the Company and, in the case of Guaranteed Securities, the Guarantor agrees, to
the fullest extent that it may effectively do so under applicable law, that (a)
if for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the principal of or interest on the Securities of any
series (the “Required Currency”) into a currency in which a judgment will be
rendered (the “Judgment Currency”), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee for such
Securities could purchase in The City of New York the Required Currency with the
Judgment Currency at 10:00 A.M. New York City time, or as close to such time as
is reasonably practicable, on the day on which final unappealable judgment is
entered, unless such day is not a New York Banking Day, then, to the extent
permitted by applicable law, the rate of exchange used shall be the rate at
which in accordance with normal banking procedures such Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency at
10:00 A.M. New York City time, or as close to such time as is reasonably
practicable, on the New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with this subsection (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, “New York Banking
Day” means any day except a Saturday, Sunday or a legal holiday in The City of
New York or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to close.
13
(b) To the
fullest extent permitted by applicable law, each of the Company and the
Guarantor hereby irrevocably submits to the jurisdiction of any Federal or state
court located in the Borough of Manhattan in The City of New York, New York in
any suit, action or proceeding based on or arising out of or relating to this
Indenture or any Securities or any Guarantee and irrevocably agrees that all
claims in respect of such suit or proceeding may be determined in any such
court. Each of the Company and the Guarantor irrevocably waives, to the fullest
extent permitted by law, any objection which it may have to the laying of the
venue of any such suit, action or proceeding brought in an inconvenient forum.
Each of the Company and the Guarantor agrees that final judgment in any such
suit, action or proceeding brought in such a court shall be conclusive and
binding upon the Company and/or the Guarantor, as applicable, and may be
enforced in the courts of Bermuda (or any other courts to the jurisdiction of
which the Company or the Guarantor, as applicable, is subject) by a suit upon
such judgment, provided that service of process is effected upon the Company
and/or the Guarantor, as applicable, in the manner specified herein or as
otherwise permitted by law. Each of the Company and the Guarantor hereby
irrevocably designates and appoints CT Corporation System, 000 Xxxxxx Xxxxxx, 00
Xxxxx, Xxx Xxxx, Xxx Xxxx (the “Process Agent”) as their authorized agent for
purposes of this Section 117(b), it being understood that the designation and
appointment of the Process Agent as such authorized agent shall become effective
immediately without any further action on the part of the Company and the
Guarantor. Each of the Company and the Guarantor further agrees that service of
process upon the Process Agent and written notice of said service to the Company
and/or the Guarantor, as applicable, mailed by prepaid registered first class
mail or delivered to the Process Agent at its principal office, shall be deemed
in every respect effective service of process upon the Company and/or the
Guarantor, as applicable, in any such suit or proceeding. Each of the Company
and the Guarantor further agrees to take any and all action, including the
execution and filing of any and all such documents and instruments as may be
necessary, to continue such designation and appointment of the Process Agent in
full force and effect so long as the Company and/or the Guarantor, as
applicable, has any outstanding obligations under this Indenture. To the extent
the Company and/or the Guarantor, as applicable, has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, executor or otherwise) with respect to itself or its property, each
of the Company and the Guarantor hereby irrevocably waives such immunity in
respect of its obligations under this Indenture to the extent permitted by
law.
14
ARTICLE
TWO
SECURITY FORMS
SECURITY FORMS
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 of the Company or in one or more indentures supplemental hereto, in
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officer executing such Securities, as evidenced by his or her execution of such
Securities.
The
certificate of authentication of the Trustee for any series of Securities shall
be in substantially the form set forth in this Article.
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 officer executing such Securities, as evidenced by their execution of such
Securities.
If the
Securities are Guaranteed Securities, the definitive Guarantees 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
Guarantees, as evidenced by their execution of such Guarantees.
XXXXXXXXX-XXXX
COMPANY LIMITED
[Title of
the Security]
No.
|
Cusip
No. _____ $____________ |
XXXXXXXXX-XXXX
COMPANY LIMITED, a company duly organized and existing under the laws of Bermuda
(herein called the “Company”, which term includes any successor corporation
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to _________________________, or registered assigns, the
principal sum of _____________ Dollars on _______________ [If the Security is to
bear interest prior to
Maturity, insert — , and to pay interest thereon from
__________________
__, ______ (the
“Original Issue Date”), or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, [semiannually
on ______________ and ______________]
[quarterly on _________, __________, ___________ and ____________] in each
year, commencing _______
__, _____, at
[If the Security is to bear interest at a fixed rate insert-the rate per annum
provided in the title hereof] [If the Security is to bear interest at a floating
rate, insert- [a rate of [Insert Floating Rate] per annum], until the principal
hereof is paid or made available for payment. [If
applicable insert — , and, subject to the terms of the Indenture, at
[the rate
per annum provided in the title hereof]
[such rate] on any
overdue principal and premium and (to the extent that the payment of such
interest shall be legally enforceable) on any overdue installment of interest].
15
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 [_________
or _________]
[________, _________, ________ or ___________] (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 to bear interest at a fixed rated prior to Maturity, insert —
Interest
shall be computed on the basis of a year of twelve 30-day months.]
[If the Security is to bear interest at a floating rate prior to Maturity,
insert — Interest shall be computed on the basis of the actual number of days in
the relevant interest period and a 360-day year.]
[If
the Security is to bear interest at a floating rate prior to Maturity, insert —
The [insert Floating Rate] will be reset [insert period time as set forth in a
Board Resolution of the Company] on each Interest Payment Date (each an
“Interest Reset Date”), beginning on ________ __, _____. The interest rate for
the period from and including the Original Issue Date to and excluding the first
Interest Payment Date shall be ______ per annum (the “Initial Interest Rate”).
The _________ Business Day preceding an Interest Reset Date will be the
“Interest Determination Date” for that Interest Reset Date. The interest rate in
effect on each day that is not an Interest Reset Date will be the interest rate
determined as of the Interest Determination Date pertaining to the immediately
preceding Interest Reset Date or the Initial Interest Rate, as the case may be.
The interest rate in effect on any day that is an Interest Reset Date will be
the interest rate determined as of the Interest Determination Date pertaining to
that Interest Reset Date.
Xxxxx
Fargo Bank, N.A. shall act as calculation agent (together with its successors in
that capacity, the “Calculation Agent”) in connection with the Securities. The
Calculation Agent shall serve as the calculation agent hereunder unless and
until a successor calculation agent is appointed by the Company. The following
definitions shall be used by the Calculation Agent in its determination of the
interest rate: [insert definitions for floating rate determination].
]
16
[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 [yield to maturity]% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of [yield to maturity]% per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such demand for payment to the date payment of such interest has
been made or duly provided for, and such interest shall also be payable on
demand.]
Payment
of the principal of (and premium, if any) and interest, if any, on this Security
will be made at the office or agency of the Company maintained for that purpose
in the Borough of Manhattan, The City of New York, in [coin or currency],
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.
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, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
Dated:
[Seal]
XXXXXXXXX-XXXX
COMPANY LIMITED
By_____________________________________
17
SECTION
203. Form
of Reverse of Security.
XXXXXXXXX-XXXX
COMPANY LIMITED
[Title of
the 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 May 24, 2005 (herein called the “Indenture”), among the
Company, Xxxxxxxxx-Xxxx Company (herein called the “Guarantor”, which term
includes any successor guarantor under the Indenture) and Xxxxx Fargo Bank,
N.A., as Trustee (herein called the “Trustee”, which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Guarantor, 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, limited in
aggregate principal amount to ___________.
[If
applicable, insert - The Securities of this series are subject to redemption
upon not less than 30 or more than 60 days’ notice by mail to the Holders of
such Securities at their addresses in the Security Register for such series, [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 [on or after _________________, 20__], 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 [on or before _____________, ____% and if redeemed] during the 12-month
period beginning ____________________:
Year |
Redemption
Price |
Year |
Redemption
Price |
and
thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable, insert - (whether
through operation of the sinking fund or otherwise)] with accrued and unpaid
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 or more than 60 days’ notice by mail to the Holders of
such Securities at their addresses in the Security Register for such series, (1)
on ________________ in any year commencing with the year ____ and ending with
the year _____ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after ________________], as a whole or in part, at
the election of the 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:
18
If
redeemed during the 12-month period beginning
______________________:
Year |
Redemption
Price
For
Redemption
Through
Operation
of
the
Sinking
Fund |
Redemption
Price For
Redemption
Otherwise
Than
Through Operation
of
the Sinking Fund |
and
thereafter at a Redemption Price equal to _______% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued and unpaid 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.]
[Notwithstanding
the foregoing, the Company may not prior to _____________ redeem any Securities
of this series as contemplated by [Clause (2) of] the preceding paragraph as a
part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than ______% per annum.]
[The
sinking fund for this series provides for the redemption on ________________ in
each year beginning with the year ________ and ending with the year _______ of
[not less than] _________ [(“mandatory sinking fund”) and, at the option of the
Company, not more than _______] aggregate principal amount of Securities of this
series. [Securities of this series acquired or redeemed by the Company otherwise
than through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made in
the order in which they become due.]
[In the
event of redemption of this Security in part only, a new Security or Securities
of this series for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.]
19
The
Indenture contains provisions for defeasance of (a) the entire indebtedness of
this Security and (b) certain restrictive covenants upon compliance by the
Company with certain conditions set forth therein.
[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 (the “Acceleration Amount”)
may be declared due and payable in the manner and with the effect provided in
the Indenture. In case of a declaration of acceleration on or before _______,
________ or on _______in any year, the Acceleration Amount per
principal amount at Stated Maturity
of the Securities shall be equal to the amount set forth in respect of such date
below:
Date
of declaration |
Acceleration
Amount
per
principal
amount
at
Stated Maturity |
|||
and in
case of a declaration of acceleration on any other date, the Acceleration Amount
shall be equal to the Acceleration Amount as of the next preceding date set
forth in the table above, plus accrued original issue discount (computed in
accordance with generally accepted accounting principles in effect on
__________) from such next preceding date to the date of declaration at the
yield to maturity. For the purpose of this computation the yield to maturity is
______%. Upon payment (i) of the Acceleration Amount so declared due and payable
and (ii) of interest on any overdue principal and overdue 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,
in the case of Guaranteed Securities, the Guarantor and the rights of the
Holders of the Securities of each series to be affected under the Indenture at
any time by the Company, the Guarantor, in the case of Guaranteed Securities,
and the Trustee with the consent of the Holders of a majority in principal
amount of the Securities at the time Outstanding of all series to be affected.
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities at the time Outstanding of all
series to be affected, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company and, in the case of Guaranteed
Securities, the Guarantor with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
20
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 premium, if any) and interest,
if any, 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 registrable 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 premium, if any) and
interest, if any, 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 or her attorney
duly authorized in writing, and thereupon one or more new Securities of this
series, 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 set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested 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
Guarantor,] the Trustee and any agent of the Company [, the Guarantor] 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 none
of the Company [,the Guarantor,] the Trustee or any such agent shall be affected
by notice to the contrary.
No
recourse for the payment of the principal of (and premium, if any) or interest,
if any, on this Security [or the Guarantee endorsed hereon], or for any claim
based hereon or thereon or otherwise in respect hereof or thereof, and no
recourse under or upon any obligation, covenant or agreement of the Company or
the Guarantor in the Indenture or in any indenture supplemental thereto, or in
any Security [or in the Guarantee], or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Company [or the Guarantor] or of any successor corporation, either directly or
through the Company [or the Guarantor] 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, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
THIS
SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
21
All terms
used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
This is
one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
Xxxxx
Fargo Bank, N.A., as Trustee
By____________________________________
Authorized
Signature
If any
Security of a series is issuable in global form, such Global Security may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and may also provide that the aggregate
amount of Outstanding Securities represented thereby may from time to time be
reduced to reflect exchanges. Any endorsement of a Global Security to reflect
the amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee of such series of Securities
and in such manner as shall be specified in such Global Security. Any
instructions by the Company with respect to a Global Security, after its initial
issuance, shall be in writing but need not comply with Section 102.
None of
the Company, the Guarantor, the Trustee of such series of Securities, any Paying
Agent or the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership
interests.
The
Guarantor by its execution of this Indenture hereby agrees with each Holder of a
Guaranteed Security of each series authenticated and delivered by the Trustee of
such series of Securities and with such Trustee on behalf of each such Holder,
to be unconditionally bound by the terms and provisions of the Guarantee set
forth below and authorizes such Trustee to confirm such Guarantees to the Holder
of each such Guaranteed Security by its execution and delivery of each such
Guaranteed Security, with such Guarantees endorsed thereon, authenticated and
delivered by such Trustee.
Guarantees
to be endorsed on the Guaranteed Securities shall, subject to Section 201, be in
substantially the form set forth below:
GUARANTEE
OF
XXXXXXXXX-XXXX
COMPANY
22
For value
received, Xxxxxxxxx-Xxxx Company, a corporation incorporated under the laws of
the State of New Jersey, having an office at 000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxxx,
Xxx Xxxxxx 00000 (herein called the “Guarantor”, which term includes any
successor Person under the Indenture referred to in the Guaranteed Security upon
which this Guarantee is endorsed), hereby irrevocably and unconditionally
guarantees to the Holder of the Guaranteed Security upon which this Guarantee is
endorsed and to the Trustee on behalf of each such Holder the due and punctual
payment of the principal of, premium, if any, and interest on such Guaranteed
Security and the due and punctual payment of the sinking fund or analogous
payments referred to therein, if any, when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of acceleration, call
for redemption or otherwise, according to the terms thereof and of the Indenture
referred to therein, all in accordance with and subject to the terms and
limitations of the Guaranteed Security on which this Guarantee is endorsed and
Article Thirteen of the Indenture. In case of the failure of Xxxxxxxxx-Xxxx
Company Limited, a company duly organized under the laws of Bermuda (herein
called the “Company”, which term includes any successor Person under such
Indenture), promptly to make any such payment of principal, premium, if any, or
interest or any such sinking fund or analogous payment, the Guarantor hereby
agrees to cause any such payment to be made promptly when and as the same shall
become due and payable, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise, and as if such payment were made
by the Company, subject to the terms and limitations of Article Thirteen of the
Indenture.
This
Guarantee shall not be valid or obligatory for any purpose until the certificate
of authentication of such Guaranteed Security shall have been manually executed
by or on behalf of the Trustee under such Indenture.
All terms
used in this Guarantee which are defined in such Indenture shall have the
meanings assigned to them in such Indenture.
THIS
GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
Executed
and dated the date on this ___________ day of ________, 20__.
[Seal] XXXXXXXXX-XXXX
COMPANY
23
By _________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
Reference
is made to Article Thirteen for further provisions with respect to the
Guarantees.
ARTICLE
THREE
THE SECURITIES
THE SECURITIES
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. The terms of each series of
Securities shall be established either by an Officer’s Certificate or by a
supplemental indenture. If the terms of a series of Securities are to be
established pursuant to an Officer’s Certificate, one or more duly appointed
officers of the Company and, if the Securities are Guaranteed Securities, one or
more duly appointed officers of the Guarantor, shall execute and deliver to the
Trustee such Officer’s Certificate, acting pursuant to authority granted to such
officers by the board of directors of the Company and, if the Securities are
Guaranteed Securities, by the board of directors of the Guarantor. If the terms
of a series of Securities are to be established pursuant to a supplemental
indenture, such supplemental indenture shall be entered into in accordance with
the provisions of Section 901 hereof. Such Officer’s Certificate or supplemental
indenture shall establish:
(1) the title
of the Securities of that series (which shall distinguish the Securities of that
series from all other series of Securities);
(2) any limit
upon the aggregate principal amount of the Securities of that 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 that series pursuant to Sections 304,
305, 306, 906, or 1107);
(3) the date
or dates on which the principal of the Securities of that series is
payable;
(4) the rate
or rates (or the manner of calculation thereof) at which the Securities of that
series shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall be payable
and the Regular Record Date for the interest payable on any Interest Payment
Date;
24
(5) the place
or places where the principal of (and premium, if any) and interest, if any, on
Securities of that series shall be payable and where such Securities may be
registered or transferred;
(6) the
period or periods within which, the price or prices at which and the terms and
conditions upon which Securities of that series may be redeemed, in whole or in
part, at the option of the Company;
(7) the
obligation, if any, of the Company to redeem or purchase Securities of that
series pursuant to any sinking fund or analogous provisions or at the option of
a Holder thereof, and the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of that series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(8) if other
than denominations of $1,000 and any integral multiple thereof, the
denominations in which Securities of that series shall be issuable;
(9) if other
than the principal amount thereof, the portion of the principal amount of
Securities of that series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 502;
(10) if other
than such coin or currency of the United States of America, the currency or
currency unit in which payment of the principal of (or premium, if any) or
interest, if any, on the Securities of that series shall be payable or in which
the Securities of that series shall be denominated and the particular provisions
applicable thereto;
(11) if the
principal of (and premium, if any) or interest, if any, on the Securities of
that series are to be payable, at the election of the Company, the Guarantor or
a Holder thereof, in a coin or currency other than that in which the Securities
are stated to be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(12) if the
amount of payments of principal of (and premium, if any) or interest, if any, on
the Securities of that series may be determined with reference to an index based
on a coin or currency other than that in which the Securities are stated to be
payable, the manner in which such amounts shall be determined;
(13) any
provisions permitted by this Indenture relating to Events of Default or
covenants of the Company with respect to such series of Securities (including
deletions therefrom, modifications thereof or additions thereto, whether or not
consistent with the Events of Default or covenants set forth
herein);
25
(14) if the
Securities of that series shall be issued in whole or in part in the form of one
or more Global Securities and, in such case, the U.S. Depositary for such Global
Security or Securities; the manner in which and the circumstances under which
Global Securities representing Securities of that series may be exchanged for
Securities in definitive form, if other than, or in addition to, the manner and
circumstances specified in Section 305;
(15) whether
the Securities of that series will be convertible into Common Shares of the
Company and/or exchangeable for other Securities, and if so, the terms and
conditions upon which such Securities will be so convertible or exchangeable,
and any deletions from or modifications or additions to this Indenture to permit
or to facilitate the issuance of such convertible or exchangeable Securities or
the administration thereof;
(16) whether
or not the Securities are Guaranteed Securities and the applicability of any
other guarantees;
(17) if a
Person other than Xxxxx Fargo Bank, N.A. is to act as Trustee for the Securities
of that series, the name and location of the Corporate Trust Office of such
Trustee; and
(18) any other
terms of that series (which terms shall not be inconsistent with the provisions
of this Indenture).
All
Securities of any particular series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
Board Resolution of the Company and, in the case of Guaranteed Securities, the
Guarantor, and set forth in such Officer’s Certificate or in any such indenture
supplemental hereto.
If any of
the terms of the series, including the form of Security of such series, are
established by action taken pursuant to a Board Resolution of the Company, and,
in the case of Guaranteed Securities, a Board Resolution of the Guarantor, a
copy of an appropriate record of such action shall be certified by the Secretary
or an Assistant Secretary of the Company and, in the case of Guaranteed
Securities, the Secretary or Assistant Secretary of the Guarantor, and delivered
to the Trustee for the Securities of such series at or prior to the delivery of
the Company Order contemplated by Section 303 for the authentication and
delivery of such series of Securities.
The
Securities of each series shall be issuable in 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 $1,000 and
any integral multiple thereof.
26
The
Securities shall be executed, manually or by facsimile, on behalf of the Company
by its Chairman of the Board, a Deputy Chairman of the Board, its President, one
of its Vice Presidents or its Treasurer under its corporate seal reproduced
thereon, by facsimile or otherwise, and which need not be attested.
The
Guarantees endorsed on any Guaranteed Securities shall be executed, manually or
by facsimile, on behalf of the Guarantor by its Chairman of the Board, a Vice
Chairman of the Board, its President or one of its Vice Presidents and by its
Treasurer or one of its Assistant Treasurers or its Secretary or one of its
Assistant Secretaries, under its corporate seal reproduced thereon, by facsimile
or otherwise, and which need not be attested.
Securities
or Guarantees bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Company or the Guarantor, as the case may
be, shall bind the Company or the Guarantor, as the case may be, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Securities or Guarantees or did not hold
such offices at the date of such Securities or Guarantees.
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 the Securities of such series for authentication, together with a
Company Order for the authentication and delivery of such Securities, and such
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions of the Company and,
in the case of Guaranteed Securities, the Guarantor, as permitted by Sections
201 and 301, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, such
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel of the Company and , if
the Securities are Guaranteed Securities, the Guarantor, stating,
(a) if the
form of such Securities has been established by or pursuant to Board Resolution
of the Company as permitted by Section 201, that such form has been established
in conformity with the provisions of this Indenture;
(b) if the
terms of such Securities have been established by or pursuant to Board
Resolution of the Company and, if the Securities are Guaranteed Securities, the
Guarantor, as permitted by Section 301, that such terms have been established in
conformity with the provisions of this Indenture;
(c) that such
Securities and, in the case of Guaranteed Securities, the Guarantees endorsed
thereon, when authenticated and delivered by such Trustee and issued by the
Company and, in the case of Guaranteed Securities, the Guarantor in the manner
and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company and the
Guarantor, respectively, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors’ rights and to general
equity principles;
and
27
(d) that all
laws and requirements in respect of the execution and delivery by the Company of
such Securities and, in the case of Guaranteed Securities, by the Guarantor of
such Guarantees have been complied with.
If such
form or terms have been so established, the Trustee for the Securities of such
series shall not be required to authenticate such Securities if such Trustee,
being advised by counsel, determines that the issue of such Securities pursuant
to this Indenture will affect such Trustee’s own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to such Trustee.
Notwithstanding
the foregoing, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officer’s Certificate otherwise
required pursuant to the foregoing or the Company Order and Opinion of Counsel
otherwise required pursuant to the foregoing prior to or at the time of issuance
of each Security, but such documents shall be delivered prior to or at the time
of issuance of the first Security of such series.
Each
Security shall be dated the date of its authentication.
No
Security or Guarantee endorsed thereon 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 for the Securities of such series by manual
signature, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and, together with the Guarantee, if any, endorsed thereon,
is entitled to the benefits of this Indenture.
Pending
the preparation of definitive Securities of any particular series, the Company
may execute, and upon Company Order the Trustee for the Securities of such
series 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, in the case of Guaranteed Securities, having endorsed
thereon a Guarantee executed by the Guarantor, of the tenor of the definitive
Guarantee, and with such appropriate insertions, omissions, substitutions and
other variations as the officer executing such Securities may determine, as
evidenced by his or her execution of such Securities.
If
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee for the Securities of such
series shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations
and, in the case of Guaranteed Securities, having endorsed thereon the Guarantee
by the Guarantor. 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.
28
The
Company shall cause to be kept at the Corporate Trust Office of the Trustee for
the Securities of each series a register (the register maintained at 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 of transfers of Securities. The
Trustee for the Securities of each series is hereby appointed “Security
Registrar” for the purpose of registering Securities and transfers of Securities
as herein provided.
Upon
surrender for registration of transfer of any Security of any series at the
office or agency in a Place of Payment for that series, the Company shall
execute, and the Trustee for the Securities of each series shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Securities of the same series, of any authorized denominations and of a
like aggregate principal amount, and, in the case of Guaranteed Securities,
having endorsed thereon a Guarantee executed by the Guarantor.
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 a like
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 for the Securities of such series
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive, and, in the case of Guaranteed Securities,
having endorsed thereon a Guarantee executed by the Guarantor.
All
Securities and, in the case of Guaranteed Securities, Guarantees endorsed
thereon issued upon any registration of transfer or exchange of Securities and,
in the case of Guaranteed Securities, Guarantees endorsed thereon, shall be the
valid obligations of the Company and, in the case of Guaranteed Securities, the
Guarantor, respectively evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities and, in the case of Guaranteed
Securities, Guarantees endorsed thereon surrendered upon such registration of
transfer or exchange.
Every
Security presented or surrendered for registration of transfer or for exchange
shall (if so required by the Company or the Trustee for the Securities of such
series) 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 or her 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 Sections 304, 906 or 1107 not involving any transfer.
29
The
Company shall not be required (i) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Securities of
that series selected for redemption under Section 1103 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.
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 (along with, in the case of
Guaranteed Securities, a Guarantee executed by the Guarantor endorsed thereon)
and the Trustee for the Securities of such series shall, in accordance with
Section 303 and the Company Order with respect to such series, authenticate and
deliver 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 Securities or the nominee of such
depositary, and (iii) shall bear a legend substantially to the following effect:
“This Security (and in the case of Guaranteed Securities, the related Guarantee)
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary, unless and until
this Security is exchanged in whole or in part for Securities in definitive
form” and such other legend as may be required by the U.S.
Depositary.
Notwithstanding
any other provision of this Section, unless and until it is exchanged in whole
or in part for Securities in definitive form, a Global Security (and, in the
case of Guaranteed Securities, the related Guarantee) 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 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 for the Securities of such series, upon receipt of
a Company Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver, Securities of such series in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities and in the case of Guaranteed Securities,
having endorsed thereon a Guarantee executed by the Guarantor.
30
The
Company may at any time and in its sole discretion determine that the Securities
of any series issued in the form of one or more Global Securities shall no
longer be represented by such Global Security or Securities. In such event, the
Company will execute, and the Trustee for the Securities of such series, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
Series in definitive form and in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities and, in the case of
Guaranteed Securities, having endorsed thereon a Guarantee executed by the
Guarantor.
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 for the Securities of such series, upon receipt of a
Company Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities and, in the case of Guaranteed
Securities, having endorsed thereon a Guarantee executed by the
Guarantor.
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 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 for the Securities of such series shall authenticate and deliver,
without charge:
(i) to each
Person specified by the U.S. Depositary a new registered Security or Securities
of the same series, of an 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, in the case of Guaranteed
Securities, having endorsed thereon a Guarantee executed by the Guarantor;
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 and, in
the case of Guaranteed Securities, having endorsed thereon a Guarantee executed
by the Guarantor.
Upon the
exchange of a Global Security in whole for Securities in definitive form, such
Global Security shall be canceled by the Trustee for the Securities of such
series. Securities issued in exchange for a Global Security 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 for the Securities of such
series. Such Trustee shall deliver such Securities to the Persons in whose names
such Securities are so registered.
31
If any
mutilated Security is surrendered to the Trustee for the series of such
Securities, the Company shall execute and such Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding,
and, in the case of Guaranteed Securities, having endorsed thereon a Guarantee
executed by the Guarantor.
If there
shall be delivered to the Company and the Trustee for the series of such
Securities (i) evidence to their satisfaction of the destruction, loss or theft
of any Security and (ii) such security or indemnity as may be required by them
to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or such Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request such Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding, and, in the case of Guaranteed Securities, having endorsed thereon
a Guarantee executed by the Guarantor.
In case
any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a
new Security, pay such Security.
Upon the
issuance of any new Security under this Section, 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 for the series of such Securities) connected
therewith.
Every new
Security of any series and, in the case of Guaranteed Securities, the Guarantee
endorsed thereon, issued pursuant to this Section in lieu of any destroyed, lost
or stolen Security shall constitute an original additional contractual
obligation of the Company and, in the case of Guaranteed Securities, the
Guarantor, respectively, 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 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.
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.
32
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 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 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 for the Securities of such series
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 such Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements reasonably satisfactory to such 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 such 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 such Trustee of the notice of the proposed
payment. Such Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of Securities
of such series at his or her address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the persons in whose
names the Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The
Company may make payment of any Defaulted Interest on the Securities of any
series in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Company to
the Trustee for the Securities of such series of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by such
Trustee.
Subject
to the foregoing provisions of this Section, 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.
33
Prior to
due presentment of a Security for registration of transfer, the Company, the
Guarantor (in the case of Guaranteed Securities), the Trustee for such Security
and any agent of the Company, the Guarantor (in the case of Guaranteed
Securities) or such Trustee may treat the person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 307) interest, if
any, on such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and none of the Company, the Guarantor, such Trustee or any
agent of the Company, the Guarantor or such Trustee shall be affected by notice
to the contrary.
Notwithstanding
the foregoing, with respect to any Global Security, nothing herein shall prevent
the Company, the Guarantor (in the case of Guaranteed Securities), the Trustee
for such Security, or any agent of any of the foregoing, from giving effect to
any written certification, proxy or other authorization furnished by any
depositary, as a Holder, with respect to such Global Security or impair, as
between such depositary and owners of beneficial interests in such Global
Security, the operation of customary practices governing the exercise of the
rights of such depositary (or its nominee) as Holder of such Global Security.
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 for such Securities, be delivered to such
Trustee and shall be promptly cancelled by it. The Company or the Guarantor (in
the case of Guaranteed Securities) may at any time deliver to such Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company or the Guarantor (in the case of Guaranteed Securities) may
have acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by such Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by such Trustee shall be disposed of in accordance with such Trustee’s customary
practices.
Except as
otherwise specified as contemplated by Section 301 for Securities of any
particular series, interest, if any, on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
The
Company in issuing the Securities may use “CUSIP” numbers (if then generally in
use), and, if so, the Trustee for such Securities shall use “CUSIP” numbers in
notices of redemption as a convenience to Holders of such Securities;
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 a 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
such Trustee of any change in the “CUSIP” numbers.
34
This
Indenture shall upon Company Request cease to be of further effect (except as to
any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee for the Securities of each
series, 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 or, in the case of Guaranteed Securities, the Guarantor and thereafter
repaid to the Company or, in the case of Guaranteed Securities, the Guarantor or
discharged from such trust, as provided in Section 1003) have been delivered to
the Trustee for the Securities of such series for cancellation; or
(B) all such
Securities not theretofore delivered to the Trustee for the Securities of such
series for cancellation:
(i) have
become due and payable; or
(ii) will
become due and payable at their Stated Maturity within one year; or
(iii) are to be
called for redemption within one year under arrangements reasonably satisfactory
to such Trustee for the giving of notice of redemption by such Trustee in the
name, and at the expense, of the Company or, in the case of Guaranteed
Securities, the Guarantor; or
(iv) are
deemed paid and discharged pursuant to Section 403, as applicable,
and the
Company or, in the case of Guaranteed Securities, the Guarantor, in the case of
(i), (ii) or (iii) above, has deposited or caused to be deposited with the
Trustee for the Securities of such series as trust funds in trust for the
purpose an amount of (a) money, or (b) in the case of (ii) or (iii) above and
(except as provided in an indenture supplemental hereto) if no Securities of any
series Outstanding are subject to repurchase at the option of Holders, (I) U.S.
Government Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide not later than one
day before the Stated Maturity or Redemption Date, as the case may be, money in
an amount, or (II) a combination of money or U.S. Government Obligations as
provided in (I) above, in each case sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to such Trustee for
cancellation, for principal (and premium, if any) and interest, if any, to the
date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may
be;
35
(2) the
Company or, in the case of Guaranteed Securities, the Guarantor has paid or
caused to be paid all other sums payable hereunder by the Company;
and
(3) the
Company or, in the case of Guaranteed Securities, the Guarantor has delivered to
the Trustee for the Securities of such series an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee of the Securities of each series under Section 607, the
obligations of such Trustee to any Authenticating Agent under Section 614 and,
if money or U.S. Government Obligations shall have been deposited with the
Trustee of the Securities of any series pursuant to subclause (B) of Clause (1)
of this Section or if money or U.S. Government Obligations shall have been
deposited with or received by the Trustee of the Securities of any series
pursuant to Section 403, the obligations of such Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
(a) Subject
to the provisions of the last paragraph of Section 1003, all money or U.S.
Government Obligations deposited with the Trustee of a particular series of
Securities pursuant to Section 401, 403 or 1006 and all money received by the
Trustee of a particular series of Securities in respect of U.S. Government
Obligations deposited with the Trustee of that series of Securities pursuant to
Section 401, 403 or 1006, 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, or
in the case of Guaranteed Securities, the Guarantor acting as its own Paying
Agent) as such Trustee may determine, to the persons entitled thereto, of the
principal (and premium, if any) and interest, if any, for whose payment such
money has been deposited with or received by such Trustee or to make mandatory
sinking fund payments or analogous payments as contemplated by Section 401, 403
or 1006.
36
(b) The
Company and, in the case of Guaranteed Securities, the Guarantor shall pay and
shall indemnify the Trustee of each series of Securities against any tax, fee,
or other charge imposed on or assessed against U.S. Government Obligations
deposited pursuant to Section 401, 403 or 1006 or the interest and principal
received in respect of such obligations other than any payable by or on behalf
of Holders.
(c) The
Trustee of each series of Securities shall deliver or pay to the Company or, in
the case of Guaranteed Securities, the Guarantor from time to time upon Company
Request any U.S. Government Obligations or money held by it as provided in
Section 401, 403 or 1006 which, in the opinion of a nationally recognized firm
of independent certified public accountants expressed in a written certification
thereof delivered to such Trustee, are then in excess of the amount thereof
which then would have been required to be deposited for the purpose for which
such U.S. Government Obligations or money was deposited or received. This
provision shall not authorize the sale by such Trustee of any U.S. Government
Obligations held under this Indenture.
The
Company and, in the case of Guaranteed Securities, the Guarantor shall be deemed
to have paid and discharged the entire indebtedness on all the Outstanding
Securities of any series and, in the case of Guaranteed Securities, the
Guarantees, respectively, on the 91st day
after the date of the deposit referred to in subparagraph (a) hereof, and the
provisions of this Indenture, as it relates to such Outstanding Securities of
such series and, in the case of Guaranteed Securities, the Guarantees,
respectively, shall no longer be in effect (and the Trustee for the Securities
of such series, at the expense of the Company or, in the case of Guaranteed
Securities, the Guarantor, shall at Company Request execute proper instruments
acknowledging the same), except as to:
(1) the
rights of Holders of Securities of such series to receive, from the trust funds
described in subparagraph (a) hereof, (i) payment of the principal of (and
premium, if any) and each installment of principal of (and premium, if any) or
interest, if any, on the Outstanding Securities of such series on the Stated
Maturity of such principal or installment of principal or interest or to and
including the Redemption Date irrevocably designated by the Company pursuant to
subparagraph (e) hereof and (ii) the benefit of any mandatory sinking fund
payments applicable to the Securities of such series on the day on which such
payments are due and payable in accordance with the terms of this Indenture and
the Securities of such series;
(2) the
Company’s obligations with respect to such Securities of such series under
Sections 305, 306, and 1002 and, if the Company shall have irrevocably
designated a Redemption Date pursuant to subparagraph (e) hereof, Sections 1101,
1104 and 1106 as they apply to such Redemption Date;
37
(3) the
Company’s obligations with respect to the Trustee for Securities of such series
under Section 607; and
(4) the
rights, powers, trust and immunities of such Trustee hereunder and the duties of
such Trustee under Section 402 and, if the Company shall have irrevocably
designated a Redemption Date pursuant to subparagraph (e) hereof, Article Eleven
and the duty of such Trustee to authenticate Securities of such series on
registration of transfer or exchange;
provided that,
the following conditions shall have been satisfied:
(a) the
Company or the Guarantor has deposited or caused to be irrevocably deposited
(except as provided in Section 402(c) and the last paragraph of Section 1003)
with such Trustee as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Securities of such
series, (i) money in an amount, or (ii) (except as provided in a supplemental
indenture with respect to such series) if Securities of such series are not
subject to repurchase at the option of Holders, (A) U.S. Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide not later than one day before the due
date of any payment referred to in clause (x) or (y) of this subparagraph (a)
money in an amount or (B) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent certified public accountants expressed
in a written certification thereof delivered to such Trustee, to pay and
discharge (x) the principal of (and premium, if any) and each installment of
principal (and premium, if any) and interest, if any, on the Outstanding
Securities of such series on the Stated Maturity of such principal or
installment of principal or interest or to and including the Redemption Date
irrevocably designated by the Company pursuant to subparagraph (e) hereof and
(y) any mandatory sinking fund payments applicable to the Securities of such
series on the day on which such payments are due and payable in accordance with
the terms of the Indenture and of the Securities of such series;
(b) the
Company or (in the case of Guaranteed Securities) the Guarantor has delivered to
such Trustee an Opinion of Counsel to the effect that such provision would not
cause any Outstanding Securities of such series then listed on any national
securities exchange to be delisted as a result thereof;
(c) no Event
of Default or event which with notice or lapse of time would become an Event of
Default (including by reason of such deposit) with respect to the Securities of
such series shall have occurred and be continuing on the date of such deposit or
during the period ending on the 91st day
after such date;
(d) the
Company or (in the case of Guaranteed Securities) the Guarantor has delivered to
such Trustee an Opinion of Counsel in the U.S. to the effect that the Company or
(in the case of Guaranteed Securities) the Guarantor has received from, or there
has been published by the Internal Revenue Service a ruling to the effect that
Holders of the Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of such deposit, defeasance and
discharge;
and
38
(e) if the
Company or the Guarantor has deposited or caused to be deposited money or U.S.
Government Obligations to pay or discharge the principal of (and premium, if
any) and interest, if any, on the Outstanding Securities of a series to and
including a Redemption Date on which all of the Outstanding Securities of such
series are to be redeemed, such Redemption Date shall be irrevocably designated
by a Board Resolution of the Company delivered to such Trustee on or prior to
the date of deposit of such money or U.S. Government Obligations, and such Board
Resolution shall be accompanied by an irrevocable Company Request that such
Trustee give notice of such redemption in the name and at the expense of the
Company or (in the case of Guaranteed Securities) the Guarantor and less than 30
nor more than 60 days prior to such Redemption Date in accordance with Section
1104.
If the
Trustee of the Securities of any series or any Paying Agent is unable to apply
any money in accordance with Section 402 by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations of the Company and the
Guarantor (in the case of Guaranteed Securities) under this Indenture and such
Securities and any related coupons and Guarantees shall be revived and
reinstated as though no deposit had occurred pursuant to Section 403 or Section
1006, as the case may be, until such time as such Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 402; provided,
however, that if
the Company makes any payment of principal of (or premium, if any) or interest,
if any, on any such Security or any related coupon following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders
of such Securities and any related coupons to receive such payment from the
money held by such Trustee or Paying Agent.
ARTICLE
FIVE
REMEDIES
REMEDIES
“Event of
Default”, wherever used herein with respect to Securities of any series, means
any one of the following events (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(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 30 days;
or
(2) default
in the payment of the principal of (or premium, if any, on) any Security of that
series at its Maturity; or
(3) default
in the payment of any sinking fund installment, when and as due by the terms of
a Security of that series, and continuance of such default for a period of 30
days; or
39
(4) default
in the performance, or breach, of any covenant or warranty of the Company or, in
the case of Guaranteed Securities, the Guarantor in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has 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 and, in
the case of Guaranteed Securities, the Guarantor by the Trustee for the
Securities of such series or to the Company, the Guarantor (in the case of
Guaranteed Securities) and such Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder; or
(5) the entry
by a court having jurisdiction in the premises of (A) a decree or order for
relief in respect of the Company or, in the case of Guaranteed Securities, the
Guarantor in an involuntary case or proceeding under any applicable Federal or
State or Bermuda bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company or, in the case of Guaranteed
Securities, the Guarantor a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company or, in the case of Guaranteed Securities, the
Guarantor under any applicable Federal or State or Bermuda law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or, in the case of Guaranteed Securities, the
Guarantor or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a period
of 90 consecutive days; or
(6) the
commencement by the Company or, in the case of Guaranteed Securities, the
Guarantor of a voluntary case or proceeding under any applicable Federal or
State or Bermuda 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 the Company or, in the case of Guaranteed Securities, the
Guarantor to the entry of a decree or order for relief in respect of the Company
or, in the case of Guaranteed Securities, the Guarantor, respectively, in an
involuntary case or proceeding under any applicable Federal or State or Bermuda
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against the
Company or, in the case of Guaranteed Securities, the Guarantor, or the filing
by the Company or, in the case of Guaranteed Securities, the Guarantor of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State or Bermuda law, or the consent by the Company or, in
the case of Guaranteed Securities, the Guarantor to the filing of such petition
or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the Company
or, in the case of Guaranteed Securities, the Guarantor or of any substantial
part of its property, or the making by the Company or, in the case of Guaranteed
Securities, the Guarantor of an assignment for the benefit of creditors, or the
admission by the Company or, in the case of Guaranteed Securities, the Guarantor
in writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company or, in the case of Guaranteed
Securities, the Guarantor in furtherance of any such action; or
40
(7) any other
Event of Default provided in the supplemental indenture or provided in or
pursuant to a Board Resolution or Officer’s Certificate of the Company and, in
the case of Guaranteed Securities, the Guarantor, under which such series of
Securities is issued or in the form of Security for such series.
If an
Event of Default (other than an Event of Default specified in Section 501(5) or
501(6)) with respect to Securities of any series at the time Outstanding occurs
and is continuing, then in every such case the Trustee for the Securities of
such series or the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of that series may declare the principal amount (or,
if the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
of all of the Securities of that series to be due and payable immediately, by a
notice in writing to the Company (and to such Trustee if given by Holders), and
upon any such declaration such principal amount (or specified amount) shall
become immediately due and payable. If an Event of Default specified in Section
501(5) or 501(6) with respect to Securities of any series at the time
Outstanding occurs, the principal amount of all the Securities of that series
(or, if any Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified by
the terms thereof) shall automatically, and without any declaration or other
action on the part of such Trustee or any Holder, become immediately due and
payable.
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 for the Securities of such series as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company, the Guarantor (in the case of Guaranteed Securities) and such Trustee,
may rescind and annul such declaration and its consequences if:
(1) the
Company or, in the case of Guaranteed Securities, the Guarantor has paid or
deposited with such Trustee a sum sufficient to pay,
(A) all
overdue interest, if any, on all Securities of that series,
(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,
41
(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 such Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of such Trustee, its agents and counsel;
and
(2) all
Events of Default with respect to Securities of that series, other than the
non-payment of the principal of and accrued interest on Securities of that
series which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such
rescission shall affect any subsequent default or impair any right consequent
thereon.
For all
purposes under this Indenture, if a portion of the principal of any Original
Issue Discount Securities shall have been accelerated and declared due and
payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
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 30 days, or
(2) default
is made in the payment of the principal of (or premium, if any, on) any Security
at the Maturity thereof,
the
Company will, upon demand of the Trustee for the Securities of such series, 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 premium, if any) and
interest, if any, and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal (and premium, if any) 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 such Trustee, its agents
and counsel.
If the
Company fails to pay such amounts forthwith upon such demand, such Trustee, in
its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same against the
Company, the Guarantor (in the case of Guaranteed Securities) 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, the
Guarantor (in the case of Guaranteed Securities) or any other obligor upon such
Securities, wherever situated.
42
If an
Event of Default with respect to Securities of any series occurs and is
continuing, the Trustee for the Securities of such series 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 such
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.
In any
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company, the Guarantor (in the case of Guaranteed
Securities) or any other obligor upon the Securities or the property of the
Company, the Guarantor (in the case of Guaranteed Securities) or of such other
obligor or their creditors, the Trustee for the Securities of such series
(irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether such Trustee shall have made any demand on the Company or the Guarantor
(in the case of Guaranteed Securities) for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(i) to file
and prove a claim for the whole amount of principal (and premium, if any) and
interest owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of such Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and counsel) and of the
Holders of such Securities allowed in such judicial proceeding; and
(ii) to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same;
and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder of such Securities to make such payments to such Trustee and, in the
event that such Trustee shall consent to the making of such payments directly to
such Holders, to pay to such Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of such Trustee, its agents
and counsel, and any other amounts due such Trustee under Section
607.
Nothing
herein contained shall be deemed to authorize the Trustee for the Securities of
any series 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, the Guarantees (in the case of Guaranteed Securities) or the rights
of any Holder thereof or to authorize such Trustee to vote in respect of the
claim of any Holder in any such proceeding.
43
All
rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee for any series of Securities without the
possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by such 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 such 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.
Any money
collected by the Trustee for any series of Securities pursuant to this Article
shall be applied in the following order, at the date or dates fixed by such
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Securities 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 such Trustee under Section 607;
SECOND:
In case the principal of the Securities of such series in respect of which
moneys have been collected shall not have become and be then due and payable, to
the payment of interest, if any, on the Securities of such series in default in
the order of the maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by such Trustee and to the
extent permitted by law) upon the overdue installments of interest at the rate
prescribed therefor in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In
case the principal of the Securities of such series in respect of which moneys
have been collected shall have become and shall be then due and payable, to the
payment of the whole amount then owing and unpaid upon all the Securities of
such series for principal and interest, if any, with interest upon the overdue
principal, and (to the extent that such interest has been collected by such
Trustee and to the extent permitted by law) upon overdue installments of
interest at the rate prescribed therefor in the Securities of such series; and
in case such moneys shall be insufficient to pay in full the whole amount so due
and unpaid upon the Securities of such series, then to the payment of such
principal and interest, without preference or priority of principal over
interest, or of interest over principal, or of any installment of interest over
any other installment of interest, or of any Security of such series over any
other Security of such series, ratably to the aggregate of such principal and
accrued and unpaid interest; and
FOURTH:
To the payment of the remainder, if any, to the Company or any other person
lawfully entitled thereto.
44
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 for the Securities of
such series of a continuing Event of Default with respect to the Securities of
that series;
(2) the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series shall have made written request to such 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 such Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such
request;
(4) such
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 such Trustee
during such 60-day period by the Holders of a majority in principal amount of
the Outstanding Securities of that series,
it being
understood and intended that no one or more of such Holders shall have any right
in any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all such
Holders.
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 premium, if any) and (subject to Section 307) interest, if any, on such
Security on the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
If the
Trustee for the Securities of any series 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 such Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the
Guarantor (in the case of Guaranteed Securities), such Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of such Trustee and the Holders shall
continue as though no such proceeding had been instituted.
45
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 for the
Securities of any series or to any Holder 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.
No delay
or omission of the Trustee for the Securities of any series 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 such Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by such Trustee or by the
Holders, as the case may be.
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 for the Securities of
such series, or exercising any trust or power conferred on such 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;
and
(2) such
Trustee may take any other action deemed proper by such Trustee which is not
inconsistent with such direction.
The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all of the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the
payment of the principal of (or premium, if any) or interest, if any, on any
Security of such series, or
46
(2) in
respect of a covenant or provision hereof which under Article Nine cannot be
modified or amended without the consent of the Holder of each Outstanding
Security of such series affected.
Upon any
such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
All
parties to this Indenture agree, and each Holder of any Security by his or her
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for the Securities of any
series for any action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee for the Securities of any series, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than 10% in principal amount
of the Outstanding Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium, if
any) or interest, if any, on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
Each of
the Company and, in the case of Guaranteed Securities, the Guarantor 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 each of the Company and, in the case of Guaranteed Securities,
the Guarantor (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 for the
Securities of any series, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE
SIX
THE TRUSTEE
THE TRUSTEE
(a) Except
during the continuance of an Event of Default with respect to the Securities of
any series for which the Trustee is serving as such:
(1) such
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against such Trustee;
and
47
(2) in the
absence of bad faith on its part, such Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to such Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be furnished
to such Trustee, such Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) In case
an Event of Default with respect to a series of Securities has occurred and is
continuing, the Trustee for the Securities of such series 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 or her own affairs.
(c) No
provision of this Indenture shall be construed to relieve the Trustee for the
Securities of any series from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except
that:
(1) this
Subsection shall not be construed to limit the effect of Subsection (a) of this
Section;
(2) such
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that such Trustee was negligent
in ascertaining the pertinent facts;
(3) such
Trustee shall not be liable with respect to any action taken, suffered or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding Securities of any
particular series, determined as provided in Section 512, relating to the time,
method and place of conducting any proceeding for any remedy available to such
Trustee, or exercising any trust or power conferred upon such Trustee, under
this Indenture with respect to the Securities of that series; and
(4) no
provision of this Indenture shall require the Trustee for any series of
Securities to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(d) Whether
or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee for any series of Securities shall be subject to the provisions of this
Section.
48
Within 90
days after the occurrence of any default hereunder with respect to the
Securities of any particular series, the Trustee for the Securities of such
series shall transmit by mail to all Holders of Securities of that series, as
their names and addresses appear in the Security Register for that series,
notice of such default hereunder known to such Trustee, unless such default
shall have been cured or waived; provided,
however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest, if any, on any Security of that series or in the payment of
any sinking fund installment with respect to Securities of that series, such
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of such Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of Securities of
that series; and provided,
further, that in
the case of any default of the character specified in Section 501(4) with
respect to Securities of that series, no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term “default” means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities of
that series.
Subject
to the provisions of Section 601:
(a) the
Trustee for any series of Securities may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any
request or direction of the Company or, in the case of Guaranteed Securities,
the Guarantor mentioned herein shall be sufficiently evidenced by a Company
Request or Company Order of the Company or, in the case of Guaranteed
Securities, the Guarantor, as the case may be, and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution of the Company
or, in the case of Guaranteed Securities, the Guarantor, as the case may
be;
(c) whenever
in the administration of this Indenture such Trustee shall deem it desirable
that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, such Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s
Certificate;
(d) such
Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) such
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
of Securities of any series pursuant to this Indenture for which it is acting as
Trustee, unless such Holders shall have offered to such Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
49
(f) such
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 such Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if such Trustee shall determine to make such
further inquiry or investigation, it shall be entitled upon reasonable request
to examine the books, records and premises of the Company, personally or by
agent or attorney; and
(g) such
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 such 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.
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, in the case of Guaranteed Securities, the Guarantor, and neither the
Trustee for any series of Securities nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee for any series of Securities
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. Neither the Trustee for any series of Securities nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
The
Trustee for any series of Securities, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company, the Guarantor
or such Trustee, in its individual or any other capacity, may become the owner
or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company or the Guarantor with the same rights it would
have if it were not such Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Money
held by the Trustee for any series of Securities in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
for any series of Securities shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company or,
in the case of Guaranteed Securities, the Guarantor.
50
The
Company agrees:
(1) to pay to
the Trustee for any series of Securities from time to time such compensation for
all services rendered by it hereunder as shall be agreed upon in writing from
time to time by the Company and such Trustee (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 for any series of
Securities upon its request for all reasonable expenses, disbursements and
advances incurred or made by such Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the reasonable
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(3) to
indemnify such Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this trust or 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.
The
Trustee for any series of Securities shall have a lien prior to the Securities
as to all property and funds held by such Trustee hereunder for any amount owing
it or any predecessor Trustee pursuant to this Section 607, except with
respect to funds held in trust for the benefit of the Holders of such particular
Securities.
When the
Trustee for any series of Securities incurs expenses or renders services in
connection with an Event of Default specified in Section 501(5) or
Section 501(6), the expenses (including the reasonable charges and expenses
of its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
The
provisions of this Section shall survive the termination of this Indenture.
If the
Trustee for any series of Securities has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, such Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture. In
determining whether such Trustee has a conflicting interest as defined in
Section 310(b) of the Trust Indenture Act with respect to the Securities of any
series, there shall be excluded Securities of any particular series of
Securities other than that series.
51
There
shall at all times be a Trustee hereunder for each series of Securities which
shall be a corporation or bank organized and doing business under the laws of
the United States of America, any State thereof, or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 subject to supervision or
examination by Federal or State authority. If such corporation or bank publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time such Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this
Article.
A
different Trustee may be appointed by the Company for each series of Securities
prior to the issuance of such Securities. If the initial Trustee for any series
of Securities is to be other than Xxxxx Fargo Bank, N.A., the Company and such
Trustee shall, prior to the issuance of such Securities, execute and deliver an
indenture supplemental hereto, which shall provide for the appointment of such
Trustee as Trustee for the Securities of such series and shall add to or change
any of the provisions of this Indenture as shall be necessary to 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 to be co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such
Trustee.
(a) No
resignation or removal of the Trustee for the Securities of any series and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The
Trustee for the Securities of any series may resign at any time with respect to
the Securities of such 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 for the Securities
of such series 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.
(c) The
Trustee for the Securities of any series may be removed at any time with respect
to the Securities of such series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered to such
Trustee and to the Company.
(d) If at any
time:
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(1) the
Trustee for the Securities of any series shall fail to comply with
Section 608 after written request thereof by the Company or by any Holder
who has been a bona fide Holder of a Security of such series for at least six
months; or
(2) such
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) such
Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of such Trustee or of its property shall be appointed or
any public officer shall take charge or control of such Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in
any such case, (i) the Company by a Board Resolution may remove such
Trustee and appoint a successor Trustee, or (ii) subject to
Section 514, 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 removal
of such Trustee and the appointment of a successor Trustee or
Trustees.
(e) If the
Trustee for the Securities of any series shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
the Securities of any series for any cause, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee with respect to the Securities of
such series and shall comply with the applicable 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 such series shall not have been appointed by the
Company pursuant to this Section 610, then a successor Trustee may be appointed
by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring Trustee. If
no successor Trustee for the Securities of such series shall have been so
appointed by the Company or the Holders and shall have accepted appointment in
the manner required by Section 611, and if such Trustee to be replaced is still
incapable of acting, any Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The
Company shall give notice of each resignation and each removal of the Trustee
with respect to the Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series by mailing written notice
of such event by first-class mail, postage prepaid, to all Holders of Securities
of such series as their names and addresses appear in the Security Register.
Each notice shall include the name of the successor Trustee with respect to the
Securities of that series and the address of its Corporate Trust
Office.
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(a) Every
such successor Trustee appointed hereunder with respect to the Securities of any
series shall execute, acknowledge and deliver to the Company, the Guarantor (in
the case of Guaranteed Securities) and 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, the Guarantor (in the case of Guaranteed Securities) 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.
(b) In case
of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the Guarantor (in
the case of Guaranteed Securities), 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 each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates; but, on request of the
Company, the Guarantor (in the case of Guaranteed Securities) or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon
request of any such successor Trustee, the Company and, in the case of
Guaranteed Securities, the Guarantor shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers, and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
54
(d) No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee for the Securities of any series shall be
qualified and eligible under this Article.
Any
corporation into which the Trustee for the Securities of any series 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 Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of such Trustee, shall be the successor of such
Trustee hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee or the
Authenticating Agent for such series then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee or Authenticating
Agent, as the case may be, may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee or
successor Authenticating Agent had itself authenticated such
Securities.
SECTION
613. Preferential
Collection of Claims Against the Company or
the Guarantor.
If and
when the Trustee of any series of Securities shall be or become a creditor of
the Company or, in the case of Guaranteed Securities, the Guarantor (or any
other obligor upon the Securities), such 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).
From time
to time the Trustee of any series of Securities, in its sole discretion, may
appoint one or more Authenticating Agents with respect to the Securities of such
series, which may include the Company, the Guarantor or any Affiliate of the
Company or the Guarantor, with power to act on the Trustee’s behalf and subject
to its discretion in the authentication and delivery of Securities of such
series or in connection with transfers and exchanges under Sections 304, 305,
306 and 1107 as fully to all intents and purposes as though such Authenticating
Agent had been expressly authorized by those Sections of this Indenture to
authenticate and deliver Securities of such series. For all purposes of this
Indenture, the authentication and delivery of Securities of such series by an
Authenticating Agent for such Securities pursuant to this Section shall be
deemed to be authentication and delivery of such Securities “by the Trustee” for
the Securities of such series. Any such Authenticating Agent shall be acceptable
to the Company and shall at all times be a corporation organized and doing
business under the laws of the United States, any State thereof or the District
of Columbia, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $25,000,000 and, if other than
the Company, the Guarantor or any Affiliate of the Company or the Guarantor,
subject to supervision or examination by Federal, State or District of Columbia
authority. If such corporation publishes reports of condition at least annually
pursuant to law or the requirements of such authority, then for the purposes of
this Section the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent for any
series of Securities shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
55
Any
corporation into which any Authenticating Agent may be merged or with which it
may be consolidated, or any corporation resulting from any merger or
consolidation or to which any Authenticating Agent shall be a party, or any
corporation succeeding to the corporate trust business of any Authenticating
Agent, shall be the successor of such Authenticating Agent hereunder, if such
successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the parties
hereto or the Authenticating Agent or such successor corporation.
Any
Authenticating Agent for any series of Securities may resign at any time by
giving written notice of resignation to the Trustee for such series and to the
Company. The Trustee for any series of Securities may at any time terminate the
agency of any Authenticating Agent for such series by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time any
Authenticating Agent for any series of Securities shall cease to be eligible
under this Section, the Trustee for such series may appoint a successor
Authenticating Agent, which shall be acceptable to the Company, shall give
written notice of such appointment to the Company and shall give written notice
of such appointment to all Holders of Securities of such series with respect to
which such Authenticating Agent will serve, as the names and addresses of such
Holders appear on the Security Register. Any successor Authenticating Agent,
upon acceptance of its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this
Section.
The
Trustee for any series of Securities agrees to pay to the Authenticating Agent
for such series from time to time reasonable compensation for its services, and
such Trustee shall be entitled to be reimbursed for such payments, subject to
Section 607.
If an
appointment with respect to one or more series of Securities 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:
This is
one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
Xxxxx
Fargo Bank, N.A., as Trustee
By
____________________________
56
As
Authenticating Agent
By
____________________________
Authorized
Officer
The
provisions of Sections 309, 604 and 605 shall be applicable to any
Authenticating Agent.
ARTICLE
SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
With
respect to each particular series of Securities, the Company will furnish or
cause to be furnished to the Trustee for the Securities of such
series,
(a) semi-annually,
not later than 15 days after each Regular Record Date, or, in the case of any
series of Securities on which semi-annual interest is not payable, not more than
15 days after such semi-annual dates as may be specified by such Trustee, a
list, in such form as such Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date or semi-annual date, as
the case may be, and
(b) at such
other times as such Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished;
provided,
however, that so
long as such Trustee is Security Registrar for any series of Securities, no such
list shall be required to be furnished with respect to any such
series.
(a) The
Trustee for each series of Securities 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 such Trustee as provided in Section 701 and the names
and addresses of Holders received by such Trustee in its capacity as Security
Registrar. Such Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three
or more Holders of any particular series (herein referred to as “applicants”)
apply in writing to the Trustee for the Securities of such series, and furnish
to such Trustee reasonable proof that each such applicant has owned a Security
for a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Securities of such series with respect to their rights under this
Indenture or under the Securities and is accompanied by a copy of the form of
proxy or other communication which such applicants propose to transmit, then
such Trustee shall, within five business days after the receipt of such
application, at its election, either
57
(i)
afford such applicants access to the information preserved at the time by such
Trustee in accordance with Section 702(a); or
(ii)
inform such applicants as to the approximate number of Holders of Securities of
such series whose names and addresses appear in the information preserved at the
time by such Trustee in accordance with Section 702(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If any
such Trustee shall elect not to afford such applicants access to such
information, such Trustee shall, upon the written request of such applicants,
mail to each Holder of Securities of such series whose name and address appear
in the information preserved at the time by such Trustee in accordance with
Section 702(a) a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to such
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender such Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of such Trustee, such mailing would
be contrary to the best interest of the Holders or would be in violation of
applicable law. Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, such Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the renewal
of such tender, otherwise such Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Every
Holder of Securities of each series, by receiving and holding the same, agrees
with the Company, the Guarantor and the Trustee for the Securities of such
series that none of the Company, the Guarantor and such Trustee nor any agent of
any of them shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Section 702(b), regardless of the source from which such information was
derived, and that such Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section
702(b).
(d) The U.S.
Depositary may grant proxies and otherwise authorize its participants which own
the Global Securities to give or take any Act which a Holder is entitled to take
under the Indenture; provided,
however, that
the U.S. Depositary has delivered a list of such participants to the Trustee for
the Securities of such series.
58
(a) The
Trustee for the Securities of each series shall transmit to Holders of
Securities of each series for which such Trustee serves such reports concerning
such 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 for the Securities of each series shall, within sixty days after each
May 15 following the date of this Indenture deliver to Holders of Securities of
each series for which such Trustee serves a brief report, dated as of such May
15, which complies with the provisions of such Section 313(a).
(b) A copy of
each such report shall, at the time of such transmission to Holders of
Securities of each particular series be filed by each particular 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.
The
Company shall:
(1) file with
the Trustee for the Securities of each series, within 15 days after the Company
is required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such portions
of any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with such
Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934, in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(2) file with
the Trustee for the Securities of such series and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit
by mail to all Holders, as their names and addresses appear in the Security
Register, within 30 days after the filing thereof with the Trustee for the
Securities of such series, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and (2)
of this Section as may be required by rules and regulations prescribed from time
to time by the Commission.
59
Delivery
of such reports, information and documents to the Trustee for the Securities of
each series is for informational purposes only and such Trustee’s receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which such
Trustee is entitled to rely exclusively on Officer’s Certificates).
ARTICLE
EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE
(a) Subject
to the provisions of Section 802, nothing contained in this Indenture or in any
of the Securities shall prevent any consolidation, amalgamation or merger of the
Company with or into any other corporation or corporations (whether or not
affiliated with the Company) or successive consolidations, amalgamations or
mergers in which the Company or its successor or successors shall be a party or
parties, or shall prevent any sale, conveyance or lease of all or substantially
all the property of the Company, to any other corporation (whether or not
affiliated with the Company), authorized to acquire and operate the same;
provided,
however, that the
Company hereby covenants and agrees, that upon any such consolidation,
amalgamation, merger, sale, conveyance or lease, the due and punctual payment of
the principal of (and premium, if any) and interest, if any, 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 supplemental indenture
reasonably satisfactory in form to the Trustee for each series of Securities,
executed and delivered to each such Trustee by the corporation (if other than
the Company) formed by such consolidation or amalgamation, or into which the
Company shall have been merged, or by the corporation which shall have acquired
or leased such property, and provided
further, that
such corporation shall be a solvent corporation organized under the laws of the
United States of America or a State thereof or the District of Columbia or
Bermuda. The Company will not so consolidate, amalgamate or merge, or make any
such sale, lease or other disposition, and the Company will not permit any other
corporation to merge into the Company, unless immediately after the proposed
consolidation, amalgamation, merger, sale, lease or other disposition, and after
giving effect thereto, the Company or such successor corporation, as the case
may be, will not be in default in the performance or observance of any of the
terms, covenants, agreements or conditions contained in this
Indenture.
(b) Nothing
contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of the Guarantor with or into any other corporation or
corporations (whether or not affiliated with the Guarantor) or successive
consolidations or mergers in which the Guarantor or its successor or successors
shall be a party or parties, or shall prevent any sale, conveyance or lease of
all or substantially all the property of the Guarantor, to any other corporation
(whether or not affiliated with the Guarantor), authorized to acquire and
operate the same; provided,
however, that
with respect to Guaranteed Securities, the Guarantor hereby covenants and
agrees, that upon any such consolidation, merger, sale, conveyance or lease to
or with a Person other than the Company, the performance of the obligations
under the Guarantee, and the due and punctual performance and observance of all
of the covenants and conditions of this Indenture to be performed by the
Guarantor shall be expressly assumed, by supplemental indenture reasonably
satisfactory in form to the Trustee for each series of Guaranteed Securities,
executed and delivered to each such Trustee by the corporation (if other than
the Guarantor) formed by such consolidation, or into which the Guarantor shall
have been merged, or by the corporation which shall have acquired or leased such
property, and provided
further, that
with respect to Guaranteed Securities, except in the case of any such
consolidation, amalgamation, merger, sale, conveyance or lease to or with the
Company, such corporation shall be a solvent corporation organized under the
laws of the United States of America or a State thereof or the District of
Columbia. With respect to the Guaranteed Securities, except in the case of a
consolidation, amalgamation, merger, sale, conveyance or lease to or with the
Company, the Guarantor will not so consolidate or merge, or make any such sale,
lease or other disposition, and the Guarantor will not permit any other
corporation to merge into the Guarantor, unless immediately after the proposed
consolidation, merger, sale, lease or other disposition, and after giving effect
thereto, the Guarantor or such successor corporation, as the case may be, will
not be in default in the performance or observance of any of the terms,
covenants, agreements or conditions contained in this Indenture or the
Guarantee. Notwithstanding the preceding sentences, the Guarantor may
consolidate or merge with or into or sell, convey or lease all or substantially
all of its property or sell any or all of its capital stock to the Company
without limitation.
60
If upon
any such consolidation, amalgamation or merger, or upon any such sale,
conveyance or lease, or upon any consolidation, amalgamation or merger of any
Restricted Subsidiary, or upon the sale, conveyance or lease of all or
substantially all the property of any Restricted Subsidiary to any other
corporation, any Principal Property or any shares of stock or Funded
Indebtedness of any Restricted Subsidiary owned immediately prior thereto would
thereupon become subject to any Mortgage, the Company, prior to such
consolidation, amalgamation, merger, sale, conveyance or lease, will by
indenture supplemental hereto secure the due and punctual payment of the
principal of and premium, if any, and interest, if any, on the Securities
(together with, if the Company shall so determine, any other indebtedness of or
guarantee by the Company or such Restricted Subsidiary ranking equally with the
Securities and then existing or thereafter created) by a Mortgage, the lien of
which, upon completion of said merger, consolidation, amalgamation, sale,
conveyance or lease, will rank prior to the lien of such Mortgage of such other
corporation on all assets owned by the Company or such Restricted Subsidiary
immediately prior to such merger, consolidation, amalgamation, sale, conveyance
or lease.
(a) Upon any
consolidation, amalgamation or merger of the Company with or into any other
corporation or corporations or any sale, conveyance or lease of all or
substantially all of the property of the Company to any other corporation or
corporations in accordance with this Article Eight, the successor shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture and the Securities with the same effect as if such
successor had been named as the Company herein and therein, and thereafter,
except in the case of a lease, the Company as the predecessor corporation shall
be relieved of all obligations and covenants under this Indenture and the
Securities and the Company as the predecessor corporation may thereupon or at
any time thereafter be dissolved, wound up or liquidated.
(b) Subject
to Section 801(b), upon any consolidation or merger of the Guarantor with or
into any other corporation or corporations or any sale, conveyance or lease of
all or substantially all of the property of the Guarantor to any other
corporation or corporations in accordance with this Article Eight, the successor
shall succeed to, and be substituted for, and may exercise every right and power
of, the Guarantor under this Indenture, the Securities and the Guarantee with
the same effect as if such successor had been named as the Guarantor herein and
therein, and thereafter, except in the case of a lease, the Guarantor as
predecessor corporation shall be relieved of all obligations and covenants under
this Indenture and the Guarantee, and the Guarantor as the predecessor
corporation may thereupon or at any time thereafter be dissolved, wound up or
liquidated.
The
Trustee for each series of Securities, subject to Section 601, shall be entitled
to receive an Opinion of Counsel as conclusive evidence that any such
consolidation, amalgamation, merger, sale, conveyance or lease and any such
assumption complies with the provisions of this Article.
ARTICLE
NINE
SUPPLEMENTAL INDENTURES
SUPPLEMENTAL INDENTURES
Without
the consent of any Holders, the Company, the Guarantor (in the case of
Guaranteed Securities) and the Trustee for the Securities of any or all series,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, for any of the purposes set forth below in this Section
901. The terms of such supplemental indenture may be established by one or more
duly appointed officers of the Company and, if the Securities are Guaranteed
Securities, one or more duly appointed officers of the Guarantor, acting
pursuant to authority granted to such officers by the board of directors of the
Company and, if the Securities are Guaranteed Securities, by the board of
directors of the Guarantor. A supplemental indenture, in form reasonably
satisfactory to the Trustee, may be entered into pursuant to this Section 901
for any of the following purposes:
61
(1) to
evidence the succession of another corporation to the Company or (in the case of
Guaranteed Securities) the Guarantor and the assumption by any such successor of
the covenants of the Company herein and in the Securities or the assumption by
any such successor of the covenants of the Guarantor (in the case of Guaranteed
Securities) herein and in the Guarantee; or
(2) to add to
the covenants of the Company or the Guarantor (in the case of Guaranteed
Securities) for the benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred
upon the Company or the Guarantor, as applicable; or
(3) to add
any additional Events of Default; 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; or
(5) to change
or eliminate any of the provisions of this Indenture, provided
that any
such change or elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provisions; or
(6) to secure
the Securities; 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
Trustee with respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611(b); or
(9) to
evidence and provide for the acceptance of appointment hereunder of a Trustee
other than Xxxxx Fargo Bank, N.A. as Trustee for a series of Securities 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 609; or
(10) to
provide for any rights of the Holders of Securities of any series to require the
repurchase of Securities of such series from the Company; or
(11) to cure
any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Indenture, provided such
action shall not adversely affect the interests of the Holders of Securities of
any series in any material respect;
62
(12) to
continue its qualification under the Trust Indenture Act or as may be necessary
or desirable in accordance with amendments to the Trust Indenture Act;
or
(13) for any
other reason specified pursuant to Section 301 with respect to the Securities of
such series.
With the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of any or all series affected by such supplemental
indenture (voting as one class), by Act of said Holders delivered to the
Company, the Guarantor (in the case of Guaranteed Securities) and the Trustee of
each such series of Securities, the Company, when authorized by or pursuant to a
Board Resolution of its Board of Directors, the Guarantor, when authorized by or
pursuant to a Board Resolution by the Guarantor’s Board of Directors, and each
such Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of such series under this Indenture; provided,
however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change
the Stated Maturity of the principal of, or any installment of principal of or
interest, if any, 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
that would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or the interest thereon
is payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or (in the case of Guaranteed
Securities) release the Guarantor from any of its obligations under the
Guarantee otherwise than in accordance with the terms of this
Indenture;
(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 1008, 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 and Section 1008, or the deletion of this proviso, in accordance
with the requirements of Sections 609, 611(b), 901(8) and 901(9).
63
A
supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall
not be necessary for any Act of Holders of any series of Securities under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance
thereof.
In
executing, or accepting the additional trusts created by, and supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee for any series of Securities shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
for any series of Securities may, but shall not be obligated to, enter into any
such supplemental indenture which affects such Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
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.
Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
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 for the Securities of such series, bear a notation in form approved
by such Trustee as to any matter provided for in such supplemental indenture. If
the Company or (in the case of Guaranteed Securities) the Guarantor shall so
determine, new forms of the Securities of any series and (in the case of
Guaranteed Securities) any Guarantees endorsed thereon modified as to conform,
in the opinion of the Trustee for the Securities of such series , the Company
and (in the case of Guaranteed Securities) the Guarantor, to any supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by such Trustee in exchange for Outstanding Securities of such
series.
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ARTICLE
TEN
COVENANTS
COVENANTS
The
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay the principal of (and premium, if any) and
interest, if any, on the Securities of that series in accordance with the terms
of the Securities and this Indenture.
The
Company will maintain in each Place of Payment for any series of Securities an
office or agency where Securities of that series may be presented or surrendered
for payment, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities are Guaranteed Securities, the Guarantor will maintain an office or
agency in each Place of Payment for any series of Guaranteed Securities where
notices and demands to or upon the Guarantor in respect of the Guaranteed
Securities of that series and this Indenture may be served. The Company and (in
the case of Guaranteed Securities) the Guarantor will give prompt written notice
to the Trustee for Securities of that series of the location, and any change in
the location, of such office or agency. If at any time the Company or (in the
case of Guaranteed Securities) the Guarantor shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee for the
Securities of that series with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of such Trustee, and the Company and (in the case of Guaranteed
Securities) the Guarantor hereby appoint such Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
The
Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided,
however, that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee for the Securities of each series of any such designation
or rescission and of any change in the location of any such other office or
agency.
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
premium, if any) or interest, if any, on any of the Securities of that series,
segregate and hold in trust for the benefit of the persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest, if any,
so becoming due until such sums shall be paid to such persons or otherwise
disposed of as herein provided and will promptly notify the Trustee for the
Securities of such series of its action or failure so to act.
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Whenever
the Company shall have one or more Paying Agents for any series of Securities,
it will, prior to each due date of the principal of (and premium, if any) or
interest, if any, on any Securities of that series, deposit with a Paying Agent
a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee for the Securities of such series) the Company will promptly
notify such 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 for the Securities of such series to execute and deliver to such Trustee
an instrument in which such Paying Agent shall agree with such Trustee, subject
to the provisions of this Section, that such Paying Agent will:
(1) hold all
sums held by it for the payment of the principal of (and premium, if any) or
interest, if any, on Securities of that series in trust for the benefit of the
persons entitled thereto until such sums shall be paid to such persons or
otherwise disposed of as herein provided;
(2) give such
Trustee notice of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment of principal (and
premium, if any) or interest, if any, on the Securities of that series;
and
(3) at any
time during the continuance of any such default, upon the written request of
such Trustee, forthwith pay to such Trustee all sums so held in trust by such
Paying Agent.
The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee for the Securities of any series
all sums held in trust by the Company or such Paying Agent, such sums to be held
by such Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent to
such 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 for the Securities of any series,
or then held by the Company or (in the case of Guaranteed Securities) the
Guarantor, in trust for the payment of the principal of (and premium, if any) or
interest, if any, on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company or (in the case of Guaranteed Securities)
the Guarantor on Company Request, or (if then held by the Company or (in the
case of Guaranteed Securities) the Guarantor) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company or (in the case of Guaranteed Securities) the
Guarantor, as the case may be, for payment thereof, and all liability of such
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company or (in the case of Guaranteed Securities) the Guarantor, as the
case may be, as trustee thereof, shall thereupon cease; provided,
however, that
such 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 the City, County and State of
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 or (in the case of Guaranteed Securities) the Guarantor,
as the case may be.
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(a) The
Company covenants and agrees for the benefit of each series of Securities, other
than any series established by or pursuant to a Board Resolution of the Company
or in one or more supplemental indentures hereto which specifically provides
otherwise, that it will not, and will not permit any Restricted Subsidiary to,
create, assume or guarantee any indebtedness for money borrowed secured by a
Mortgage (i) on any Principal Property of the Company or of a Restricted
Subsidiary or (ii) on any shares or Funded Indebtedness of a Restricted
Subsidiary (whether such Principal Property, shares or Funded Indebtedness are
now owned or hereafter acquired), without, in any such case, effectively
providing concurrently with the creation, assumption or guaranteeing of such
indebtedness that the Securities (together, if the Company shall so determine,
with any other indebtedness then or thereafter existing, created, assumed or
guaranteed by the Company or such Restricted Subsidiary ranking equally with the
Securities) shall be secured equally and ratably with (or prior to) such
indebtedness; excluding,
however, from the
foregoing any indebtedness secured by a Mortgage (including any extension,
renewal or replacement, or successive extensions, renewals or replacements, of
any Mortgage hereinafter specified or any indebtedness secured thereby, without
increase of the principal of such indebtedness):
(1) on
property, shares or Funded Indebtedness of any corporation existing at the time
such corporation becomes a Restricted Subsidiary; or
(2) on
property existing at the time of acquisition thereof by the Company or a
Restricted Subsidiary, or to secure any indebtedness incurred by the Company or
a Restricted Subsidiary prior to, at the time of, or within 180 days after
the later of the acquisition, the completion of construction (including any
improvements on an existing property) or the commencement of commercial
operation of such property, which indebtedness is incurred for the purpose of
financing all or any part of the purchase price thereof or construction or
improvements thereon; provided,
however, that in
the case of any such acquisition, construction or improvement the Mortgage shall
not apply to any property theretofore owned by the Company or a Restricted
Subsidiary, other than, in the case of any such construction or improvement, any
theretofore unimproved real property on which the property so constructed, or
the improvement, is located; or
67
(3) on
property, shares or Funded Indebtedness of a corporation existing at the time
such corporation is merged into or consolidated with the Company or a Restricted
Subsidiary, or at the time of a sale, lease or other disposition of the
properties of a corporation as an entirety or substantially as an entirety to
the Company or a Restricted Subsidiary; or
(4) on
property of a Restricted Subsidiary to secure indebtedness of such Restricted
Subsidiary to the Company or another Restricted Subsidiary; or
(5) on
property of the Company or a Restricted Subsidiary in favor of the
United States of America or any State thereof or Bermuda, or any
department, agency or instrumentality or political subdivision of the
United States of America or any State thereof or Bermuda, to secure
partial, progress, advance or other payments pursuant to any contract or statute
or to secure any indebtedness incurred for the purpose of financing all or any
part of the purchase price or the cost of constructing or improving the property
subject to such Mortgage; or
(6) existing
at the date of this Indenture;
provided,
however, that any
Mortgage permitted by any of the foregoing clauses (1), (2), (3) and (5) of this
Section 1004(a) shall not extend to or cover any property of the Company or such
Restricted Subsidiary, as the case may be, other than the property specified in
such clauses and improvements thereto.
(b) Notwithstanding
the provisions of subsection (a) of this Section 1004, the Company or any
Restricted Subsidiary may create, assume or guarantee secured indebtedness for
money borrowed which would otherwise be prohibited in said subsection (a) in an
aggregate amount which, together with all other such indebtedness for money
borrowed of the Company and its Restricted Subsidiaries and the Attributable
Debt of the Company and its Restricted Subsidiaries in respect of Sale and
Leaseback Transactions (as defined in Section 1005) existing at such time (other
than Sale and Leaseback Transactions entered into prior to the date of this
Indenture and Sale and Leaseback Transactions the proceeds of which have been
applied in accordance with clause (b) of Section 1005), does not at the time
exceed 10% of the shareholders’ equity in the Company and its consolidated
Subsidiaries, as shown on the audited consolidated balance sheet contained in
the latest annual report to shareholders of the Company.
(c) For the
purposes of this Article Ten,
(1) the term
“Attributable Debt” shall mean, as of any particular time, the then present
value of the total net amount of rent required to be paid under such lease
during the remaining term thereof (excluding any renewal term unless the renewal
is at the option of the lessor) computed by discounting from the respective due
dates to such date such total net amount of rent at the actual interest factor
included in such rent, or, if such interest factor cannot readily be determined,
at the rate per annum borne by the initial series of Securities, except
that if no interest is payable in respect of the initial series of Securities or
if such rate is not fixed then at the rate of 8⅜% per annum. The net amount
of rent required to be paid for any such period shall be the aggregate amount of
the rent payable by the lessee with respect to such period after excluding
amounts required to be paid on account of, or measured or determined by, any
variable factor, including, without limitation, the cost-of-living index and
costs of maintenance and repairs, insurance, taxes, assessments, water rates and
similar charges and after excluding any portion of rentals based on a percentage
of sales made by the lessee. In the case of any lease which is terminable by the
lessee upon the payment of a penalty, such net amount shall also include the
amount of such penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated;
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(2) the term
“shareholders’ equity in the Company and its consolidated Subsidiaries” shall
mean the share capital, share premium, contributed surplus and retained earnings
of the Company and its consolidated Subsidiaries, excluding the cost of shares
of the Company held by its affiliates, all as determined in accordance with U.S.
generally accepted accounting principles; and
(3) the term
“Mortgage” on any specified property shall mean any mortgage, lien, pledge,
charge or other security interest or encumbrance of any kind in respect of such
property.
The
Company covenants and agrees for the benefit of each series of Securities, other
than any series established by or pursuant to a Board Resolution of the Company
or in one or more supplemental indentures hereto which specifically provides
otherwise, that it will not, and will not permit any Restricted Subsidiary to,
enter into any arrangement with any person for the leasing by the Company or a
Restricted Subsidiary (except for leases for a term of not more than three years
and for leases of a part of a Principal Property, which has been sold, for use
in connection with the winding up or termination of the business conducted on
such Principal Property, and except, in the case of a Restricted Subsidiary, a
lease to the Company or another Restricted Subsidiary) of any Principal Property
(whether now owned or hereafter acquired), which Principal Property has been or
is intended to be sold or transferred by the Company or such Restricted
Subsidiary to such person (herein referred to as a “Sale and Leaseback
Transaction”), unless (a) the Company or such Restricted Subsidiary would
be entitled, pursuant to the provisions of Section 1004, to incur indebtedness
secured by a Mortgage on such Principal Property without equally and ratably
securing the Securities, or (b) the Company shall (and in any such case the
Company covenants that it will) apply an amount equal to the fair value of such
Principal Property so leased (as determined by the Board of Directors) to the
retirement (other than by payment at maturity or to satisfy the mandatory
requirements of any sinking, purchase or analogous fund or prepayment
provision), within 180 days of the effective date of any such Sale and
Leaseback Transaction, of Securities or other Funded Indebtedness of the Company
or any Restricted Subsidiary ranking on a parity with the Securities, or to the
purchase, improvement or construction of properties which are Principal
Properties; provided,
however, that the
amount to be applied to the retirement of such Funded Indebtedness shall be
reduced by (x) the principal amount of any Securities delivered within
180 days after such sale or transfer to the Trustee for the Securities of
such series for retirement and cancellation and (y) the principal amount of
other Funded Indebtedness ranking on a parity with the Securities voluntarily
retired by the Company within 180 days after such sale or transfer; and
promptly after the expiration of such 180-day period the Company shall have
delivered to the Trustee for the Securities of such series an Officer’s
Certificate setting forth in reasonable detail all material facts necessary to
show compliance with this Subsection.
69
The
Company may omit to comply with, and shall have no liability in respect of, any
term, provision or condition set forth in Sections 802, 1004 and 1005 (and the
Company and the Guarantor (in the case of Guaranteed Securities) may omit to
comply with, and shall have no liability in respect of any other provision or
condition specified pursuant to Section 301(13) for such Securities) with
respect to the Securities of any series whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant, to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or Event of Default under Section 501(4) or otherwise, as
the case may be, provided that the
following conditions shall have been satisfied:
(1) The
Company or the Guarantor has deposited or caused to be irrevocably deposited
(except as provided in Section 402(c) and the last paragraph of Section 1003)
with the Trustee for the Securities of such series (specifying that each deposit
is pursuant to this Section 1006) as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Securities of such series, (i) money in an amount, or (ii) (except as
provided in a supplemental indenture with respect to such series) if Securities
of such series are not subject to repurchase at the option of such Holders,
(A) U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide not
later than one day before the due date of any payment referred to in clause (x)
or (y) of this subparagraph (1) money in an amount, or (B) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification
thereof delivered to such Trustee, to pay and discharge (x) the principal of
(and premium, if any) and each installment of principal (and premium, if any)
and interest, if any, on the Outstanding Securities of such series on the Stated
Maturity of such principal or installment of principal or interest or to and
including the Redemption Date irrevocably designated by the Company pursuant to
subparagraph (4) of this Section and (y) any mandatory sinking fund payments
applicable to the Securities of such series on the day on which such payments
are due and payable in accordance with the terms of the Indenture and of the
Securities of such series;
(2) No Event
of Default or event which with notice or lapse of time would become an Event of
Default (including by reason of such deposit) with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit;
70
(3) The
Company or (in the case of Guaranteed Securities) the Guarantor shall have
delivered to such Trustee an Opinion of Counsel to the effect that Holders of
the Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and defeasance of
certain obligations; and
(4) If the
Company or (in the case of Guaranteed Securities) the Guarantor has deposited or
caused to be deposited money or U.S. Government Obligations to pay or
discharge the principal of (and premium, if any) and interest, if any, on the
Outstanding Securities of a series to and including a Redemption Date on which
all of the Outstanding Securities of such series are to be redeemed, such
Redemption Date shall be irrevocably designated by a Board Resolution of the
Company or delivered to such Trustee on or prior to the date of deposit of such
money or U.S. Government Obligations, and such Board Resolution shall be
accompanied by an irrevocable Company Request that such Trustee give notice of
such redemption in the name and at the expense of the Company and less than 30
nor more than 60 days prior to such Redemption Date in accordance with
Section 1104.
The
Company will deliver to the Trustee for each series of Securities, on or before
May 15 in each year ending after the date hereof, an Officer’s Certificate
stating that in the course of the performance by such signer of his or her
duties as an officer of the Company he would normally have knowledge of any
default by the Company in the performance and observance of any of the covenants
contained in Sections 802, 1004 and 1005, stating whether or not he has
knowledge of any such default and, if so, specifying each such default of which
such signer has knowledge and the nature thereof.
The
Company shall deliver to the Trustee, for each series of Securities as soon as
possible and in any event within five days after the Company becomes aware of
the occurrence of any Event of Default or an event which, with notice or the
lapse of time or both, would constitute an Event of Default, an Officer’s
Certificate setting forth the details of such Event of Default or default and
the action which the Company proposes to take with respect thereto.
The
Company may omit in any particular instance to comply with any term, provision
or condition set forth in Sections 802, 1004 and 1005 (and the Company and the
Guarantor may omit in any particular instance to comply with any term, provision
or condition specified pursuant to Section 301(13) for such Securities) if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of all series affected by such
omission (voting as one class) 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 Guarantor,
as the case may be, and the duties of the Trustee for the Securities of each
series in respect of any such term, provision or condition shall remain in full
force and effect.
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The
Company shall file with the Trustee for the Securities of each series promptly
at the end of each calendar year (i) a written notice specifying the amount
of original issue discount (including daily rates and accrual periods) accrued
on the Outstanding Securities as of the end of such year and (ii) such
other specific information relating to such original issue discount as may then
be relevant under the Internal Revenue Code of 1986, as amended from time to
time.
ARTICLE
ELEVEN
REDEMPTION OF SECURITIES
REDEMPTION OF SECURITIES
Securities
of any series which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of any series) in accordance
with this Article.
The
election of the Company to redeem any Securities of any series shall be
evidenced by an Officer’s Certificate. In case of any redemption at the election
of the Company of less than all the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless
a shorter notice shall be reasonably satisfactory to the Trustee for the
Securities of such series), notify such Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed, such notice to
be accompanied by a written statement signed by an authorized officer of the
Company stating that no defaults in the payment of interest or Events of Default
with respect to the Securities of that series have occurred (which have not been
waived or cured). In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
for the Securities of such series with an Officer’s Certificate evidencing
compliance with such restriction.
If less
than all the Securities of any series are to be redeemed, the particular
Securities of that series to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Trustee for the Securities of
such series, from the Outstanding Securities of such series not previously
called for redemption, by such method as such Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of that series or
any integral multiple thereof) of the principal amount of Securities of such
series of a denomination larger than the minimum authorized denomination for
Securities of that series.
Securities
shall be excluded from eligibility for selection for redemption if they are
identified by registration and certificate number in a written statement signed
by an authorized officer of the Company and delivered to the Trustee for the
Securities of such series at least 60 days prior to the Redemption Date as
being owned of record and beneficially by, and not pledged or hypothecated by
either (a) the Company or (in the case of Guaranteed Securities) the
Guarantor or (b) an entity specifically identified in such written
statement which is an Affiliate of the Company or (in the case of Guaranteed
Securities) the Guarantor.
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The
Trustee for the Securities of such series shall promptly notify the Company and
(in the case of Guaranteed Securities) the Guarantor in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be
redeemed.
For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities which has been or is to be
redeemed.
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 or her 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 the Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts)
of the particular Securities to be redeemed;
(4) that on
the Redemption Date the Redemption Price will become due and payable upon each
such Security to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date;
(5) the place
or places where such Securities are to be surrendered for payment of the
Redemption Price; and
(6) that the
redemption is for a sinking fund, if such is the case.
Notice of
redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s request, by the Trustee for such
Securities in the name and at the expense of the Company.
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At least
one Business Day prior to any Redemption Date, the Company or (in the case of
Guaranteed Securities) the Guarantor shall deposit with the Trustee for the
Securities to be redeemed or with a Paying agent (or, if the Company or (in the
case of Guaranteed Securities) the Guarantor is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date (to the extent that such amounts are not already
on deposit at such time in accordance with the provisions of Section 401, 403 or
1006).
Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued and unpaid interest)
such Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price, together with accrued and unpaid
interest to the Redemption Date; provided,
however, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of
Section 307.
If any
Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the
Security.
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 for such Security so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and such Trustee duly executed by, the Holder
thereof or his or her attorney duly authorized in writing), and the Company
shall execute, and such Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of the same
series, and, in the case of Guaranteed Securities, having endorsed thereon the
Guarantee executed by the Guarantor, 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.
74
ARTICLE
TWELVE
SINKING FUNDS
SINKING FUNDS
The
provisions of this Article shall be applicable to any sinking fund for the
retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a “mandatory sinking fund
payment,” and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an “optional sinking
fund payment.” If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
In lieu
of making all or any part of any mandatory sinking fund payment with respect to
any series of Securities in cash, the Company may at its option (a) deliver
to the Trustee for such Securities, Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Company or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Company and delivered to such Trustee for
cancellation pursuant to Section 309, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this
Section, or (c) receive credit for Securities of such series (not
previously so credited) redeemed by the Company through any optional redemption
provision contained in the terms of such series. Securities so delivered or
credited shall be received or credited by such Trustee at the sinking fund
redemption price specified in such Securities.
Not less
than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee for the Securities of such
series an Officer’s Certificate (which need not contain the statements required
by Section 102) stating that no defaults in the payment of interest, if
any, with respect to Securities of that series and no Events of Default with
respect to Securities of that series have occurred (which in either case have
not been waived or cured) and (a) specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series,
(b) whether or not the Company intends to exercise its right, if any, to
make an optional sinking fund payment with respect to such series on the next
ensuing sinking fund payment date and, if so, the amount of such optional
sinking fund payment, and (c) the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and will also deliver to such Trustee any Securities to be so
delivered. Such written statement shall be irrevocable and upon its receipt by
such Trustee the Company shall become unconditionally obligated to make all the
cash payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company, on or before any
such 60th day, to
deliver such written statement and Securities specified in this paragraph, if
any, shall not constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Company (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Securities of such series in respect therefor and (ii) that the
Company will make no optional sinking fund payment with respect to such series
as provided in this Section.
75
Not less
than 30 days before each such sinking fund payment date the Trustee for any
series of Securities shall select the Securities of such series 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, 1106 and 1107.
The
Trustee for any series of Securities shall not redeem or cause to be redeemed
any Security of such series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking fund during
the continuance of a default in payment of interest with respect to Securities
of that series or an Event of Default with respect to the Securities of that
series except that, where the mailing of notice of redemption of any Securities
shall theretofore have been made, such Trustee shall redeem or cause to be
redeemed such Securities, provided that it shall have received from the Company
a sum sufficient for such redemption. Except as aforesaid, any moneys in the
sinking fund for such series at the time when any such default or Event of
Default, shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default, be deemed to
have been collected under Article Five and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in
Section 513 or the default or Event of Default cured on or before the
60th day
preceding the sinking fund payment date, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
ARTICLE
THIRTEEN
GUARANTEE OF GUARANTEED SECURITIES
GUARANTEE OF GUARANTEED SECURITIES
(a) Subject
to the provisions of this Article Thirteen and for good and valuable
consideration, the receipt of which is hereby acknowledged, the Guarantor hereby
fully and unconditionally guarantees to each Holder of a Guaranteed Security of
each series authenticated and delivered by the Trustee for such Guaranteed
Securities hereunder and to such Trustee on behalf of each such Holder, the due
and punctual payment of principal of, premium, if any, and interest on the
Guaranteed Securities when and as the same shall become due and payable, whether
at the Stated Maturity, by declaration of acceleration, call for redemption or
otherwise, according to the terms thereof and of this Indenture. In case of the
failure of the Company promptly to make any such payment of principal, premium,
if any, or interest, the Guarantor hereby agrees to make any such payment to be
made promptly when and as the same shall become due and payable, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise, and as if such payment were made by the Company.
76
(b) The
Guarantor hereby agrees that its obligations hereunder shall be as if it were
principal debtor and not merely surety, and shall be absolute and unconditional,
joint and several, irrespective of, and shall be unaffected by any failure to
enforce the provisions of such Guaranteed Security or this Indenture, or any
waiver, modification or indulgence granted to the Company with respect thereto,
by the Holder of such Guaranteed Security or the Trustee for the Securities of
such series or any other circumstance which may otherwise constitute a legal or
equitable discharge of a surety or guarantor; provided,
however, that,
notwithstanding the foregoing, no such waiver, modification or indulgence shall,
without the consent of the Guarantor, increase the principal amount of such
Guaranteed Security, or increase the interest rate thereon, or increase any
premium payable upon redemption thereof, or alter the Stated Maturity thereof,
or increase the principal amount of any Original Issue Discount Security that
would be due and payable upon a declaration of acceleration or the maturity
thereof pursuant to Article Five of this Indenture. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of merger or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest or notice with respect to such Guaranteed
Security or the indebtedness evidenced thereby or with respect to any sinking
fund or analogous payment required under such Guaranteed Security and all
demands whatsoever, and covenants that this Guarantee will not be discharged
except by payment in full of the principal of, premium, if any, and interest on
such Guaranteed Security or as otherwise set forth in this
Indenture.
(c) The
Guarantor shall be subrogated to all rights of the Holder of such Guaranteed
Security and the Trustee for the Securities of such series against the Company
in respect of any amounts paid to such Holder by the Guarantor pursuant to the
provisions of this Guarantee; provided,
however, that
the Guarantor shall not be entitled to enforce or to receive any payments
arising out of or based upon such right of subrogation until the principal of,
premium, if any, and interest on all Securities of the same series issued under
the Indenture shall have been paid in full.
The
Guarantees to be endorsed on the Guaranteed Securities of each series shall
include the terms of the guarantees set forth in Section 1301 and any other
terms that may be set forth in the form established pursuant to Section 206 with
respect to such series. The Guarantor hereby agrees to execute the Guarantees,
in a form established pursuant to Section 206, to be endorsed on each Guaranteed
Security authenticated and delivered by the Trustee for the Securities of such
series.
The
Guarantees shall be executed in accordance with Section 303. The delivery of any
Guaranteed Security by the Trustee for the Securities of such series, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
endorsed thereon on behalf of the Guarantor. The Guarantor hereby agrees that
its Guarantee set forth in Section 1301 shall remain in full force and effect
notwithstanding any failure to endorse a Guarantee on any Guaranteed
Security.
77
The
Guarantor shall give prompt written notice to the Trustee for the Securities of
such series of any fact known to the Guarantor which prohibits the making of any
payment to or by such Trustee in respect of the Guarantee pursuant to the
provisions of this Article Thirteen other than any agreement in effect on the
date hereof.
The
failure to make a payment on account of principal of, premium, if any, or
interest on the Guaranteed Securities by reason of any provision of this Article
will not be construed as preventing the occurrence of an Event of
Default.
No
amendment, modification or waiver of any provision of this Indenture relating to
the Guarantor or consent to any departure by the Guarantor or any other person
from any such provision will in any event be effective unless it is signed by
the Guarantor and the Trustee for the Securities of such series.
The
obligations of the Guarantor hereunder will be limited to the maximum amount, as
will not result in the obligations of the Guarantor under the Guarantee
constituting a fraudulent conveyance or fraudulent transfer, after giving effect
to all other relevant liabilities of the Guarantor.
78
[Seal]
|
XXXXXXXXX-XXXX
COMPANY LIMITED, as the Company
| |
Attest:
/s/ Xxxxxxx X. Xxxxxxx
|
By: |
/s/
Xxxxxxx X. XxXxxxxx
Title: Senior Vice President & Chief
Financial Officer |
Attest:
/s/ Xxxxxxx X. Xxxxxxx
|
By: |
/s/
Xxxxxxx X. Xxxxxxx
Title:
Vice President and Treasurer |
[Seal]
|
XXXXXXXXX-XXXX
COMPANY, as the Guarantor
| |
Attest:
/s/ Xxxxxxx X. Xxxxxxx
|
By: |
/s/
Xxxxxxx X. XxXxxxxx
Title:
Senior Vice President & Chief Financial Officer
|
Attest:
/s/ Xxxxxxx X. Xxxxxxx
|
By: |
/s/
Xxxxxxx X. Xxxxxxx
Title:
Vice President and Treasurer
|
[Seal]
|
XXXXX
FARGO BANK, N.A., as Trustee | |
Attest:/s/
Xxxxxx Xxxxx
|
By: |
/s/
Xxxxxx X. Xxxxxxxxxxx
Title:
Vice President
|
State of
North Carolina )
) ss.:
County of
Mecklenburg )
On the
19th day of May, 2005 before me personally came Xxxxxxx X. XxXxxxxx, to me
known, who, being by me duly sworn, did depose and say that he is Senior Vice
President and Chief Financial Officer of Xxxxxxxxx-Xxxx Company Limited, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation and that he signed his name thereto by like
authority.
Xxxxxx X.
Xxxxxxx
My
commission expires March 6, 0000
Xxxxx xx
Xxxxx Xxxxxxxx )
) ss.:
County of
Mecklenburg )
On the
19th day of May, 2005 before me personally came Xxxxxxx X. Xxxxxxx, to me known,
who, being by me duly sworn, did depose and say that she is Vice President and
Treasurer of Xxxxxxxxx-Xxxx Company Limited, one of the corporations described
in and which executed the foregoing instrument; that she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation and that she signed her name thereto by like authority.
Xxxxxx X.
Xxxxxxx
My commission expires
March 6, 0000
Xxxxx xx
Xxxxx Xxxxxxxx )
) ss.:
County of
Mecklenburg )
On the
19th day of May, 2005 before me personally came Xxxxxxx X. XxXxxxxx, to me
known, who, being by me duly sworn, did depose and say that he is Senior Vice
President and Chief Financial Officer of Xxxxxxxxx-Xxxx Company, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation and that he signed his or her name thereto by like
authority.
Xxxxxx X.
Xxxxxxx
My
commission expires March 6, 2008
2
State of
North Carolina )
) ss.:
County of
Mecklenburg )
On the
19th day of May, 2005 before me personally came Xxxxxxx X. Xxxxxxx, to me known,
who, being by me duly sworn, did depose and say that she is Vice President and
Treasurer of Xxxxxxxxx-Xxxx Company, one of the corporations described in and
which executed the foregoing instrument; that she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation and that she signed her name thereto by like authority.
My
commission expires March 6, 2008
3
State of
Maryland )
) ss.:
City of
Baltimore )
On the
24th day of May, 2005 before me personally came Xxxxxx X. Xxxxxxxxxxx, to me
known, who, being by me duly sworn, did depose and say that he is Vice President
of Xxxxx Fargo Bank, N.A., one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his or her name thereto by like authority.
Xxxxxxx
Xxxxxx Xxxxxx
Notary
Public
Baltimore
City
Maryland
My
Commission Expires June 14, 2006