Exhibit 4.1
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DC HOLDCO, INC.
THE XXXX DISNEY COMPANY
AS GUARANTOR
SENIOR DEBT SECURITIES
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INDENTURE
DATED AS OF
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TRUSTEE
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CROSS REFERENCE TABLE(1)
TIA INDENTURE
SECTION SECTION
310 (a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8; 7.10
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8; 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13.3
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6; 13.2
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2; 13.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13.4
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13.4
(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.5
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5; 13.2
315 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.11
316 (a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
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(1) Note: This Cross Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
TIA INDENTURE
SECTION SECTION
317 (a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13.1
TABLE OF CONTENTS(2)
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 OTHER DEFINITIONS . . . . . . . . . . . . . . . . . . . 6
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. . . . . 6
SECTION 1.4 RULES OF CONSTRUCTION. . . . . . . . . . . . . . . . . . . 7
ARTICLE II
THE SECURITIES
SECTION 2.1 FORMS GENERALLY. . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.2 SECURITIES IN GLOBAL FORM. . . . . . . . . . . . . . . . . 8
SECTION 2.3 TITLE, TERMS AND DENOMINATIONS . . . . . . . . . . . . . . 9
SECTION 2.4 EXECUTION, AUTHENTICATION, DELIVERY AND DATINg . . . . . .12
SECTION 2.5 REGISTRAR AND PAYING AGENT . . . . . . . . . . . . . . . .15
SECTION 2.6 PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST . . . .16
SECTION 2.7 SECURITYHOLDER LISTS . . . . . . . . . . . . . . . . . . .16
SECTION 2.8 TRANSFER AND EXCHANGE. . . . . . . . . . . . . . . . . . .16
SECTION 2.9 REPLACEMENT SECURITIES AND COUPONS . . . . . . . . . . . .16
SECTION 2.10 OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS' ACTION 20
SECTION 2.11 TEMPORARY SECURITIES. . . . . . . . . . . . . . . . . . . 21
SECTION 2.12 CANCELLATION. . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.13 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. . . . . . 24
SECTION 2.14 PERSONS DEEMED OWNERS . . . . . . . . . . . . . . . . . . 26
SECTION 2.15 COMPUTATION OF INTEREST . . . . . . . . . . . . . . . . . 26
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(2) Note: This Table of Contents shall not, for any reason, be deemed to be
part of the Indenture.
i
ARTICLE III
REDEMPTION
SECTION 3.1 RIGHT TO REDEEM; NOTICES TO TRUSTEE. . . . . . . . . . . .27
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED . . . . . . . . . .27
SECTION 3.3 NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . .27
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION . . . . . . . . . . . . . .28
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . .29
SECTION 3.6 SECURITIES REDEEMED IN PART. . . . . . . . . . . . . . . .29
ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF SECURITIES. . . . . . . . . . . . . . . . . . .30
SECTION 4.2 SEC REPORTS. . . . . . . . . . . . . . . . . . . . . . . .30
SECTION 4.3 COMPLIANCE CERTIFICATE . . . . . . . . . . . . . . . . . .30
SECTION 4.4 FURTHER INSTRUMENTS AND ACTS . . . . . . . . . . . . . . .30
SECTION 4.5 MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . .30
SECTION 4.6 ADDITIONAL AMOUNTS . . . . . . . . . . . . . . . . . . . .30
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY MAY MERGE OR TRANSFER ASSETS. . . . . . . . .33
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . .34
SECTION 6.2 ACCELERATION . . . . . . . . . . . . . . . . . . . . . . .36
SECTION 6.3 OTHER REMEDIES . . . . . . . . . . . . . . . . . . . . . .36
SECTION 6.4 WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . . . .36
SECTION 6.5 CONTROL BY MAJORITY. . . . . . . . . . . . . . . . . . . .37
SECTION 6.6 LIMITATION ON SUITS. . . . . . . . . . . . . . . . . . . .37
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT . . . . . . . . . . .37
SECTION 6.8 COLLECTION SUIT BY TRUSTEE . . . . . . . . . . . . . . . .38
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . . . . . . . .38
SECTION 6.10 PRIORITIES . . . . . . . . . . . . . . . . . . . . . . . .39
ii
PAGE
SECTION 6.11 UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . . . .39
SECTION 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS. . . . . . . . . .39
ARTICLE VII
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE. . . . . . . . . . . . . . . . . . . . .40
SECTION 7.2 RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . . . . . .41
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE, ETC. . . . . . . . . . . . .41
SECTION 7.4 TRUSTEE'S DISCLAIMER . . . . . . . . . . . . . . . . . . .41
SECTION 7.5 NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . . . . .42
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS. . . . . . . . . . . . . . .42
SECTION 7.7 COMPENSATION AND INDEMNITY . . . . . . . . . . . . . . . .42
SECTION 7.8 REPLACEMENT OF TRUSTEE . . . . . . . . . . . . . . . . . .43
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER. . . . . . . . . . . . . . . .45
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION. . . . . . . . . . . . . . .45
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. . . . .45
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 DISCHARGE OF LIABILITY ON SECURITIES . . . . . . . . . . .45
SECTION 8.2 REPAYMENT TO THE COMPANY . . . . . . . . . . . . . . . . .46
SECTION 8.3 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE . . . .46
SECTION 8.4 DEFEASANCE AND DISCHARGE . . . . . . . . . . . . . . . . .46
SECTION 8.5 COVENANT DEFEASANCE. . . . . . . . . . . . . . . . . . . .46
SECTION 8.6 CONDITIONS TO DEFEASANCE AND COVENANT DEFEASANCE . . . . .47
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS . . . .48
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. . . . . .49
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT. . . . . . . . . . . .50
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS . .50
SECTION 9.5 NOTATION ON OR EXCHANGE OF SECURITIES. . . . . . . . . . .51
iii
PAGE
SECTION 9.6 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. . . . . . . . . .51
SECTION 9.7 EFFECT OF SUPPLEMENTAL INDENTURES. . . . . . . . . . . . .51
ARTICLE X
SINKING FUNDS
SECTION 10.1 APPLICABILITY OF ARTICLE. . . . . . . . . . . . . . . . . . . .51
SECTION 10.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES . . . . .52
SECTION 10.3 REDEMPTION OF SECURITIES FOR SINKING FUND . . . . . . . . . . .52
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
SECTION 11.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED . . . . . . . . . . .52
SECTION 11.2 CALL, NOTICE AND PLACE OF MEETINGS. . . . . . . . . . . . . . .53
SECTION 11.3 PERSONS ENTITLED TO VOTE AT MEETINGS. . . . . . . . . . . . . .53
SECTION 11.4 QUORUM; ACTION. . . . . . . . . . . . . . . . . . . . . . . . .53
SECTION 11.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS . . . . . . . . . . . . . . . . . . .54
SECTION 11.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.. . . . . . . 55
SECTION 11.7 ACTIONS OF HOLDERS GENERALLY. . . . . . . . . . . . . . . . . .55
ARTICLE XII
GUARANTY
SECTION 12.1 GUARANTY. . . . . . . . . . . . . . . . . . . . . . . . . . . .57
SECTION 12.2 EXECUTION AND DELIVERY OF THE GUARANTY. . . . . . . . . . . . .58
SECTION 12.3 TERMINATION OF THE GUARANTY . . . . . . . . . . . . . . . . . .59
ARTICLE XIV
MISCELLANEOUS
SECTION 13.1 TRUST INDENTURE ACT CONTROLS. . . . . . . . . . . . . . . . . .59
SECTION 13.2 NOTICES.. . . . . . . . . . . . . . . . . . . . . . . . . . . .59
SECTION 13.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS . . . . . . . . . .61
iv
PAGE
SECTION 13.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. . . . . . .61
SECTION 13.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION . . . . . . . . .61
SECTION 13.6 SEPARABILITY CLAUSE . . . . . . . . . . . . . . . . . . . . . .62
SECTION 13.7 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. . . . . . . . . .62
SECTION 13.8 LEGAL HOLIDAYS. . . . . . . . . . . . . . . . . . . . . . . . .62
SECTION 13.9 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . .63
SECTION 13.10 NO RECOURSE AGAINST OTHERS. . . . . . . . . . . . . . . . . . .63
SECTION 13.11 SUCCESSORS. . . . . . . . . . . . . . . . . . . . . . . . . . .63
SECTION 13.12 EFFECT OF HEADINGS AND TABLE OF CONTENTS. . . . . . . . . . . .63
SECTION 13.13 BENEFITS OF INDENTURE . . . . . . . . . . . . . . . . . . . . .63
SECTION 13.14 MULTIPLE ORIGINALS. . . . . . . . . . . . . . . . . . . . . . .63
EXHIBIT A
FORM OF GUARANTY 66
V
INDENTURE dated as of , by and among DC Holdco, Inc., a Delaware
corporation ("COMPANY"), The Xxxx Disney Company, a Delaware corporation, as
guarantor (the "GUARANTOR"), and , as trustee ("TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured deben-
tures, 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 is a wholly owned subsidiary of the Guarantor.
The Guarantor has entered into an Amended and Restated Agreement and
Plan of Reorganization dated as of July 31, 1995 (the "Reorganization
Agreement") whereby Capital Cities/ABC, Inc., a New York corporation ("Capital
Cities") will become a Subsidiary of the Company (the "Acquisition"). The
Acquisition may be accomplished pursuant to the Reorganization Agreement or
other instruments effecting the business combination between the Guarantor and
Capital Cities.
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
ratable benefit of the Holders of the Securities or each series thereof as
follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS
"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 or cause the direction of 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 mean-
ings correlative to the foregoing.
"AUTHORIZED NEWSPAPER" means a newspaper, in the English language or, at
the option of the Company, in an official language of the country of publica-
tion, customarily published on each Business Day, whether or not published on
Saturdays, Sundays or
holidays, and of general circulation in the place in connection with which the
term is used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different Authorized Newspapers
meeting the foregoing requirements and in each case on any Business Day.
"BEARER SECURITY" means any Security in the form (to the extent applicable
thereto) established pursuant to Section 2.1 which is payable to the bearer.
"BOARD OF DIRECTORS" means either the board of directors of the Company or
any committee of such board authorized with respect to any matter to exercise
the powers of the Board of Directors of the Company.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY" means, except as otherwise specified as contemplated by
Section 2.3(a), with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Securities, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or other location are authorized or
obligated by law or executive order to close.
"CAPITAL STOCK" for any corporation means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock issued by that corporation.
"CASH" means such coin or currency of the United States as at any time of
payment is legal tender for the payment of public and private debts.
"CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres SA.
"COMPANY" means the party named as the "COMPANY" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company or the Guarantor, as the case may be, by its
Chairman of the Board, a Vice Chairman, its President or a Vice President, and
by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee or, with respect to Sections 2.4, 2.8,
2.11 and 7.2, any other employee of the Company or the Guarantor, as the case
may be, named in an Officers' Certificate delivered to the Trustee.
2
"COUPON" means any interest coupon appertaining to a Bearer Security.
"DEFAULT" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"DEPOSITARY" means, with respect to the Securities of any series issuable
or issued in whole or in part in global form, the Person specified as
contemplated by Section 2.3(a) as the Depositary with respect to such series of
Securities, until a successor shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "DEPOSITARY" shall mean or include
such successor.
"DISCOUNT SECURITY" means any Security which provides for an amount less
than the Principal Amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 6.2.
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"EURO-CLEAR" means the operator of the Euro-clear System.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GUARANTY" has the meaning set forth in Article XII.
"HOLDER" or "SECURITYHOLDER," when used with respect to any Security,
means, in the case of a Registered Security, a person in whose name a Security
is registered on the Registrar's books and, in the case of a Bearer Security,
the bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
"INDENTURE" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof and shall include the terms of a
particular series of Securities established as contemplated in Section 2.3(a).
"INTEREST," when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
"INTEREST PAYMENT DATE," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"MATURITY," when used with respect to any Security, means the date on which
the Principal of such Security or an installment of Principal or, in the case of
a Discount Security, the Principal Amount payable upon a declaration of
acceleration pursuant to Section 6.2, becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of accelera-
tion, call for redemption or otherwise.
3
"OFFICER" means the Chairman of the Board, any Vice Chairman, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a written certificate containing the informa-
tion specified in Sections 13.4 and 13.5, signed in the name of the Company
or the Guarantor, as the case may be, by its Chairman of the Board, a Vice
Chairman, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"OPINION OF COUNSEL" means a written opinion containing the information
specified in Sections 13.4 and 13.5, from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of, or counsel to, the Company, the
Guarantor or the Trustee.
"PERIODIC OFFERING" means an offering of Securities of a series from time
to time the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the Stated Maturity or
Maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section
2.3(a) with respect thereto, are to be determined by the Company, or one or more
of the Company's agents designated in an Officers' Certificate, upon the
issuance of such Securities.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, or govern-
ment or any agency or political subdivision thereof.
"PLACE OF PAYMENT," when used with respect to the Securities of any series,
means the place or places where, subject to the provisions of Section 4.5, the
Principal of and any interest on the Securities of that series are payable as
specified as contemplated by Section 2.3(a).
"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 2.9 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a mutilat-
ed, destroyed, lost or stolen coupon appertains shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security or the Security
to which the mutilated, destroyed, lost or stolen coupon appertains, as the case
may be.
"PRINCIPAL" or "PRINCIPAL AMOUNT" of a Security, except as otherwise
specifically provided in this Indenture, means the outstanding principal of the
Security plus the premium, if any, of the Security.
4
"REDEMPTION DATE" or "REDEMPTION DATE," when used with respect to any
Security to be redeemed, shall mean the date specified for redemption of such
Security in accordance with the terms of such Security and this Indenture.
"REDEMPTION PRICE" or "REDEMPTION PRICE," when used with respect to any
Security to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"REGISTERED SECURITY" means any Security in the form (to the extent
applicable thereto) established pursuant to Section 2.1 which is registered on
the books of the Registrar.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 2.3(a).
"SEC" means the Securities and Exchange Commission.
"SECURITIES" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"SECURITYHOLDER" or "HOLDER," when used with respect to any Security, means
in the case of a Registered Security, a person in whose name a Security is
registered on the Registrar's books and in the case of a Bearer Security the
bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Registered Securities of any issue means a date fixed by the Trustee pursuant to
Section 2.13.
"STATED MATURITY," when used with respect to any Security or any install-
ment of Principal thereof or interest thereon, means the date specified in such
Security or a coupon representing such installment of interest as the fixed date
on which an amount equal to the Principal of such Security or an installment of
Principal thereof or interest there on is due and payable.
"SUBSIDIARY" means, with respect to any person, a corporation of which a
majority of the Capital Stock having voting power under ordinary circumstances
to elect a majority of the board of directors of such corporation is owned by
(i) such person, (ii) such person and one or more Subsidiaries or (iii) one or
more Subsidiaries of such person.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, except as provided in Section 9.3.
5
"TRUST OFFICER" means any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"TRUSTEE" means the party named as the "TRUSTEE" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"UNITED STATES" means the United States of America, its territories, its
possessions (including the Commonwealth of Puerto Rico), and other areas subject
to its jurisdiction.
"UNITED STATES ALIEN" means any person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
SECTION 1.2 OTHER DEFINITIONS
Defined in
Term Section
--------------- ----------
"BANKRUPTCY LAW" 6.1
"CUSTODIAN" 6.1
"DEFAULTED INTEREST" 2.13
"EVENT OF DEFAULT" 6.1
"EXCHANGE DATE" 2.11
"LEGAL HOLIDAY" 13.8
"NOTICE OF DEFAULT " 6.1
"OUTSTANDING" 2.10
"PAYING AGENT" 2.5
"REGISTRAR" 2.5
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. The following TIA terms used in
this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
6
"INDENTURE SECURITY HOLDER" means a Holder or Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.4 RULES OF CONSTRUCTION. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it
in accordance with generally accepted accounting principles in the United States
as in effect from time to time;
(3) "OR" is not exclusive;
(4) "INCLUDING" means including, without limitation; and
(5) words in the singular include the plural, and words in the plural
include the singular.
ARTICLE II
THE SECURITIES
SECTION 2.1 FORMS GENERALLY. The Registered Securities, if any, of each
series and the Bearer Securities, if any, of each series and related coupons
shall be in substantially such form (including global form) as shall be
established by delivery to the Trustee of an Officers' Certificate or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may, consis-
tently herewith, be determined by the Officers executing such Securities or
coupons as evidenced by their execution of the Securities or coupons. The
Officers' Certificate so establishing the form of Security or coupons, if any,
of any series shall be delivered to
7
the Trustee at or prior to the delivery of the Company Order contemplated by
Section 2.4 for the authentication and delivery of such Securities or coupons.
Unless otherwise specified as contemplated by Section 2.3(a), Bearer
Securities shall have interest coupons attached.
The permanent Securities and coupons, if any, shall be printed, litho-
graphed or engraved or produced by any combination of these methods or may be
produced in any other manner, PROVIDED, that such method is permitted by the
rules of any securities exchange on which such Securities may be listed, all as
determined by the Officers executing such Securities as evidenced by their
execution of such Securities.
SECTION 2.2 SECURITIES IN GLOBAL FORM. If Securities of a series are
issuable in temporary or permanent global form, as specified as contemplated by
Section 2.3(a), then, notwithstanding clause (10) of Section 2.3(a) and the
provisions of Section 2.3(b), any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount
of any increase or decrease in the amount of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such person or persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 2.4 or Section 2.11. Subject
to the provisions of Section 2.4 and, if applicable, Section 2.11, the Trustee
shall deliver and redeliver any Security in global form in the manner and upon
instructions given by the person or persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 2.4 or 2.11
has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 13.4 or 13.5 and need not
be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 2.4 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company, and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 13.4 or 13.5 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the Principal Amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 2.4.
Notwithstanding the provisions of Sections 2.1 and 2.13, unless otherwise
specified as contemplated by Section 2.3(a), payment of Principal of and any
interest on any Security in global form shall be made to the person or persons
specified therein.
8
SECTION 2.3 TITLE, TERMS AND DENOMINATIONS
(a) The aggregate Principal Amount of Securities which may be authenticated
and delivered under this Indenture shall be unlimited.
The Securities may be issued in one or more series. There shall be
established and, subject to Section 2.4, set forth, or determined in the manner
provided, in an Officers' Certificate of the Company (and, if any covenants,
agreements, or Events of Default relating to the Guarantor, or any provisions
of Article XII or any Guaranty, are affected thereby, of the Guarantor), or
established in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate Principal Amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 2.8, 2.9, 2.11, 3.6, 9.5 or 10.3 and except for
any Securities which, pursuant to Section 2.4, are deemed never to have
been authenticated and delivered hereunder);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether any Securities of the series
may be represented initially by a Security in temporary or permanent global
form and, if so, the initial Depositary with respect to any such temporary
or permanent global Security, and if other than as provided in Section 2.8
or Section 2.11, as applicable, whether and the circumstances under which
beneficial owners of interests in any such temporary or permanent global
Security may exchange such interests for Securities of such series and of
like tenor of any authorized form and denomination;
(4) the person to whom any interest on any Registered Security of the
series shall be payable, if other than the person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, and the person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which (including any certification
requirement and other terms and conditions under which), any interest
payable on a temporary or permanent global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 2.2 and
Section 2.4, as applicable;
9
(5) the date or dates on which the Principal of the Securities of the
series is payable or the method of determination thereof;
(6) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any interest payable on any
Registered Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of Section
4.5, the Principal of and any interest on Securities of the series shall be
payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange and notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provi-
sions or at the option of a Holder thereof, the conditions, if any, giving
rise to such obligation, and the period or periods within which, the price
or prices at which and the terms and conditions upon which Securities of
the series shall be redeemed or purchased, in whole or in part, and any
provisions for the remarketing of such Securities;
(10) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denomination or denominations in which
any Bearer Securities of the series shall be issuable, if other than
denominations of $5,000 and $100,000;
(11) the currency or currencies, including composite currencies, in
which payment of the Principal of and any interest on the Securities of the
series shall be payable if other than the currency of the United States,
and if so, whether the Securities of the series may be satisfied and
discharged other than as provided in Article VIII;
(12) if the amount of payments of principal of and any interest on the
Securities of the series is to be determined with reference to an index,
formula or other method, or based on a coin or currency other than that in
which the
10
Securities are stated to be payable, the manner in which such amounts
shall be determined and the calculation agent, if any, with respect
thereto;
(13) if other than the Principal Amount thereof, the portion of the
Principal Amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 6.2;
(14) if the Company will pay additional amounts on any of the
Securities and coupons, if any, of the series to any Holder who is a United
States Alien (including any modification in the definition of such term),
in respect of any tax, assessment or governmental charge withheld or de-
ducted, under what circumstances and with what procedures and documentation
the Company will pay such additional amounts, whether such additional
amounts will be treated as interest or Principal pursuant to this Inden-
ture, and whether the Company will have the option to redeem such
Securities rather than pay additional amounts (and the terms of any such
option);
(15) if other than as defined in Section 1.1, the meaning of "BUSINESS
DAY" when used with respect to any Securities of the series;
(16) if and the terms and conditions upon which the Securities of the
series may or must be converted into securities of the Company or exchanged
for securities of the Company or another enterprise;
(17) if and the terms and conditions upon which the obligations of the
Company under the Securities of the series are guaranteed in a manner other
than as described in Article XII;
(18) any terms applicable to Original Issue Discount, if any, (as that
term is defined in the Internal Revenue Code of 1986 and the Regulations
thereunder) including the rate or rates at which such Original Issue
Discount, if any, shall accrue;
(19) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security of
such series or otherwise), or any installment of Principal of or any
interest is payable, only upon receipt of certain certificates or other
documents or satisfaction of other conditions in addition to those
specified in this Indenture, the form and terms of such certificates,
documents or conditions; and
(20) other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section
9.1(7)).
11
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except as to
denomination and the rate or rates of interest, if any, and Stated Maturity, the
date from which interest, if any, shall accrue and except as may otherwise be
provided in or pursuant to an Officers' Certificate pursuant to this Section
2.3(a) or in any indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and, unless otherwise provided, a
series may be reopened for issuances of additional Securities of such series or
for the establishment of additional terms with respect to the Securities of such
series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of any appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series. With respect to Securities
of a series subject to a Periodic Offering, such Board Resolution or Officers'
Certificate may provide general terms for Securities of such series and provide
either that the specific terms of particular Securities of such series shall be
specified in a Company Order or that such terms shall be determined by the
Company, or one or more of the Company's agents designated in an Officers'
Certificate, in accordance with the Company Order as contemplated by the first
proviso of the third paragraph of Section 2.4.
(b) Unless otherwise provided as contemplated by Section 2.3(a) with
respect to any series of Securities, any Registered Securities of a series shall
be issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in denominations of $5,000 and
$100,000.
SECTION 2.4. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The Securities
shall be executed on behalf of the Company by its Chairman of the Board, one of
its Vice Chairmen, its President or one of its Vice Presidents, or the Treasurer
or any Assistant Treasurer, under its corporate seal reproduced thereon attested
by its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile. Coupons shall bear
the facsimile signature of the Treasurer or any Assistant Treasurer of the
Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series together with any
coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together
12
with a Company Order for the authentication and delivery of such Securities; and
the Trustee in accordance with such Company Order shall authenticate and deliver
such Securities; PROVIDED, HOWEVER, that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Company Order may be delivered by the
Company to the Trustee prior to the delivery to the Trustee of such Securities
for authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
Principal Amount not exceeding the aggregate Principal Amount established for
such series, pursuant to a Company Order or pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by a Company
Order, (c) the rate or rates of interest, if any, the Stated Maturity or
Maturities, the original issue date or dates, the redemption provisions, if any,
and any other terms of Securities of such series shall be determined by a
Company Order or pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company, or the Company's
duly authorized agent or agents designated in an Officers' Certificate, which
oral instructions shall be promptly confirmed in writing; and PROVIDED, FURTHER,
that, in connection with its original issuance, no Bearer Security or coupon
shall be mailed or otherwise delivered to any person who is not a United States
Alien or to any location in the United States. Except as permitted by Section
2.9, the Trustee shall not authenticate and deliver any Bearer Security unless
all appurtenant coupons for interest then matured have been detached and
cancelled.
If the forms or terms of the Securities of the series and any related
coupons have been established in or pursuant to one or more Officers' Certifi-
xxxxx as permitted by Sections 2.1 and 2.3(a), in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 7.1) shall be fully protected in relying upon, an Opinion of
Counsel stating:
(a) that the form and terms of such Securities and any coupons have been
duly authorized by the Company and established in conformity with the provisions
of this Indenture; and
(b) that such Securities, together with any coupons appertaining thereto,
when authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to customary exceptions;
PROVIDED, HOWEVER, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
13
(x) that the forms of such Securities have been, and the terms of such
Securities (when established in accordance with such procedures as may be
specified from time to time in a Company Order, all as contemplated by and
in accordance with a Board Resolution or an Officers' Certificate pursuant
to Section 2.3(a), as the case may be) will have been, duly authorized by
the Company and established in conformity with the provisions of this
Indenture; and
(y) that such Securities, together with the coupons, if any, apper-
taining thereto, when (1) executed by the Company, (2) completed,
authenticated and delivered by the Trustee in accordance with this Inden-
ture, and (3) issued by the Company in the manner and subject to any con-
ditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to customary exceptions.
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and other docu-
ments delivered pursuant to Sections 2.1 and 2.3(a) and this Section, as
applicable, at or prior to the time of the first authentication of Securities of
such series unless and until it has received written notification that such
opinion or other documents have been superseded or revoked. In connection with
the authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume, unless it has actual
knowledge to the contrary, that the Company's instructions to authenticate and
deliver such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the Company.
Notwithstanding the provisions of Section 2.3(a) and of the preceding three
paragraphs, if all Securities of a series are subject to a Periodic Offering, it
shall not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 2.3(a) at or prior to the time of authentication of each
Security of such series if such Officers' Certificate is delivered at or prior
to the authentication upon original issuance of the first Security of such
series to be issued.
Each Registered Security shall be dated the date of its authentication;
and, unless otherwise specified as contemplated by Section 2.3(a), each Bearer
Security (including a Bearer Security represented by a temporary global
Security) shall be dated as of the date of original issuance of the first
Security of such series to be issued.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent.
14
No Security or coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized signatory, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. The Trustee's certificate of authentication shall be in substan-
tially the following form:
This is one of the Securities of the series designated therein re-
ferred to in the within-mentioned Indenture.
, as Trustee
By:
------------------------------------------
Authorized Officer
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.12 together with a written statement (which need not
comply with Section 12.4 or 12.5 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 2.5 REGISTRAR AND PAYING AGENT. The Company shall maintain, with
respect to each series of Securities, an office or agency where such Securities
may be presented for registration of transfer or for exchange ("REGISTRAR") and
an office or agency where such Securities may be presented for purchase or
payment ("PAYING AGENT"). The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Company may have one or more co-
registrars and one or more additional paying agents. The term Paying Agent
includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with respect
to each series of Securities with any Registrar, Paying Agent or co-registrar
(if not the Trustee). The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of
the name and address of any such agent. If the Company fails to maintain a
Registrar or Paying Agent for a particular series of Securities, the Trustee
shall act as such and shall be entitled to appropriate
15
compensation therefor pursuant to Section 7.7. The Company or any Subsidiary or
an Affiliate of either of them may act as Paying Agent, Registrar or co-
registrar.
The Company initially appoints the Trustee as the Registrar and Paying
Agent in connection with such Securities.
SECTION 2.6 PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST. Except as
otherwise provided herein, prior to or on each due date of payments in respect
of any series of Securities, the Company shall deposit with the Paying Agent
with respect to such Securities a sum of money sufficient to make such payments
when so becoming due. The Company shall require each Paying Agent (other than
the Trustee) to agree in writing that the Paying Agent shall hold in trust for
the benefit of Holders or the Trustee all money held by such Paying Agent for
the making of payments in respect of the Securities of such series and shall
notify the Trustee of any default by the Company in making any such payment. At
any time during the continuance of any such default, a Paying Agent shall, upon
the written request of the Trustee, forthwith pay to the Trustee all money so
held in trust with respect to such Securities. If the Company, a Subsidiary or
an Affiliate of either of them acts as Paying Agent for a series of Securities,
it shall segregate the money held by it as Paying Agent with respect to such
Securities and hold it as a separate trust fund. The Company at any time may
require a Paying Agent for a series of Securities to pay all money held by it
with respect to such Securities to the Trustee and to account for any money
disbursed by it. Upon doing so, such Paying Agent shall have no further
liability for the money.
SECTION 2.7 SECURITYHOLDER LISTS. The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders of each series of Securities. If the Trustee is
not the Registrar for any series of Securities, the Company shall cause to be
furnished to the Trustee at least semiannually on June 1 and December 1 a
listing of Holders of such series of Securities dated within 15 days of the date
on which the list is furnished and at such other times as the Trustee may re-
quest in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Securityholders of such series
of Securities.
SECTION 2.8 TRANSFER AND EXCHANGE. Upon surrender for registration of
transfer of any Security at the office or agency of the Company designated
pursuant to Section 4.5 for such purpose in a Place of Payment, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations of a like aggregate Principal Amount
and tenor. The Company shall not charge a service charge for any registration
of transfer or exchange, but the Company may require payment of a sum sufficient
to pay all taxes, assessments or other governmental charges that may be imposed
in connection with the transfer or exchange of the Securities from the
16
Securityholder requesting such transfer or exchange (other than any exchange of
a temporary Security for a definitive Security not involving any change in
ownership or any exchange pursuant to Section 2.11, 3.6, 9.5 or 10.3, not
involving any transfer).
Notwithstanding any other provisions (other than the provisions set forth
in the sixth and seventh paragraphs) of this Section, a Security in global form
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
At the option of the Holder, Registered Securities of any series may be ex-
changed for other Registered Securities of the same series of any authorized
denomination or denominations, of a like aggregate Principal Amount and tenor,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. Bearer Securities may
not be issued in exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any series may be ex-
changed for Registered Securities of the same series of any authorized denomina-
tion or denominations and of a like aggregate Principal Amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured coupons and all matured coupons in default thereto appertain-
ing. If the Holder of a Bearer Security is unable to produce any such unmatured
coupon or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company and the Trustee in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; PROVIDED, HOWEVER, that, except as otherwise provided in Section
4.5, interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be
17
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee or a duly appointed authenticating agent shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the Securi-
ties of such series, the Company shall appoint a successor Depositary with
respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company within 90 days after
the Company receives such notice, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive form in an aggregate Principal Amount equal to the
Principal Amount of the Security or Securities in global form representing such
series in exchange for such Security or Securities in global form.
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, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver Securities of such series in definitive form and
in an aggregate Principal Amount equal to the Principal Amount of the Security
or Securities in global form representing such series in exchange for such
Security or Securities in global form.
Notwithstanding the foregoing, except as otherwise specified in the
preceding two paragraphs or as contemplated by Section 2.3(a), any permanent
global Security shall be exchangeable only as provided in this paragraph. If
the beneficial owners of interests in a permanent global Security are entitled
to exchange such interests for definitive Securities of such series and of like
Principal Amount and tenor but of another authorized form and denomination, as
specified as contemplated by Section 2.3(a), then without unnecessary delay but
in any event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities in
aggregate Principal Amount equal to the Principal Amount of such permanent
global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security shall
be surrendered by the Depositary with respect thereto to the Trustee, as the
Company's agent for such purpose, to be
18
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such permanent global Security, an equal aggregate Principal
Amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such permanent global Security to be
exchanged which, unless the Securities of the series are not issuable both as
Bearer Securities and as Registered Securities, as specified as contemplated by
Section 2.3(a), shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof; PROVIDED, HOWEVER, that notwithstanding the last paragraph of
this Section 2.8, no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities of that series to
be redeemed and ending on the relevant Redemption Date; and PROVIDED, FURTHER,
that in connection with its original issuance, no Bearer Security or coupon
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any person that is not a United States Alien or
to any location in the United States. If a Registered Security is issued in
exchange for any portion of a permanent global Security after the close of
business at the office or agency where such exchange occurs on (i) any Regular
Record Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and the opening
of business at such office or agency on the related proposed date for payment of
Defaulted Interest, interest or Defaulted Interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
Upon the exchange of a Security in global form for Securities in definitive
form, such Security in global form shall be cancelled by the Trustee.
Registered Securities issued in exchange for a Security in global form pursuant
to this Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Registered Securities to
the persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company
19
and the Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending (except as otherwise provided in the first proviso in the
eighth paragraph of this Section 2.8) at the close of business on (A) if
Securities of the Series are issuable only as Registered Securities, the day of
the mailing of the relevant notice of redemption and (B) if Securities of the
series are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption, in whole or in
part, except the unredeemed portion of any Security being redeemed in part, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
SECTION 2.9 REPLACEMENT SECURITIES AND COUPONS. If (a) any mutilated
Security or a Security with a mutilated coupon appertaining thereto is surren-
dered to the Trustee, or (b) the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Security or coupon,
and there is delivered to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security or coupon has been
acquired by a BONA FIDE purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or coupon or in lieu of any such destroyed, lost or
stolen Security or coupon, or in exchange for the Security to which a mutilated,
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
mutilated, destroyed, lost or stolen), a new Security of the same series and of
like tenor and Principal Amount, bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
such destroyed, lost or stolen Security or coupon, or to the Security to which
such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon; PROVIDED,
HOWEVER, that the Principal of and any interest on Bearer Securities shall,
except as otherwise provided in Section 4.5, be payable only at an office or
agency located outside the United States and, unless otherwise specified as
contemplated by Section 2.3(a), any interest on Bearer
20
Securities shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Securities under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Security, or in exchange for a Security
to which a mutilated, destroyed, lost or stolen coupon appertains, shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
any such new Security and coupons, if any, shall be entitled to all benefits of
this Indenture equally and proportionately with any and all other Securities of
that issue and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 2.10 OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS' ACTION.
Securities of any series "OUTSTANDING" at any time are, as of the date of
determination, all the Securities of such series theretofore authenticated by
the Trustee for such series except for those cancelled by it, those delivered to
it for cancellation and those described in this Section 2.10 as not outstanding.
A Security does not cease to be "OUTSTANDING" because the Company or an
Affiliate thereof holds the Security; PROVIDED, HOWEVER, that in determining
whether the Holders of the requisite Principal Amount of Outstanding Securities
have given or concurred in any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor. Subject to the foregoing, only Securities
outstanding at the time of such determination shall be considered in any such
determination (including, without limitation, determinations pursuant to
Articles 6 and 9). In addition, in determining whether the Holders of the
requisite Principal Amount of Outstanding Securities have given or concurred in
any request, demand, authorization, direction,
21
notice, consent or waiver hereunder, (i) the Principal Amount of a Discount
Security that shall be deemed to be Outstanding shall be the amount of the
Principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant to Section 6.2,
(ii) the Principal Amount of a Security denominated in a foreign currency or
currencies shall be the Dollar equivalent, as determined on the date of original
issuance of such Security, of the Principal Amount (or, in the case of a
Discount Security, the Dollar equivalent on the date of original issuance of
such Security of the amount determined as provided in (i) above) of such
Security.
If a Security has been paid pursuant to Section 2.9 or in exchange for or
in lieu of which another Security has been authenticated and delivered pursuant
to this Indenture, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a BONA FIDE purchaser.
If the Trustee (other than the Company) holds, in accordance with this
Indenture, on a Redemption Date or on Stated Maturity, money sufficient to pay
Securities and any coupons thereto appertaining payable on that date, then on
and after that date such Securities shall cease to be outstanding and interest,
if any, on such Securities shall cease to accrue; PROVIDED, that if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made.
SECTION 2.11 TEMPORARY SECURITIES. Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued, in registered form or, if authorized, in bearer form with
one or more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the Officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. Such temporary Securities may be in global form.
Except in the case of Securities represented by a temporary global Security
(which shall be exchanged in accordance with the provisions of the three
succeeding paragraphs), if temporary Securities for some or all of the
Securities of any series are issued, the Company will cause definitive
Securities representing such Securities to be prepared without unreasonable
delay. After the preparation of such definitive Securities, the temporary
Securities shall be exchangeable for such definitive Securities of like tenor
upon surrender of the temporary Securities at the office or agency of the
Company designated for such purpose pursuant to Section 4.5 in a Place of
Payment for such series for the purpose of exchanges of Securities of such
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series
22
(accompanied by any unmatured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like Principal Amount of definitive Securities of the same series and of like
tenor of authorized denominations; PROVIDED, HOWEVER, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security.
Until so exchanged the temporary Securities shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities.
Unless otherwise specified as contemplated by Section 2.3(a), if Bearer
Securities of any series are represented by a Security in temporary global form,
any such temporary global Security shall be delivered to the Depositary for the
benefit of Euro-clear and Cedel S.A., for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date speci-
fied in, or determined pursuant to the terms of, any such temporary global
Security (the "EXCHANGE DATE"), the Company shall deliver to the Trustee
permanent Securities of the same series, in aggregate Principal Amount equal to
the Principal Amount of such temporary global Security, executed by the Company.
On or after the Exchange Date, such temporary global Security shall be
surrendered by the Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for permanent
Securities of the same series and of like tenor without charge and the Trustee
shall authenticate and deliver, in exchange for each portion of such temporary
global Security, an equal aggregate Principal Amount of definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such temporary global Security to be exchanged. The permanent Securities to be
delivered in exchange for any such temporary global Security shall be in defini-
tive bearer form or registered form, or shall be represented by a permanent
global Security, or any combination thereof, as specified as contemplated by
Section 2.3(a), and, if any combination thereof is so specified, as requested by
the beneficial owner thereof.
Unless otherwise specified in any such temporary global Security, the
interest of a beneficial owner of Securities of a series represented by such
temporary global Security shall be exchanged for permanent Securities of the
same series and of like tenor following the Exchange Date when the account
holder instructs Euro-clear or Cedel S.A., as the case may be, to request such
exchange on his behalf and delivers to Euro-clear or Cedel S.A., as the case may
be, any certificate specified as contemplated by Section 2.3(a). Unless other-
wise specified in such temporary global Security, any such exchange shall be
made free of charge to the beneficial owners of such temporary global Security,
except that a person receiving permanent Securities must bear the cost of insur-
ance, postage, transportation and the like in the event that such person does
not take delivery of such permanent Securities in person at the offices of Euro-
clear or Cedel S.A.
23
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as permanent Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 2.3(a), interest payable on a temporary global
Security representing a series of Bearer Securities on an Interest Payment Date
for Securities of such series occurring prior to the applicable Exchange Date
shall be payable to Euro-clear and Cedel S.A. on such Interest Payment Date,
upon delivery by Euro-clear and Cedel S.A. to the Trustee of any certificate
specified as contemplated by Section 2.3(a), for credit without further interest
on or after such Interest Payment Date to the respective accounts of the persons
who are the beneficial owners of such temporary global Security on such Interest
Payment Date and who have each delivered to Euro-clear or Cedel S.A., as the
case may be, any certificate specified as contemplated by Section 2.3(a).
SECTION 2.12 CANCELLATION. All Securities or coupons surrendered for
payment, redemption, registration of transfer or exchange, or for credit against
any sinking fund payment, shall, if surrendered to any person other than the
Trustee, be delivered to the Trustee and all Registered Securities and matured
coupons so delivered shall be promptly cancelled by it. All Bearer Securities
and unmatured coupons so delivered shall be held by the Trustee and, upon
instruction by a Company Order, shall be cancelled or held for reissuance.
Bearer Securities and unmatured coupons held for reissuance may be reissued only
in replacement of mutilated, lost, stolen or destroyed Bearer Securities of the
same series and like tenor or the related coupons pursuant to Section 2.9. All
Bearer Securities and unmatured coupons held by the Trustee pending such
cancellation or reissuance shall be deemed to be delivered for cancellation for
all purposes of this Indenture and the Securities. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever (including Securities received by the Company in exchange or payment
for other Securities of the Company) and may deliver to the Trustee (or to any
other person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. The
Company may not reissue, or issue new Securities to replace, Securities it has
paid or delivered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted in the form of Securities for any
particular series or as permitted by this Indenture. All cancelled Securities
and coupons held by the Trustee shall be destroyed by the Trustee and evidence
of their destruction delivered to the Company unless the Company directs by
Company Order that the Trustee deliver cancelled Securities to the Company.
SECTION 2.13 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Unless
otherwise provided as contemplated by Section 2.3(a) with respect to any series
of Securities,
24
interest on any Registered Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest. In case
a Bearer Security of any series is surrendered in exchange for a Registered
Security of such series after the close of business (at an office or agency in a
Place of Payment for such series) on any Regular Record Date and before the
opening of business (at such office or agency) on the next succeeding Interest
Payment Date, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date and interest will not be payable on such
Interest Payment Date in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "DEFAULTED INTEREST") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security and the date
of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the persons entitled to such
Defaulted Interest as provided in this Clause. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-
class postage prepaid, to each Holder of Registered Securities at his
address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the persons
in whose names the Securities (or their respective Prede-
25
cessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Registered
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 2.8,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 2.14 PERSONS DEEMED OWNERS. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the person in whose name such
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of Principal of and (except as otherwise speci-
fied as contemplated by Section 2.3(a) and subject to Section 2.8 and Section
2.13) interest on such Registered Security and for all other purposes what-
soever, whether or not such Registered Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Bearer Security or coupon for the purpose
of receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Security
in global form or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
SECTION 2.15 COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 2.3(a) for Securities of any series, (i) interest on any
Securities which bear interest at a fixed rate shall be computed on the basis of
a 360-day year comprised of twelve 30-day months and (ii) interest on any
Securities which bear interest
26
at a variable rate shall be computed on the basis of the actual number of days
in an interest period divided by 360.
ARTICLE III
REDEMPTION
SECTION 3.1 RIGHT TO REDEEM; NOTICES TO TRUSTEE. 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 2.3(a) for Securities of any series) in accordance with this Article.
In the case of any redemption at the election of the Company of less than all
the Securities of any series, the Company shall, within the time period
specified below, notify the Trustee in writing of the Redemption Date, the
Principal Amount of and of any other information necessary to identify the
Securities of such series to be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.1 at least 60 days before the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee).
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED. Unless otherwise
specified as contemplated by Section 2.3(a) with respect to any series of
Securities, if less than all the Securities of any series with the same issue
date, interest rate and Stated Maturity are to be redeemed, the Trustee shall
select the particular Securities to be redeemed by a method the Trustee
considers fair and appropriate, which method may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the Principal
Amount of Registered Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that series. The Trustee
shall make the selection not more than 60 days before the Redemption Date from
Outstanding Securities of such series not previously called for redemption.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly in writing of the Securities to be redeemed and, in the
case of any portions of Securities to be redeemed, the principal amount thereof
to be redeemed.
SECTION 3.3 NOTICE OF REDEMPTION. Unless otherwise specified as
contemplated by Section 2.3(a) with respect to any series of Securities, at
least 30 days but not more than 60 days before a Redemption Date, the Company
shall mail a notice of redemption by first-class mail, postage prepaid, to each
Holder of Securities to be redeemed.
27
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the Principal Amounts) of the particular Securities to be
redeemed;
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security (or portion thereof) to be
redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date;
(5) the place or places where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price; and
(6) that the redemption is for a sinking fund, if such is the
case.
A notice of redemption published as contemplated by Section 13.2 need not
identify particular Registered Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense; PROVIDED,
HOWEVER, that, in all cases, the text of such Company Notice shall be prepared
by the Company.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption
is given, Securities called for redemption become due and payable on the Re-
demption Date and at the Redemption Price stated in the notice, and from and
after such date (unless the Company shall default in the payment of the Redemp-
tion Price and accrued interest) such Securities shall cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 4.5)
and, unless otherwise specified as contemplated by Section 2.3(a), only upon
presentation and surrender of coupons for such interest; and PROVIDED, FURTHER,
that, unless otherwise specified as contemplated by Section 2.3(a), installments
of interest on Registered Securities whose Stated Maturity is on or prior to
28
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Regular Record Dates according to their terms and the provisions of
Sections 2.8 and 2.13.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be fur-
nished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 4.5) and, unless otherwise specified as contemplated by Section 2.3(a),
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE. Prior to or on the Redemption
Date, the Company shall deposit with the Paying Agent (or if the Company or a
Subsidiary or an Affiliate of either of them is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the Redemption Price and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, of all Securities to be redeemed on that date other than Securities
or portions of Securities called for redemption which prior thereto have been
delivered by the Company to the Trustee for cancellation. If such money is then
held by the Company in trust and is not required for such purpose, it shall be
discharged from such trust.
SECTION 3.6 SECURITIES REDEEMED IN PART. Any Registered Security which
is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and upon such surrender, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security a new Registered
Security or Securities of the same series and of like tenor, in an authorized
denomination as requested by such Holder, equal in aggregate Principal Amount to
and in exchange for the unredeemed portion of the Principal of the Security
surrendered.
29
ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF SECURITIES. The Company shall promptly make all
payments in respect of each series of Securities on the dates and in the manner
provided in the Securities and any coupons appertaining thereto and, to the
extent not otherwise so provided, pursuant to this Indenture. An installment of
Principal of or interest on the Securities shall be considered paid on the date
it is due if the Trustee or a Paying Agent (other than the Company or an Affili-
ate of the Company) holds on that date funds (in the currency or currencies of
payment with respect to such Securities) designated for and sufficient to pay
such installment. Unless otherwise specified as contemplated by Section 2.3(a)
with respect to any series of Securities, any interest due on Bearer Securities
on or before Maturity shall be payable only upon presentation and surrender of
the several coupons for such interest installments as are evidenced thereby as
they severally mature. At the Company's option, payments of Principal or
interest may be made by check or by transfer to an account maintained by the
payee subject, in the case of Bearer Securities, to the provisions of Section
4.5.
SECTION 4.2 SEC REPORTS. The Company shall file with the Trustee,
within 15 days after it files such annual and quarterly reports, information,
documents and other reports with the SEC, copies of its annual report and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. The Company also shall comply with the other provisions of TIA
Section 314(a).
So long as any Guaranty is in effect, the Guarantor shall file with
the Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the SEC, copies of its annual
report and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Guarantor is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act.
SECTION 4.3 COMPLIANCE CERTIFICATE. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company (begin-
ning with the fiscal year ending on September 30, 1996) an Officers' Certificate
stating whether or not the signers know of any Default (including without
limitation, with respect to the Guarantor) that occurred during such period.
If they do, such Officers' Certificate shall describe the Default and its
status.
SECTION 4.4 FURTHER INSTRUMENTS AND ACTS. Upon request of the Trustee,
the Company will execute and deliver such further instruments and do such
further acts as
30
may be reasonably necessary or proper to carry out more effectively the purposes
of this Indenture.
SECTION 4.5 MAINTENANCE OF OFFICE OR AGENCY. If Securities of a series
are issuable only as Registered Securities, the Company will maintain in each
Place of Payment for such series an office or agency where Securities of that
series may be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. If Securities of a series are issuable
as Bearer Securities, the Company will maintain (A) in the Borough of Manhattan,
the City of New York, an office or agency where any Registered Securities of
that series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, purchase or redemp-
tion and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related coupons may be presented or surrendered
for payment in the circumstances described in the following paragraph (and not
otherwise), (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Securities of that series and related coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Securities of that series pursuant to Section 4.6), and (C)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The office of the Trustee at
, New York, New York , Attention: shall
be such office or agency for all of the aforesaid purposes unless the Company
shall maintain some other office or agency for such purposes and shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such other office or agency. If at any time the Company shall fail
to maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of Securities of that series may be made and
notices and demands may be made or served at the address of the Trustee set
forth in Section 13.2, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including payment
of any additional amounts payable on Bearer Securities of that series pursuant
to Section 4.6) at the place specified for that purpose as contemplated by
Section 2.3(a) or, if no such place is specified, at the main office of the
Trustee in London, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
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No payment of Principal or interest on Bearer Securities shall be made
at any office or agency of the Company in the United States, by check mailed to
any address in the United States, by transfer to an account located in the
United States or upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be credited to an
account located outside the United States; PROVIDED, HOWEVER, that, if the
Securities of a series are denominated and payable in Dollars, payment of
Principal of and any interest on any such Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section 4.6)
shall be made at the office of the Company's Paying Agent in the Borough of
Manhattan, The City of New York, if (but only if) payment in Dollars of the full
amount of such Principal, interest or additional amounts, as the case may be, at
all offices or agencies outside the United States maintained for such purpose by
the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 4.6 ADDITIONAL AMOUNTS. If specified as contemplated by
Section 2.3(a), the Securities of a series may provide for the payment of
additional amounts, and in such case, the Company will pay to the Holder of any
Security of such series or any coupon appertaining thereto additional amounts as
provided therein. Wherever in this Indenture there is mentioned, in any
context, the payment of the Principal of or any interest on, or in respect of,
any Security of any series or payment of any related coupon, such mention shall
be deemed to include mention of the payment of additional amounts provided for
in this Section to the extent that, in such context, additional amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if applicable)
in any provisions hereof shall not be construed as excluding additional amounts
in those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which payment of Principal is
made), and at least 10 days prior to each date of payment of Principal and any
interest if there has been any change with respect to the matters set forth in
the below-mentioned Officers' Certificate, the Company will furnish the Trustee
32
and the Company's Paying Agent or Paying Agents, if other than the Trustee, with
an Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of Principal of and any interest on the Securities
of that series shall be made to Holders of Securities of that series or any
related coupons who are United States Aliens without withholding for or on ac-
count of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts
required by the Securities of such series and this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY AND GUARANTOR MAY MERGE OR TRANSFER ASSETS.
Neither the Company nor, for so long as the Guaranty is in effect, the Guarantor
shall consolidate with or merge with or into any other person or convey,
transfer or lease its properties and assets substantially as an entirety to any
person, unless:
(a) either (1) the Company or the Guarantor, as the case may be,
shall be the continuing corporation or (2) the person (if other than
the Company or the Guarantor, as the case may be) formed by such
consolidation or into which the Company or the Guarantor is merged or
the person which acquires by conveyance, transfer or lease the
properties and assets of the Company or the Guarantor substantially
as an entirety (i) shall be a corporation, partnership or trust
organized and validly existing under the laws of the United States
or any state thereof or the District of Columbia and (ii) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all of
the obligations of the Company under the Securities and this Indenture
or all of the obligations of Guarantor under the Guaranty and this
Indenture, as the case may be;
(b) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing; and
(c) the Company or the Guarantor, as the case may be, shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and, if a
33
supplemental indenture is required in connection with such transac-
tion, such supplemental indenture, comply with this Article and that
all conditions precedent herein provided for relating to such
transaction have been satisfied.
The successor person formed by such consolidation or into which the
Company or the Guarantor is merged or the successor person to which such con-
veyance, transfer or lease is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company or the Guarantor, as the case
may be, under this Indenture with the same effect as if such successor had been
named as the Company or the Guarantor, as the case may be, herein; and
thereafter, except in the case of a lease of its properties and assets substan-
tially as an entirety, the Company or the Guarantor, as the case may be, shall
be discharged from all obligations and covenants under this Indenture, the
Securities, the Guaranty and coupons. Notwithstanding the foregoing, in the
event the Acquisition does not occur, the Company may consolidate with or merge
into the Guarantor and, upon such consolidation or merger, the Securities and
all obligations thereunder and under the Indenture will thereafter become the
sole obligation of the Guarantor (and will bind the Guarantor as if all
references herein to "the Company" were to the "Guarantor") without any action
on the part of the Guarantor, the Company, the Trustee or any other person (in
such event, any Guarantees previously issued by the Guarantor shall be of no
further force or effect).
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT. Unless otherwise specified as
contemplated by Section 2.3(a) with respect to any series of Securities, an
"EVENT OF DEFAULT" occurs, with respect to each series of the Securities
individually, if:
(1) the Company defaults in (a) the payment of the principal of
any Security of such series at its Maturity or (b) the payment of any
interest upon any Security of such series when the same becomes due
and payable and continuance of such default for a period of 30 days;
(2) the Company or the Guarantor fails to comply with any of its
agreements in the Securities or this Indenture (other than those
referred to in clause (1) above and other than a covenant or warranty
a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has been expressly included
in this Indenture solely for the benefit of a series of Securities
other than such series) and such failure continues for 60 days after
receipt by the Company or the Guarantor of a Notice of Default;
34
(3) there shall have been the entry by a court of competent
jurisdiction of (a) a decree or order for relief in respect of the
Company or the Guarantor in an involuntary case or proceeding under
any applicable Bankruptcy Law or (b) a decree or order adjudging the
Company or the Guarantor, bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company or the Guarantor under any applicable federal
or state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Company or the Guarantor or of any substantial part of its property,
or ordering the wind up or liquidation of its affairs, and any such
decree or order for relief shall continue to be in effect, or any such
other decree or order shall be unstayed and in effect, for a period of
60 consecutive days;
(4) (a) the Company or the Guarantor commences a voluntary case or
proceeding under any applicable Bankruptcy Law or any other case or
proceeding to be adjudicated bankrupt or insolvent, (b) the Company or
the Guarantor consents to the entry of a decree or order for relief in
respect of the Company or the Guarantor in an involuntary case or
proceeding under any applicable Bankruptcy Law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, (c) the
Company or the Guarantor files a petition or answer or consent seeking
reorganization or substantially comparable relief under any applicable
federal state law, (d) the Company or the Guarantor (x) consents to
the filing of such petition or the appointment of, or taking
possession by, a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or the Guarantor or of
any substantial part of its property, (y) makes an assignment for the
benefit of creditors or (z) admits in writing its inability to pay its
debts generally as they become due or (e) the Company or the Guarantor
takes any corporate action in furtherance of any such actions in this
clause (4);
(5) a Guaranty, whether pursuant to Article XII or as provided for
in Section 2.3(a), shall for any reason cease to be, or be asserted in
writing by a responsible officer of the Guarantor not be, in full
force and effect, except to the extent contemplated by the Indenture;
or
(6) any other Event of Default provided with respect to Securities
of that series.
Notwithstanding the foregoing, upon the termination of any
Guaranty pursuant to Article XII, the occurence of an event set forth in
clauses (2) through (6) above with respect to the Guarantor shall not
constitute an Event of Default hereunder.
"BANKRUPTCY LAW" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar Federal or state law for the relief of debtors. "CUSTODIAN" means any
receiver, trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (2) above is not an Event of Default until
the Trustee notifies the Company, or the Holders of at least 25% in aggregate
Principal Amount of the Outstanding Securities of such series notify the Company
and the Trustee, of the
35
Default and the Company does not cure such Default within the time specified in
clause (2) above after receipt of such notice. Any such notice must specify the
Default, demand that it be remedied and state that such notice is a "NOTICE OF
DEFAULT."
SECTION 6.2 ACCELERATION. If an Event of Default with respect to
Securities of any series at the time Outstanding (other than an Event of Default
specified in Section 6.1(3) or (4)) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in aggregate Principal
Amount of the Outstanding Securities of that series by notice to the Company and
the Trustee, may declare the Principal Amount (or, if any of the Securities of
that series are Discount Securities, such portion of the Principal Amount of
such Securities as may be specified in the terms thereof) of all the Securities
of that series to be immediately due and payable. Upon such a declaration, such
Principal (or portion thereof) shall be due and payable immediately. If an
Event of Default specified in Section 6.1(3) or (4) occurs and is continuing,
the Principal (or portion thereof) of all the Securities of that series shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Securityholders. The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series, by
notice to the Trustee (and without notice to any other Securityholder) may
rescind an acceleration with respect to that series and its consequences if the
rescission would not conflict with any judgment or decree and all existing
Events of Default with respect to Securities of such series have been cured or
waived except nonpayment of the Principal (or portion thereof) of Securities of
such series that has become due solely as a result of such acceleration and if
all amounts due to the Trustee under Section 7.7 have been paid. No such re-
scission shall affect any subsequent Default or impair any right consequent
thereto.
SECTION 6.3 OTHER REMEDIES. If an Event of Default with respect to a
series of Outstanding Securities occurs and is continuing, the Trustee may
pursue any available remedy to (a) collect the payment of the whole amount then
due and payable on such Securities for Principal and interest, with interest
upon the overdue Principal and, to the extent that payment of such interest
shall be legally enforceable, upon overdue installments of interest from the
date such interest was due, at the rate or rates prescribed therefor in such
Securities and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including amounts due the Trustee
under Section 7.7 or (b) enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or coupons or does not produce any of the
Securities or coupons in the proceeding. A delay or omission by the Trustee or
any Securityholder in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of, or
acquiescence in, the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
36
SECTION 6.4 WAIVER OF PAST DEFAULTS. The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series, by
notice to the Trustee (and without notice to any other Securityholder), may on
behalf of the Holders of all the Securities of such series and any related
coupons waive an existing Default with respect to such series and its
consequences except (1) an Event of Default described in Section 6.1(1) with
respect to such series or (2) a Default in respect of a provision that under
Section 9.2 cannot be amended without the consent of the Holder of each Out-
standing Security of such series affected. When a Default is waived, it is
deemed cured, but no such waiver shall extend to any subsequent or other Default
or impair any consequent right.
SECTION 6.5 CONTROL BY MAJORITY. The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee with respect to the Securities of such series. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture
or that the Trustee determines in good faith is unduly prejudicial to the
rights of other Securityholders or would involve the Trustee in personal
liability.
SECTION 6.6 LIMITATION ON SUITS. A Holder of any Security of any
series or any related coupons may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default with respect to the Securities of that series is
continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of
the Outstanding Securities of that series make a written request to
the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense satis-
factory to the Trustee;
(4) the Trustee does not comply with the request within 60 days
after receipt of the notice, the request and the offer of security or
indemnity; and
(5) the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities of that series do not give the Trustee a
direction inconsistent with such request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the
rights of any other Securityholder or to obtain a preference or priority over
any other Securityholder.
37
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right, which is absolute and uncondi-
tional, of any Holder of any Security or coupon to receive payment of the
Principal of and (subject to Section 2.13) interest on such Security or payment
of such coupon on the Stated Maturity or Maturities expressed in such Security
or coupon (or, in the case of redemption, on the Redemption Date) held by such
Holder, on or after the respective due dates expressed in the Securities or any
Redemption Date, or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected adversely without
the consent of each such Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE. If an Event of Default
described in Section 6.1(1) with respect to Securities of any series occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company for the whole amount owing with respect
to such series of Securities and the amounts provided for in Section 7.7.
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the Principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
Principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
Principal and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensa-
tion, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amount due the Trustee
under Section 7.7) and of the Holders of Securities and cou-
pons allowed in such judicial proceeding, and
(b) 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
similar official in any such judicial proceeding is hereby authorized by each
Holder of Securities and coupons to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders of Securities and coupons, to pay the Trustee any amount due it
for the reasonable compensation, expens-
38
es, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee
or the holders of Senior Indebtedness to authorize or consent to or accept or
adopt on behalf of any Holder of a Security or coupon any plan of
reorganization, arrangement, adjustment or composition affecting the
Securities or coupons or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security or
coupon in any such proceeding.
SECTION 6.10 PRIORITIES. If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order and, in case
of the distribution of such money on account of Principal or interest, upon
presentation of the Securities or coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to holders of Senior Indebtedness as provided for in
Article XIII;
THIRD: to Securityholders for amounts due and unpaid for the Princi-
pal and interest on the Securities and interest evidenced by coupons in respect
of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities and coupons for Principal and interest, respectively;
and
FOURTH: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Securityholder and the Trustee a
notice that states the record date, the payment date and amount to be paid.
SECTION 6.11 UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7 or a suit
by Holders of more than 10% in aggregate Principal Amount of the Outstanding
Securities of any series, or to any suit instituted by any Holder of any
Security or coupon for the enforcement of the payment of the Principal of or
interest on any Security or the payment of any coupon on or after the Stated
Maturity or Maturities expressed in such Security or coupon (or, in the case of
redemption, on or after the Redemption Date).
39
SECTION 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the execu-
tion of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VII
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specif-
ically set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correct-
ness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph (b)
of this Section 7.1;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
40
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) The Trustee may refuse to perform any duty or exercise any right
or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall not be liable for any interest on any money received by it except as the
Trustee may otherwise agree with the Company.
SECTION 7.2 RIGHTS OF TRUSTEE. (a) The Trustee may rely on any docu-
ment believed by it to be genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) Subject to the provisions of Section 7.1 (c), the Trustee shall
not be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE, ETC. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
or coupons and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee. Any Paying Agent, Registrar
or co-registrar or any other agent of the Company may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4 TRUSTEE'S DISCLAIMER. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities or coupons.
The Trustee shall not be accountable for the Company's use of the proceeds from
the Securities and, shall not
41
be responsible for any statement in the registration statement for the Securi-
ties under the Securities Act of 1933, as amended, or in the Indenture or the
Securities or any coupons (other than its certificate of authentication) or for
the determination as to which beneficial owners are entitled to receive any
notices hereunder.
SECTION 7.5 NOTICE OF DEFAULTS. If a Default with respect to the
Securities of any series occurs and is continuing and if it is known to the
Trustee, the Trustee shall give to each Holder of Securities of such series
notice of such Default in the manner set forth in TIA Section 315(b) within 90
days after it occurs. Except in the case of a Default described in Section
6.1(1) with respect to any Security of such series or a Default in the payment
of any sinking fund installment with respect to any Security of such series, the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of the Holders of Securities of such series.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each
May 15 beginning with the May 15 following the date of this Indenture, the
Trustee shall mail to each Holder of Securities a brief report dated as of such
May 15 that complies with TIA Section 313(a). The Trustee also shall comply
with TIA Section 313(b) and (c).
A copy of each report at the time of its mailing to Holders of
Securities shall be filed with the SEC and each stock exchange on which the
Securities of that series may be listed. The Company agrees to notify the
Trustee whenever the Securities of a particular series become listed on any
stock exchange and of any delisting thereof.
SECTION 7.7 COMPENSATION AND INDEMNITY. The Company agrees:
(a) to pay to the Trustee from time to time reasonable com-
pensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express
trust);
(b) to reimburse the Trustee upon its request for all rea-
sonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses, advances and disbursements of its agents and coun-
sel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself
against any claim or liability
42
in connection with the exercise or performance of any of its powers or
duties hereunder.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Securities and any coupons on all money
or property held or collected by the Trustee, except that held in trust to pay
the Principal of or interest, if any, on particular Securities or for the
payment of particular coupons.
The Company's payment obligations pursuant to this Section 7.7 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.1(3) or (4), the expenses are
intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.8 REPLACEMENT OF TRUSTEE. The Trustee may resign by so
notifying the Company; PROVIDED, HOWEVER, no such resignation shall be effective
until a successor Trustee has accepted its appointment pursuant to this Section
7.8. The Holders of a majority in aggregate Principal Amount of the Outstanding
Securities of any series at the time outstanding may remove the Trustee with
respect to the Securities of such series by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to the Securities of one or more
series, the Company shall promptly appoint, by resolution of its Board of
Directors, a successor Trustee with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
series).
In the case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Trustee shall become
effective and the successor Trustee shall have all the rights, powers and duties
of the Trustee under this Indenture. The successor Trustee shall mail a notice
of its succession to Holders of Securities of the particular series with
43
respect to which such successor Trustee has been appointed. The retiring Trust-
ee shall promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 7.7.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts here-
under by more than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees as co-Trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, subject, nevertheless, to its lien, if any,
provided for in Section 7.7.
If a successor Trustee with respect to the Securities of any series
does not take office within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of such series at the
time outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
If the Trustee fails to comply with Section 7.10, any Holder of a
Security of such series may petition any court of competent jurisdiction for the
removal of such Trustee and the appointment of a successor Trustee.
44
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a)(1) and 310(a)(5). The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b), including the optional provision permitted
by the second sentence of TIA Section 310(b)(9). In determining whether the
Trustee has conflicting interests as defined in TIA Section 310(b)(1), the
provisions contained in the proviso to TIA Section 310(b)(1) shall be deemed
incorporated herein.
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with TIA Section 311(a), excluding any creditor relation-
ship listed in TIA Section 311(b). A Trustee who has resigned or been removed
shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 DISCHARGE OF LIABILITY ON SECURITIES. Except as otherwise
contemplated by Section 2.3(a), when (a) the Company delivers to the Trustee all
Outstanding Securities or all Outstanding Securities of any series, as the case
may be, theretofore authenticated and delivered and all coupons, if any, apper-
taining thereto (other than (i) coupons appertaining to Bearer Securities sur-
rendered for exchange for Registered Securities and maturing after such
exchange, whose surrender is not required or has been waived as provided in
Section 2.8, (ii) Securities or Securities of such series, as the case may be,
and coupons, if any, which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.9, (iii) coupons, if any, apper-
taining to Securities or Securities of such series, as the case may be, called
for redemption and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 3.4, and (iv) Securities or Securities of
such series, as the case may be, and coupons, if any, for whose payment money
has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 2.4) for cancellation or (b) all Outstanding Securities have
become due and payable and the Company deposits with the Trustee cash sufficient
to pay at Stated Maturity the Principal Amount of all Principal of and interest
on Outstanding Securities or all Outstanding Securities of such series (other
than Securities replaced pursuant to Section 2.9), and if in either case the
45
Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Section 7.7, cease to be of further effect as to all
Outstanding Securities or all Outstanding Securities of any series, as the case
may be. The Trustee shall join in the execution of a document prepared by the
Company acknowledging satisfaction and discharge of this Indenture on demand of
the Company accompanied by an Officers' Certificate and Opinion of Counsel and
at the cost and expense of the Company.
SECTION 8.2 REPAYMENT TO THE COMPANY. The Trustee and the Paying Agent
shall return to the Company on Company Request any money held by them for the
payment of any amount with respect to the Securities that remains unclaimed for
two years; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before
being required to make any such return, may at the expense and direction of the
Company cause to be published once in an Authorized Newspaper in each Place of
Payment of or mail to each such Holder 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 or mailing, any unclaimed money then remaining
will be returned to the Company. After return to the Company, Holders entitled
to the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person.
SECTION 8.3 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE. Unless
otherwise specified as contemplated by Section 2.3(a) with respect to Securities
of a particular series, the Company, may at its option, by Board Resolution, at
any time, with respect to any series of Securities, elect to have either Section
8.4 or Section 8.5 be applied to all of the outstanding Securities of any series
(the "Defeased Securities"), upon compliance with the conditions set forth below
in Article VIII.
SECTION 8.4 DEFEASANCE AND DISCHARGE. Upon the Company's exercise
under Section 8.3 of the option applicable to this Section 8.2, the Company and
the Guarantor, if any, shall be deemed to have been discharged from their
obligations with respect to the Defeased Securities on the date the conditions
set forth below are satisfied (hereinafter "defeasance"). For this purpose,
such defeasance means that the Company and the Guarantor shall be deemed to have
paid and discharged the entire indebtedness represented by the defeased Securi-
ties, which shall thereafter be deemed to be "outstanding" only for the purposes
of Sections 2.4, 2.5,2.6, 2.9, 2.11, 2.12, 4.1, 4.5, 6.6, 6.7, 7.7, 7.8 and 8.2
of this Indenture and to have satisfied all its other obligations under such
series of Securities and this Indenture insofar as such series of Securities are
concerned (and the Trustee, at the expense of the Company, and, upon written
request, shall execute proper instruments acknowledging the same). Subject to
compliance with this Article VIII, the Company may exercise its option under
this Section 8.4 notwithstanding the prior exercise of its option under Section
8.5 with respect to a series of Securities.
SECTION 8.5 COVENANT DEFEASANCE. Upon the Company's exercise under
Section 13.1 of the option applicable to this Section 8.5, the Company and the
Guarantor, if
46
any, shall be release from their obligations under Sections 4.2 and 4.3 and
Article V and such other provisions as may be provided as contemplated by
Section 2.3(a) with respect to Securities of a particular series and with
respect to the Defeased Securities on and after the date the conditions set
forth below are satisfied (hereinafter "covenant defeasance"), and the Defeased
Securities shall thereafter be deemed to be not "outstanding" for the purposes
of any direction, waiver, consent or declaration or act of Holders (and the
consequences if any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Defeased
Securities, the Company and the Guarantor may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such Section or Article, whether directly or indirectly, by reason of any refer-
ence elsewhere herein to any such Section or Article or by reason of any
reference in any such Section or Article to any other provisions herein or in
any other document and such omission to comply shall not constitute a Default or
an Event of Default under Section 6.1 but, except as specified above, the
remainder of this Indenture and such Defeased Securities shall be unaffected
thereby.
SECTION 8.6 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of either Section 8.4 or
Section 8.5 to a series of outstanding Securities.
(a) The Company shall have irrevocably deposited with the Trustee, in
trust, (i) sufficient funds in the currency or currency unit in which the
Securities of such series are denominated to pay the Principal of and interest
to Stated Maturity (or redemption) on, the Debt Securities of such series, or
(ii) such amount of direct obligations of, or obligations the principal of and
interest on which are fully guaranteed by, the government which issued the
currency in which the Securities of such series are denominated, and which are
not subject to prepayment, redemption or call, as will, together with the
predetermined and certain income to accrue thereon without consideration of any
reinvestment thereof, be sufficient to pay when due the Principal of, and
interest to Stated Maturity (or redemption) on, the Debt Securities of such
series.
(b) The Company shall (i) have delivered an opinion of counsel that
the Holders of the Securities of such series will not recognize income, gain or
loss for United States Federal income tax purposes as a result of such xxxxx-
xxxxx, and will be subject to tax in the same manner as if no defeasance and
discharge or covenant defeasance, as the case may be, had occurred or (ii) in
the case of an election under Section 8.4 the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date this Indenture was first executed, there has been a
change in the applicable federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel in the United States shall
confirm that, the
47
holders of Outstanding Securities of that particular series will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the Company, the
Guarantor and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants, agreements and obligations of the
Company for the benefit of the Holders of all of the Securities or any
series thereof, or to surrender any right or power herein conferred
upon the Company; or
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to Principal, to
change or eliminate any restrictions (including restrictions relating
to payment in the United States) on the payment of Principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities
to be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit the issuance of Securities in
uncertificated form; or
(4) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 2.1 and 2.3(a),
respectively; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 7.8; or
(6) to cure any ambiguity, defect or inconsistency; or
(7) to add to, change or eliminate any of the provisions of this
Indenture (which addition, change or elimination may apply to one or
more series of Securities), PROVIDED that any such addition, change or
elimination shall neither (A) apply to any Security of any series
created prior to the execution of such supplemental
48
indenture and entitled to the benefit of such provision nor (B) modify
the rights of the Holder of any such Security with respect to such
provision; or
(8) to remove the Guarantor and references to the Guaranty (as
hereafter defined) upon the occurrence of the events specified in
Section 12.3 of this Indenture;
(9) to secure the Securities; or
(10) to make any other change that does not adversely affect the
rights of any Securityholder.
SECTION 9.2 Supplemental Indentures with Consent of Holders. With
the written consent of the Holders of at least a majority in aggregate
Principal Amount of the Outstanding Securities of each series affected by
such supplemental indenture, the Company, the Guarantor and the Trustee may
amend this Indenture or the Securities of any series or may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of
the Securities of such series and any related coupons under this Indenture;
PROVIDED, HOWEVER, that no such amendment or supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby:
(1) change the Stated Maturity of the Principal of, or any
installment of Principal or interest on, any such Security, or reduce
the Principal Amount thereof or the rate of interest thereon or any
premium payable upon redemption thereof or reduce the amount of Prin-
cipal of any such Discount Security that would be due and payable upon
a declaration of acceleration of maturity thereof pursuant to Section
6.2, or change the Place of Payment, or change the coin or currency in
which, any Principal of, or any installment of interest on, any such
Security 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);
(2) reduce the percentage in Principal Amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such amendment or supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) with respect to the Securities of such series provided
for in this Indenture;
49
(3) make any change in the terms of any Guaranty of any series of
the Securities in a manner adverse to the rights of the holders of the
Securities of such series; or
(4) modify any of the provisions of this Section, Section 6.4 or
6.7, except to increase the percentage of Outstanding Securities of
such series required for such actions to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment or
supplemental indenture, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment or supplemental indenture under this Section 9.2
becomes effective, the Company shall mail to each Holder of the particular
Securities affected thereby a notice briefly describing the amendment.
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA as then in
effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS.
Until an amendment or waiver with respect to a series of Securities becomes
effective, a consent to it or any other action by a Holder of a Security of that
series hereunder is a continuing consent by the Holder and every subsequent
Holder of that Security or portion of that Security that evidences the same
obligation as the consenting Holder's Security, even if notation of the consent,
waiver or action is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent, waiver or action as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the Company or an agent of the Company certifies to the
Trustee that the consent of the requisite aggregate Principal Amount of the
Securities of that series has been obtained. After an amendment, waiver or
action becomes effective, it shall bind every Holder of Securities of that
series.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment or
waiver with respect
50
to a series of Securities. If a record date is fixed, then
notwithstanding the first two sentences of the immediately preceding paragraph,
those persons who were Holders of Securities of that series at such record date
(or their duly designated proxies), and only those persons, shall be entitled to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
SECTION 9.5 NOTATION ON OR EXCHANGE OF SECURITIES. Securities of any
series authenticated and delivered after the execution of any supplemental
indenture with respect to such series pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of such series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for outstanding Securities of that series.
SECTION 9.6 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The Trustee shall
sign any supplemental indenture authorized pursuant to this Article 9 if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing such amendment, the Trustee shall be entitled to receive, and
(subject to the provisions of Section 7.1) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
SECTION 9.7 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby, except
to the extent otherwise set forth thereon.
ARTICLE X
SINKING FUNDS
SECTION 10.1 APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series, except as otherwise specified as contemplated by Section 2.3(a) 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
51
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 10.2. Each sinking
fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of the Securities of such series.
SECTION 10.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series with the same
issue date, interest rate and Stated Maturity (other than any previously
called for redemption), together in the case of any Bearer Securities of such
series with the same issue date, interest rate and Stated Maturity with all
unmatured coupons appertaining thereto, and (2) may apply as a credit
Securities of a series with the same issue date, interest rate and Stated
Maturity which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of such series with the
same issue date, interest rate and Stated Maturity; PROVIDED that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 10.3 REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than
60 days (or such shorter period as shall be acceptable to the Trustee) prior to
each sinking fund payment date for any series of Securities, the Company will
deliver to the Trustee an Officers' Certificate specifying the amount of the
next ensuing sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by payment of cash
and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 10.2 and will also
deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the Secu-
rities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.2 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 3.3. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 3.4
and 3.6.
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
SECTION 11.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice,
52
consent, waiver or other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series.
SECTION 11.2 CALL, NOTICE AND PLACE OF MEETINGS. (a) The Trustee
may at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 11.1, to be held at such time and at such place
in the Borough of Manhattan, The City of New York or, for a series of
Securities issued as Bearer Securities, in London as the Trustee shall
determine or, with the approval of the Company, at any other place. Notice
of every meeting of Holders of Securities of any series, setting forth the
time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in
Section 13.2, not less than 21 nor more than 180 days prior to the date fixed
for the meeting.
(b) In case at any time the Company or the Holders of at least 10% in
Principal Amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 11.1, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or
the Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in the Borough of Manhattan,
The City of New York, or for a series of Securities issued as Bearer Securities,
in London, or in such other place as shall be determined and approved by the
Company, for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section 11.2.
SECTION 11.3 PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to
vote at any meeting of Holders of Securities of any series, a person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders.
The only persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 11.4 QUORUM; ACTION. The persons entitled to vote a majority
in Principal Amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series. In the absence of
a quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case, the meeting may be adjourned for a
period determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned
53
meeting, such adjourned meeting may be further adjourned for a period determined
by the chairman of the meeting prior to the adjournment of such adjourned
meeting. Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 11.2(a), except that such notice need be given only once not
less than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in Principal Amount of the Outstanding Securities of that series;
PROVIDED, HOWEVER, that, except as limited by the proviso to Section 9.2, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in Principal Amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in Principal Amount of the Outstanding Securities
of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 11.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS. (a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
11.7 and the appointment of any proxy shall be proved in the manner specified in
Section 11.7 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 11.7 to certify to the holding of Bearer Securities. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 11.7 or
other proof.
54
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 11.2 (b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the persons entitled to vote a majority in Principal Amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to vote with respect to the Outstanding Securities of such
series held or represented by him; PROVIDED, HOWEVER, that no vote shall be cast
or counted at any meeting in respect to any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 11.2 at which a quorum is present may be adjourned from time
to time by persons entitled to vote a majority in Principal Amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 11.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed signatures of
the Holders of Securities of such series or of their representatives by proxy
and the Principal Amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 11.2 and, if applicable, Section 11.4. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 11.7 ACTIONS OF HOLDERS GENERALLY. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be
55
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing. If Securities of a series are issuable
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of such series may, alternatively, be embodied in and evidenced by
the record of Holders of Securities of such series voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of
Holders of Securities of such series duly called and held in accordance with the
provisions of this Article, or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Proof
of execution of any such instrument or of a writing appointing any such agent,
or of the holding by any person of a Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 7.1) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
The record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 11.6.
(b) The fact and date of the execution by any person of any such
instrument or writing, or the authority of the persons executing the same, may
be proved in any reasonable manner which the Trustee deems sufficient.
(c) The Principal Amount and serial numbers of Registered Securities
held by the person, and the date of holding the same, shall be proved by the
books of the Registrar.
(d) The Principal Amount and serial numbers of Bearer Securities held
by any person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed by any trust company,
bank, banker or other depositary, wherever situated, as depositary, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The Principal Amount and
serial numbers of Bearer Securities held by any person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
56
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other act of the Holder of any Security in accordance with this
Section shall bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(f) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other act in accordance
with this Section, the Company may, at its option, by or pursuant to an
Officers' Certificate delivered to the Trustee, fix in advance a record date for
the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or such other act, but the
Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite percentage of
Outstanding Securities or Outstanding Securities of a series, as the case may
be, have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other act, and for that
purpose the Outstanding Securities or Outstanding Securities of the series, as
the case may be, shall be computed as of such record date; PROVIDED, that no
such authorization, agreement or consent by the Holders on the record date shall
be deemed effective unless such request, demand, authorization, direction,
notice, consent, waiver or other act shall become effective pursuant to the
provisions of clause (a) of this Section 11.7 not later than six months after
the record date.
ARTICLE XII
GUARANTY
SECTION 12.1 GUARANTY. The provisions of this Article shall be
applicable to any issuance of a series of Securities as to which payment
obligations thereunder, to the extent specified as contemplated by Section
2.3(a), are to be guaranteed by the Guarantor.
(a) In consideration of good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Guarantor hereby
irrevocably and unconditionally guarantees (the "Guaranty") to each Holder of a
Security of a particular series authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns that: (x) the Principal of and
interest on the Securities will be paid in full when due, whether at Maturity or
Interest Payment Date or otherwise; (y) all other obligations of the Company to
the Holders or the Trustee under this Indenture or the Securities will be
promptly paid in full or performed, all in accordance with the terms of this
Indenture and
57
the Securities of such series; and (z) in case of any extension of time of
payment or renewal of any Securities of such series or any of such other obliga-
tions, they will be paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at maturity or otherwise. Failing
payment when due of any amount so guaranteed for whatever reason, the Guarantor
shall be obligated to pay the same before failure so to pay becomes an Event of
Default.
(b) The Guarantor hereby agrees that its obligations with regard to
this Guaranty shall be unconditional, irrespective of the validity, regularity
or enforceability of the Securities or this Indenture, the absence of any action
to enforce the same, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstances that might otherwise
constitute a legal or equitable discharge or defense of a guarantor. The
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company or right to require the
prior disposition of the assets of the Company to meet their obligations,
protest, notice and all demands whatsoever and covenants that this Guaranty will
not be discharged except by complete performance of the obligations contained in
the Securities and this Indenture or otherwise in accordance with this Indenture
or as specified as contemplated by Section 2.3(a) with respect to Securities of
a particular series.
It is the intention of the Guarantor and the Company that the obliga-
tions of the Guarantor hereunder shall be in, but not in excess of, the maximum
amount permitted by applicable law. Accordingly, if the obligations in respect
of the Guaranty would be annulled, avoided or subordinated to the creditors of
the Guarantor by a court of competent jurisdiction in a proceeding actually
pending before such court as a result of a determination both that such Guaranty
was made without fair consideration and that, at the time thereof, immediately
after giving effect thereto, or at the time that any demand is made thereupon
the Guarantor was insolvent or unable to pay its debts as they mature or left
with an unreasonably small capital, then the obligations of the Guarantor under
the Guaranty shall be reduced by such an amount, if any, that would result in
the avoidance of such annulment, avoidance or subordination; PROVIDED, HOWEVER,
that any reduction pursuant to this paragraph shall be made in the smallest
amount as is necessary to reach such result. For purposes of this paragraph,
"fair consideration," "insolvency," "unable to pay its debts as they mature,"
"unreasonably small capital" and the effective times of reductions, if any,
required by this paragraph shall be determined in accordance with applicable
law.
SECTION 12.2 EXECUTION AND DELIVERY OF THE GUARANTY. To evidence its
Guaranty set forth in Section 12.1, the Guarantor agrees that a notation of such
Guaranty substantially in the form annexed hereto as Exhibit A or as otherwise
specified as contemplated by Section 2.3(a) with respect to Securities of a
particular series shall be endorsed on each Security authenticated and delivered
by the Trustee and that this Indenture shall be
58
executed on behalf of such Guarantor by two Authorized Representatives or by one
Authorized Representative with an attestation by another Authorized Representa-
tive, by manual or facsimile signature.
The Guarantor agrees that its Guaranty set forth in Section 12.1
shall remain in full force and effect and apply to all the Securities
notwithstanding any failure to endorse on each Security a notation of such
Guaranty.
If an Authorized Representative whose signature is on a Security
no longer holds that office at the time the Trustee authenticates the Security
on which a Guaranty is endorsed, the Guaranty shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authenti-
cation thereof hereunder, shall constitute due delivery of the Guaranty set
forth in this Indenture on behalf of each Guarantor.
SECTION 12.3 TERMINATION OF THE GUARANTY. Unless otherwise
specified as contemplated by Section 2.3(a) with respect to Securities of a
particular series, the Guarantor's obligations under the Guaranty and this
Indenture shall terminate immediately and automatically upon the consummation
of the Acquisition without any action on the part of the Company, the
Guarantor, the Trustee or any other person. The Guarantor intends to
Guarantee the obligations of the Company under the Securities and this
Indenture only for the period that the Company is a wholly owned subsidiary
of the Guarantor. From and after the time that Capital Cities becomes a
subsidiary or an Affiliate of the Company, the Trustee and Holders of
Securities, whether then outstanding or issued thereafter, shall look only to
the Company for performance under this Indenture and the Securities and shall
have no further rights or remedies under the Guaranty or this Article XII.
From and after the time the Guaranty terminates under this Article XII, any
certificates authenticated and delivered pursuant to Section 2.4 shall not
include the form of Guaranty attached hereto as Exhibit A.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.2 NOTICES. Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail, postage prepaid,
addressed as follows:
59
if to the Company:
DC Holdco, Inc.
000 Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Legal Department
if to the Guarantor:
The Xxxx Disney Company
000 Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Legal Department
if to the Trustee:
Attention:
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication given to a Holder of Registered Securities
shall be mailed to such Securityholder at the Securityholder's address as it
appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed. Notice shall be sufficiently
given to Holders of Bearer Securities if published in an Authorized Newspaper in
The City of New York and in such other city or cities as may be specified in
such Securities on a Business Day at least twice, the first such publication to
be not earlier than the earliest date, and not later than the latest date,
prescribed for the giving of such notice.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders
60
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other Holders of
Securities of the same series. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not received by the address-
ee.
If the Company mails a notice or communication to the Holders of
Securities of a particular series, it shall mail a copy to the Trustee and each
Registrar, co-registrar or Paying Agent, as the case may be, with respect to
such series.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
acceptance of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 13.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company and the Trustee, the Registrar or the Paying Agent with
respect to a particular series of Securities, and anyone else, shall have the
protection of TIA Section 312(c).
SECTION 13.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
61
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 13.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION Each
Officers' Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) statement that each person making such Officers' Certificate
or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the exami-
nation or investigation upon which the statements or opinions
contained in such Officers' Certificate or Opinion of Counsel are
based;
(3) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement that, in the opinion of such person, such covenant
or condition has been complied with.
SECTION 13.6 SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 13.7 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR With respect
to the Securities of a particular series, the Trustee with respect to such
series of Securities may make reasonable rules for action by or a meeting of
Holders of such series of Securities. With respect to the Securities of a
particular series, the Registrar and the Paying Agent with respect to such
series of Securities may make reasonable rules for their functions.
SECTION 13.8 LEGAL HOLIDAYS. A "LEGAL HOLIDAY" is any day other than a
Business Day. If any specified date (including an Interest Payment Date, Re-
demption Date or Stated Maturity of any Security, or a date for giving notice)
is a Legal Holiday at any Place of Payment or place for giving notice, then
(notwithstanding any other provision of this Indenture or of the Securities or
coupons other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section)
payment of interest or Principal need not be made at such Place of Payment, or
such
62
other action need not be taken, on such date, but the action shall be taken on
the next succeeding day that is not a Legal Holiday at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity or such other date and to the extent
applicable no Original Issue Discount or interest, if any, shall accrue for the
intervening period.
SECTION 13.9 GOVERNING LAW. THIS INDENTURE, THE SECURITIES AND THE
GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 13.10 NO RECOURSE AGAINST OTHERS A director, officer,
employee or stockholder, as such, of the Company or the Guarantor shall not
have any liability for any obligations of the Company or the Guarantor under
the Securities, the Guarantees or this Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. By
accepting a Security, each Holder of such Security shall waive and release
all such liability. The waiver and release shall be part of the
consideration for the issue of the Securities.
SECTION 13.11 SUCCESSORS All agreements of the Company and the
Guarantor in this Indenture and the Securities and the Guarantees shall bind its
respective successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 13.12 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 13.13 BENEFITS OF INDENTURE Nothing in this Indenture or in
the Securities or Guarantees, express or implied, shall give to any person,
other than the parties hereto and their successors hereunder and the Holders
of Securities, any benefits or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 13.14 MULTIPLE ORIGINALS The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.
63
DC HOLDCO, INC.
By:
----------------------------
Name:
Title:
Attest:
----------------------------
Name:
Title:
, as Trustee
By
---------------------------
Name:
Title:
Attest:
-----------------------------
Name:
Title:
THE XXXX DISNEY COMPANY
as Guarantor
By:
---------------------------
Name:
Title:
64
Attest:
-----------------------------
Name:
Title:
65
EXHIBIT A
FORM OF GUARANTY
For value received, The Xxxx Disney Company, a Delaware corpora-
tion, hereby fully and unconditionally guarantees to the Holder of the Security
upon which this Guaranty is endorsed the due and punctual payment, as set forth
in the Indenture pursuant to which such Security and this Guaranty were issued,
of the Principal of and interest on such Security when and as the same shall
become due and payable for any reason according to the terms of such Security
and Article XII of the Indenture. The Guaranty of the Security upon which this
Guaranty is endorsed will terminate automatically upon the occurrence of certain
events as provided in Article XII of the Indenture, including without limitation
the consummation of the acquisition of Capital Cities/ABC, Inc. by The Xxxx
Disney Company. The Guaranty of the Security upon which this Guaranty is en-
dorsed will not become effective until the Trustee signs the certificate of
authentication on such Security.
THE XXXX DISNEY COMPANY
By:
---------------------------
Attest:
---------------------------
66
