EXHIBIT 4.2
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PACKAGING CORPORATION OF AMERICA,
ISSUER
to
U.S. Bank National Association,
TRUSTEE
---------------
INDENTURE
---------------
Dated as of July 21, 2003
Senior Debt Securities
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Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture Section
------------------------------ -----------------
Section 310(a)(1) ............................................................. 607
(a)(2) ............................................................. 607
(b) ............................................................. 608
Section 312(a) ............................................................. 701
(b) ............................................................. 702
(c) ............................................................. 702
Section 313(a) ............................................................. 703
(b)(2) ............................................................. 703
(c) ............................................................. 703
(d) ............................................................. 703
Section 314(a) ............................................................. 704
(c)(1) ............................................................. 102
(c)(2) ............................................................. 102
(e) ............................................................. 102
(f) ............................................................. 102
Section 316(a) (last sentence) ............................................................. 101
(a)(1)(A) ............................................................. 502, 512
(a)(1)(B) ............................................................. 513
(b) ............................................................. 508
Section 317(a)(1) ............................................................. 503
(a)(2) ............................................................. 504
(b) ............................................................. 1003
Section 318(a) ............................................................. 108
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.....................................................................................1
Section 102. Compliance Certificates and Opinions...........................................................11
Section 103. Form of Documents Delivered to Trustee.........................................................12
Section 104. Acts of Holders................................................................................13
Section 105. Notices, etc. to Trustee and Company...........................................................14
Section 106. Notice to Holders of Securities; Waiver........................................................15
Section 107. Language of Notices............................................................................16
Section 108. Conflict with Trust Indenture Act..............................................................16
Section 109. Effect of Headings and Table of Contents.......................................................16
Section 110. Successors and Assigns.........................................................................16
Section 111. Separability Clause............................................................................16
Section 112. Benefits of Indenture..........................................................................16
Section 113. Governing Law..................................................................................16
Section 114. Legal Holidays.................................................................................16
Section 115. Counterparts...................................................................................17
Section 116. Judgment Currency..............................................................................17
Section 117. Extension of Payment Dates.....................................................................17
Section 118. Immunity of Stockholders, Directors, Officers and Agents of the Company........................18
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally................................................................................18
Section 202. Form of Trustee's Certificate of Authentication................................................18
Section 203. Securities in Global Form......................................................................19
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series...........................................................20
Section 302. Currency; Denominations........................................................................24
Section 303. Execution, Authentication, Delivery and Dating.................................................24
Section 304. Temporary Securities...........................................................................26
Section 305. Registration, Transfer and Exchange............................................................27
Section 306. Mutilated, Destroyed, Lost and Stolen Securities...............................................30
Section 307. Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain
Additional Amounts Preserved.................................................................31
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Section 308. Persons Deemed Owners..........................................................................33
Section 309. Cancellation...................................................................................34
Section 310. Computation of Interest........................................................................34
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.....................................................................34
Section 402. Defeasance and Covenant Defeasance.............................................................36
Section 403. Application of Trust Money.....................................................................40
Section 404. Reinstatement..................................................................................41
ARTICLE FIVE
REMEDIES
Section 501. Events of Default..............................................................................41
Section 502. Acceleration of Maturity; Rescission and Annulment.............................................43
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee................................44
Section 504. Trustee May File Proofs of Claim...............................................................45
Section 505. Trustee May Enforce Claims without Possession of Securities or Coupons.........................46
Section 506. Application of Money Collected.................................................................46
Section 507. Limitations on Suits...........................................................................46
Section 508. Unconditional Right of Holders to Receive Principal and any Premium, Interest and
Additional Amounts...........................................................................47
Section 509. Restoration of Rights and Remedies.............................................................47
Section 510. Rights and Remedies Cumulative.................................................................48
Section 511. Delay or Omission Not Waiver...................................................................48
Section 512. Control by Holders of Securities...............................................................48
Section 513. Waiver of Past Defaults........................................................................48
Section 514. Waiver of Usury, Stay or Extension Laws........................................................49
Section 515. Undertaking for Costs..........................................................................49
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee......................................................................50
Section 602. Notice of Defaults.............................................................................51
Section 603. Not Responsible for Recitals or Issuance of Securities.........................................52
Section 604. May Hold Securities............................................................................52
Section 605. Money Held in Trust............................................................................52
Section 606. Compensation and Reimbursement.................................................................52
Section 607. Corporate Trustee Required; Eligibility........................................................53
Section 608. Resignation and Removal; Appointment of Successor..............................................53
Section 609. Acceptance of Appointment by Successor.........................................................55
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Section 610. Merger, Conversion, Consolidation or Succession to Business....................................56
Section 611. Appointment of Authenticating Agent............................................................56
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders......................................58
Section 702. Preservation of Information; Communications to Holders.........................................58
Section 703. Reports by Trustee.............................................................................59
Section 704. Reports by Company.............................................................................59
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate, Etc., Only on Certain Terms...........................................60
Section 802. Successor Person Substituted for Company.......................................................60
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.............................................61
Section 902. Supplemental Indentures with Consent of Holders................................................63
Section 903. Execution of Supplemental Indentures...........................................................64
Section 904. Effect of Supplemental Indentures..............................................................64
Section 905. Reference in Securities to Supplemental Indentures.............................................64
Section 906. Conformity with Trust Indenture Act............................................................65
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, Interest and Additional Amounts.................................65
Section 1002. Maintenance of Office or Agency................................................................65
Section 1003. Money for Securities Payments to Be Held in Trust..............................................66
Section 1004. Additional Amounts.............................................................................68
Section 1005. Limitation on Liens............................................................................69
Section 1006. Limitation on Sale and Leaseback Transactions..................................................71
Section 1007. Corporate Existence............................................................................72
Section 1008. Maintenance of Principal Properties............................................................72
Section 1009. Payment of Taxes and Other Claims..............................................................72
Section 1010. Waiver of Certain Covenants....................................................................72
Section 1011. Company Statement as to Compliance.............................................................73
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.......................................................................73
Section 1102. Election to Redeem; Notice to Trustee..........................................................73
Section 1103. Selection by Trustee of Securities to be Redeemed..............................................73
Section 1104. Notice of Redemption...........................................................................74
Section 1105. Deposit of Redemption Price....................................................................76
Section 1106. Securities Payable on Redemption Date..........................................................76
Section 1107. Securities Redeemed in Part....................................................................77
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.......................................................................78
Section 1202. Satisfaction of Sinking Fund Payments with Securities..........................................78
Section 1203. Redemption of Securities for Sinking Fund......................................................79
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.......................................................................79
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article.......................................................................80
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called......................................................80
Section 1502. Call, Notice and Place of Meetings.............................................................80
Section 1503. Persons Entitled to Vote at Meetings...........................................................81
Section 1504. Quorum; Action.................................................................................81
Section 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings............................82
Section 1506. Counting Votes and Recording Action of Meetings................................................83
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INDENTURE, dated as of July 21, 2003 (the "Indenture"), between Packaging
Corporation of America, a Delaware corporation (hereinafter called the
"Company"), having its principal executive office located at 0000 Xxxx Xxxxx
Xxxxx, Xxxx Xxxxxx, Xxxxxxxx 00000, and U.S. Bank National Association, a
national banking association (hereinafter called the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior unsecured
notes, debentures or other evidences of indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder that are required to be part of this Indenture
and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders (as herein defined) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Securities
or of any series thereof and any Coupons (as herein defined) as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. DEFINITIONS.
Except as otherwise expressly provided in or pursuant to this Indenture or
unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
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(4) the words "herein," "hereof," "hereto" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(5) the word "or" is always used inclusively (for example, the
phrase "A or B" means "A or B or both," not "either A or B but not both");
(6) provisions apply to successive events and transactions;
(7) the term "merger" includes a statutory share exchange and the
terms "merge" and "merged" have correlative meanings;
(8) the masculine gender includes the feminine and the neuter; and
(9) references to agreements and other instruments include
subsequent amendments and supplements thereto.
Certain terms used principally in certain Articles hereof are defined in
those Articles.
"Act," when used with respect to any Holders, has the meaning specified in
Section 104.
"Additional Amounts" means any additional amounts which are required by
this Indenture or by any Security, or by the terms of any Security established
pursuant to Section 301, under circumstances specified herein or therein, to be
paid by the Company in respect of certain taxes, duties, levies, imposts,
assessments or other governmental charges specified herein or therein.
"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Value" in respect of any Sale and Leaseback Transaction
means, as of the time of determination, the lesser of (i) the sale price of the
Principal Property so leased multiplied by a fraction the numerator of which is
the remaining portion of the base term of the lease included in such Sale and
Leaseback Transaction and the denominator of which is the base term of such
lease, and (ii) the total obligation (discounted to present value at the rate of
interest implicit in such transaction, as determined in good faith by the
Company, or, if it is not practicable to determine such rate, the rate of
interest specified by the terms of the Securities, in either case compounded
semi-annually) of the lessee for rental payments (other than amounts required to
be paid on account of property taxes as well as maintenance, repairs, insurance,
water rates and other items that do not constitute payments for property rights)
during the remaining portion of the base term of the lease included in such Sale
and Leaseback Transaction.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 611 to act on behalf of the Trustee to authenticate Securities of one
or more series.
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"Authorized Newspaper" means a newspaper, in an official language of the
place of publication or in the English language, customarily published on each
day that is a Business Day in the place of publication, whether or not published
on days that are not Business Days in the place of publication, and of general
circulation in each place in connection with which the term is used or in the
financial community of each 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 newspapers in the same place meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"Bankruptcy Laws" means the federal Bankruptcy Code, Title 11 of the United
States Code or any similar federal or state law for the relief of debtors.
"Bearer Security" means any Security in the form established pursuant to
Section 201 which is payable to bearer.
"Board of Directors" means either the board of directors of the Company or
any committee of that board duly authorized to act generally or in any
particular respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions, 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, delivered to the Trustee.
"Business Day" means, unless otherwise specified with respect to the
Securities of any series pursuant to Section 301, any day other than a Saturday,
Sunday or other day on which banking institutions in The City of
New York are
authorized or obligated by law, regulation or executive order to close; provided
that such term shall mean, when used with respect to any payment of principal
of, or premium or interest, if any, on, or Additional Amounts with respect to,
the Securities of any series to be made at any Place of Payment for such
Securities, unless otherwise specified pursuant to Section 301 with respect to
such Securities, any day other than a Saturday, Sunday or other day on which
banking institutions in such Place of Payment are authorized or obligated by
law, regulation or executive order to close.
"Commission" means the U.S. Securities and Exchange Commission, as from
time to time constituted, or, if at any time after the execution of this
Indenture such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing such duties at
such time.
"Common Stock" includes any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person and any other obligor upon the Securities.
3
"Company Request" and "Company Order" mean, respectively, a written request
or order, as the case may be, signed in the name of the Company by the Chairman,
the Chief Executive Officer, the President (if any), the Chief Financial
Officer, a Vice President, the Treasurer or an Assistant Treasurer of the
Company, and delivered to the Trustee.
"Consolidated Net Tangible Assets" of the Company means the aggregate
amount of the assets (less applicable reserves and other properly deductible
items) of the Company and its Subsidiaries after deducting therefrom (1) all
current liabilities (excluding any indebtedness for money borrowed having a
maturity of less than 12 months from the date of the most recent consolidated
balance sheet of the Company but which by its terms is renewable or extendable
beyond 12 months from such date at the option of the borrower) of the Company
and its Subsidiaries and (2) all goodwill, trade names, patents, unamortized
debt discount and expense and any other like intangibles of the Company and its
Subsidiaries, all as set forth on the most recent consolidated balance sheet of
the Company and computed in accordance with GAAP.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community or
(ii) any currency unit or composite currency for the purposes for which it was
established.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which at any particular time this Indenture shall be administered,
which office at the date hereof is located at 000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx,
XX 00000, Attention: Corporate Trust Administration, and as of August 11, 2003,
will be located at 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, XX 00000, Attention:
Corporate Trust Administration.
"Corporation" and "corporation" includes corporations, associations,
companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency" means, with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, U.S. Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means U.S. Dollars.
"CUSIP number" means the alphanumeric designation assigned to a Security by
Standard & Poor's, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to any Security issuable or issued in the
form of one or more global Securities, the Person designated as depository by
the Company in or pursuant to this Indenture, and, unless otherwise provided
with respect to any Security, any successor to such
4
Person. If at any time there is more than one such Person, "Depository" shall
mean, with respect to any Securities, the depository which has been appointed
with respect to such Securities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the U.S. Securities Exchange Act of 1934 or any
successor thereto, in each case, as amended from time to time.
"Foreign Currency" means any currency, currency unit or composite currency
issued by the government of one or more countries other than the United States
of America or by any recognized confederation or association of such government.
"GAAP" and "generally accepted accounting principles" mean, unless
otherwise specified with respect to any series of Securities pursuant to Section
301, such accounting principles generally accepted in the United States of
America as in effect from time to time, including those principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect from time to time.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the other government or governments in the
confederation which issued the Foreign Currency in which the principal of or any
premium or interest on the relevant Security or any Additional Amounts in
respect thereof shall be payable, in each case where the payment or payments
thereunder are supported by the full faith and credit of such government or
governments or (ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America or such
other government or governments, in each case where the timely payment or
payments thereunder are unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government or
governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of or other
amount with respect to the Government Obligation evidenced by such depository
receipt.
"Holder," in the case of any Registered Security, means the Person in whose
name such Security is registered in the Security Register and, in the case of
any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indebtedness" means (without duplication), with respect to any Person, (i)
every obligation of such Person for money borrowed, (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) every reimbursement obligation of
5
such Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person and (iv) every obligation of
the type referred to in clauses (i) through (iii) above of another Person the
payment of which such Person has guaranteed or is responsible or liable for,
directly or indirectly, as obligor, guarantor or otherwise (but only, in the
case of this clause (iv), to the extent such Person has guaranteed or is
responsible or liable for such obligations).
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and, with
respect to any Security, by the terms and provisions of such Security and any
Coupon appertaining thereto established pursuant to Section 301 (as such terms
and provisions may be amended pursuant to the applicable provisions hereof),
provided, however, that, if at any time more than one Person is acting as
Trustee under this instrument, "Indenture" shall mean, with respect to any one
or more series of Securities for which such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of those particular
series of Securities for which such Person is Trustee established pursuant to
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest," with respect to any Original Issue Discount Security which by
its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date," with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 116.
"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance or other security arrangement of any kind or nature whatsoever on or
with respect to such property or assets (including any conditional sale or other
title retention agreement having substantially the same economic effect as any
of the foregoing).
"Maturity," with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture or such Security, whether
at the Stated Maturity or by declaration of acceleration, upon redemption or at
the option of the Company, upon repurchase or repayment at the option of the
Holder or otherwise, and includes a Redemption Date for such Security and a date
fixed for the repurchase or repayment of such Security at the option of the
Holder.
"Net Available Proceeds" from any Sale and Leaseback Transaction by any
Person means cash or readily marketable cash equivalents received (including by
way of sale or
6
discounting of a note, installment receivable or other receivable, but excluding
any other consideration received in the form of assumption by the acquiree of
Indebtedness or obligations relating to the properties or assets that are the
subject of such Sale and Leaseback Transaction or received in any other noncash
form) therefrom by such Person, net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses incurred and all federal,
state, provincial, foreign and local taxes required to be accrued as a liability
as a consequence of such Sale and Leaseback Transaction; (ii) all payments made
by such Person or its Subsidiaries on any Indebtedness which is secured in whole
or in part by any such properties and assets in accordance with the terms of any
Lien upon or with respect to any such properties and assets or which must, by
the terms of such Lien, or in order to obtain a necessary consent to such Sale
and Leaseback Transaction or by applicable law, be repaid out of the proceeds
from such Sale and Leaseback Transaction; and (iii) all distributions and other
payments made to minority interest holders in Subsidiaries of such Person or
joint ventures as a result of such Sale and Leaseback Transaction.
"
New York Banking Day" has the meaning specified in Section 116.
"Office" or "Agency," with respect to any Securities, means an office or
agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 1002 or, to the
extent designated or required by Section 1002 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the Chairman, the
Chief Executive Officer, the President (if any), the Chief Financial Officer or
a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company, that complies with the requirements of
Section 102 and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee, that complies with the requirements of Section 102.
"Original Issue Discount Security" means a Security issued pursuant to this
Indenture which provides for an amount less than the principal face amount
thereof to be due and payable upon declaration of acceleration pursuant to
Section 502.
"Outstanding," when used with respect to any Securities, means, as of the
date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or the Security
Registrar or delivered to the Trustee or the Security Registrar for
cancellation;
(b) any such Security for whose payment at the Maturity thereof money in
the necessary amount or, to the extent that such Security is payable
at such Maturity in shares of Common Stock or other securities or
property, Common Stock or such other securities or property in the
necessary
7
amount, together with, if applicable, cash in lieu of fractional
shares or securities has been theretofore deposited pursuant hereto
(other than pursuant to Section 402) with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities and any Coupons appertaining
thereto, 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;
(c) any such Security with respect to which the Company has effected
defeasance or covenant defeasance pursuant to Section 402, except to
the extent provided in Section 402;
(d) any such Security which has been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless there
shall have been presented to the Trustee proof satisfactory to it that
such Security is held by a bona fide purchaser in whose hands such
Security is a valid obligation of the Company; and
(e) any such Security converted or exchanged as contemplated by this
Indenture into Common Stock or other securities or property, if the
terms of such Security provide for such conversion or exchange
pursuant to Section 301;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 502 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed Outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency that may be
counted in making such determination and that shall be deemed Outstanding for
such purposes shall be the U.S. Dollar equivalent, determined on the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the U.S. Dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (i)
above) of such Security, and (iv) 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 making any such
determination or relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a
8
Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned which shall have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Trustee (A)
the pledgee's right so to act with respect to such Securities and (B) that the
pledgee is not the Company or any other obligor upon the Securities or any
Coupons appertaining thereto or an Affiliate (other than a Trust) of the Company
or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Person" and "person" mean any individual, corporation, business trust,
partnership, joint venture, joint-stock company, limited liability company,
association, company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment," with respect to any Security, means the place or places
where the principal of, or any premium or interest on, or any Additional Amounts
with respect to such Security are payable as provided in or pursuant to this
Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Principal Property" means any real property or any permanent improvement
thereon located in the United States owned by the Company or any of its
Subsidiaries, including, without limitation, any timber property, warehouse,
manufacturing or processing plant, building, structure or other facility (or any
portion thereof, and any equipment located at or comprising a part of any such
property) having a net book value, as of the date of determination, in excess of
1.0% of Consolidated Net Tangible Assets.
"Redemption Date," with respect to any Security or portion thereof to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price," with respect to any Security or portion thereof to be
redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to Section
201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Registered Security
on any Interest Payment Date therefor means the date, if any, specified in or
pursuant to this Indenture or such Security as the record date for the payment
of such interest.
9
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office and also means, with respect to a particular corporate trust
matter, any other officer or employee of the Trustee to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means any Subsidiary of the Company in which (a)
the Company's and the Company's other Subsidiaries' aggregate investments in and
advances to such Subsidiary exceed 10% of the total assets of the Company and
the Company's Subsidiaries consolidated as of the end of the most recently
completed fiscal year; or (b) the Company's and the Company's other
Subsidiaries' proportionate share of the total assets of such Subsidiary exceeds
10% of the total assets of the Company and the Company's Subsidiaries
consolidated as of the end of the most recently completed fiscal year; or (c)
the Company's and the Company's other Subsidiaries' equity in the income from
continuing operations before taxes, extraordinary items and cumulative effect of
a change in accounting principle of such Subsidiary exceeds 10% of such income
of the Company and the Company's Subsidiaries consolidated for the most recently
completed fiscal year.
"Sale and Leaseback Transaction" of any Person means an arrangement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such person of any Principal Property that, more than 12
months after (a) the completion of the acquisition, construction, development or
improvement of such Principal Property or (b) the placing in operation of such
Principal Property or of such Principal Property as so constructed, developed or
improved, has been or is being sold, conveyed, transferred or otherwise disposed
of by such person to such lender or investor or to any person to whom funds have
been or are to be advanced by such lender on the security of such Principal
Property; PROVIDED that the term of such arrangement, as of any date (the
"measurement date"), shall end on the date of the last payment of rent or any
other amount due under such arrangement on or prior to the first date after the
measurement date on which such arrangement may be terminated by the lessee, at
its sole option without payment of a penalty.
"Securities Act" means the U.S. Securities Act of 1933 or any successor
thereto, in each case, as amended from time to time.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of indebtedness, as the case may
be, authenticated and delivered under this Indenture; PROVIDED, HOWEVER, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities," with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Trustee pursuant to Section 307.
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"Stated Maturity," with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
"Subsidiary" of any Person means a Person more than 50% of the outstanding
Voting Stock of which is owned, directly or indirectly, by such Person or by one
or more other Subsidiaries of such Person or by such Person and one or more
Subsidiaries thereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
and any reference herein to the Trust Indenture Act or a particular provision
thereof shall mean such Act or provision, as the case may be, as amended or
replaced from time to time or as supplemented from time to time by rules or
regulations adopted by the Commission under or in furtherance of the purposes of
such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such with respect to
one or more series of Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean each Person who is then a Trustee
hereunder; PROVIDED, HOWEVER, that if at any time there is more than one such
Person, "Trustee" shall mean each such Person and as used with respect to the
Securities of any series shall mean the Trustee with respect to the Securities
of such series.
"United States" and "U.S." means the United States of America (including
the states thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction; and the term "United
States of America" means the United States of America.
"U.S. Dollars," "U.S.$," "Dollars" and "$" mean, unless otherwise expressly
provided pursuant to Section 301 with respect to any series of Securities, a
dollar or other equivalent unit of legal tender for payment of public or private
debts in the United States of America.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President."
"Voting Stock" means stock (or similar interests) of the class or classes
having general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of a corporation
(irrespective of whether or not at the time stock (or similar interests) of any
other class or classes shall have or might have voting power by reason of the
happening of any contingency).
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in or pursuant to this Indenture,
upon any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all
11
such conditions precedent, if any, have been complied with, except that, in the
case of any such application or request as to which the furnishing of such
documents or any of them is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Each Officers' Certificate or Opinion of Counsel with respect to compliance
with a covenant or condition provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
opinion with respect to the matters upon which his certificate or opinion is
based is erroneous. Any such Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company, a governmental official or officers
or any other Person or Persons, stating that the information with respect to
such factual matters is in the possession of the Company unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate,
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
12
Section 104. ACTS OF HOLDERS.
(1) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by or pursuant to this Indenture to be made, 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, but only if, Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
made, given or taken by Holders of Securities of such series may, alternatively,
be embodied in and evidenced by the record of Holders of Securities of such
series voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee and
the Company and any agent of the Trustee or 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 1506.
Without limiting the generality of this Section 104, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a Depository that
is a Holder of a global Security, may make, give or take, by a proxy or proxies,
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other Act provided in or pursuant to this Indenture
or the Securities to be made, given or taken by Holders, and a Depository that
is a Holder of a global Security may provide its proxy or proxies to the
beneficial owners of interests in any such global Security through such
Depository's standing instructions and customary practices.
(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section 104.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary reasonably acceptable to the Company,
wherever situated, if such certificate shall be deemed by the Company and the
Trustee
13
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 Company and the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(i) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (ii) such Bearer Security is produced
to the Trustee by some other Person, or (iii) such Bearer Security is
surrendered in exchange for a Registered Security, or (iv) such Bearer Security
is no longer Outstanding. The ownership, principal amount and serial numbers of
Bearer Securities held by the Person so executing such instrument or writing and
the date of the commencement and the date of the termination of holding the same
may also be proved in any other manner which the Company and the Trustee deem
sufficient.
(5) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to), by
Board Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act. 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
Registered Securities of record at the close of business on such record date
shall be deemed to be Holders for the purpose of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders of Registered Securities shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
(6) Any request, demand, authorization, direction, notice, consent, waiver
or other Act by the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee, any Security Registrar, any
Paying Agent or the Company in reliance thereon, whether or not notation of such
Act is made upon such Security.
Section 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed,
14
first-class postage prepaid, to the Company addressed to the attention of
its Treasurer at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished
in writing to the Trustee by the Company.
Section 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided in or pursuant to this Indenture,
where this Indenture provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City of
New York and, if such Securities are then listed on any stock exchange
outside the United States, in an Authorized Newspaper in such city as the
Company shall advise the Trustee that such stock exchange so requires, on a
Business Day at least twice, the first such publication to be not earlier
than the earliest date and the second such publication not later than the
latest date prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder 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. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
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 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 mailed to
Holders of Registered Securities as provided above.
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 of Securities 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.
15
Section 107. LANGUAGE OF NOTICES.
Any request, demand, authorization, direction, notice, consent, election or
waiver required or permitted under this Indenture shall be in the English
language, except that, if the Company so elects, any published notice may be in
an official language of the country of publication.
Section 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 109. 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 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture, any Security or any Coupon shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not, to the fullest extent permitted by law,
in any way be affected or impaired thereby.
Section 112. BENEFITS OF INDENTURE.
Nothing in this Indenture, any Security or any Coupon, express or implied,
shall give to any Person, other than the parties hereto, any Security Registrar,
any Paying Agent and their successors hereunder and the Holders of Securities or
Coupons, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 113. GOVERNING LAW.
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of
New York applicable to
agreements made or instruments entered into and, in each case, performed in said
State.
Section 114. LEGAL HOLIDAYS.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of, or any other day on which a payment is due with respect to, any
Security shall be a day which is not a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture, any Security or
16
any Coupon other than a provision in any Security or Coupon or in the Board
Resolution, Officers' Certificate or supplemental indenture establishing the
terms of any Security that specifically states that such provision shall apply
in lieu hereof) payment need not be made at such Place of Payment on such date,
but such payment may be made on the next succeeding day that is a Business Day
at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, at the Stated Maturity or Maturity or on any such other
payment date, as the case may be, and no interest shall accrue on the amount
payable on such date or at such time for the period from and after such Interest
Payment Date, Stated Maturity, Maturity or other payment date, as the case may
be, to the next succeeding Business Day.
Section 115. COUNTERPARTS.
This Indenture may be executed in several counterparts, each of which shall
be an original and all of which shall constitute but one and the same
instrument.
Section 116. JUDGMENT CURRENCY.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that: (a) if, for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, or Additional Amounts on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with the normal banking procedures the Trustee could
purchase in The City of
New York the Required Currency with the Judgment
Currency on the
New York Banking Day preceding that on which a final
unappealable judgment is given and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
into in accordance with clause (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, "
New York Banking
Day" means any day except a Saturday, Sunday or a legal holiday in The City of
New York or a day on which banking institutions in The City of
New York are
authorized or obligated by law, regulation or executive order to be closed. The
provisions of this Section 116 shall not be applicable with respect to any
payment due on a Security which is payable in Dollars.
Section 117. EXTENSION OF PAYMENT DATES.
In the event that (i) the terms of any Security or Coupon appertaining
thereto established in or pursuant to this Indenture permit the Company or any
Holder thereof to extend the date on which any payment of principal of, or
premium, if any, or interest, if any, on, or Additional Amounts, if any, with
respect to such Security or Coupon is due and payable and (ii) the due date for
any such payment shall have been so extended, then all references herein to the
Stated
17
Maturity of such payment (and all references of like import) shall be deemed to
refer to the date as so extended.
Section 118. IMMUNITY OF STOCKHOLDERS, DIRECTORS, OFFICERS AND AGENTS OF
THE COMPANY.
No recourse under or upon any obligation, covenant or agreement contained
in this Indenture, or in any Security, or because of any indebtedness evidenced
thereby, shall be had against any past, present or future stockholder, employee,
officer, director or agent, as such, of the Company or of any predecessor or
successor, either directly or through the Company or any predecessor or
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders and as part of the consideration for
the issue of the Securities.
ARTICLE TWO
SECURITIES FORMS
Section 201. FORMS GENERALLY.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Board Resolution and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, shall
have such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by or pursuant to this Indenture or any indenture
supplemental hereto and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officer of the Company executing
such Security or Coupon as evidenced by the execution of such Security or
Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons.
Definitive Securities and definitive Coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officer of the Company executing such Securities or Coupons,
as evidenced by the execution of such Securities or Coupons.
Section 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 611, the Trustee's certificate of authentication shall
be in substantially the following form:
18
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
U.S. Bank National Association,
as Trustee
By:
------------------------------------------------
Authorized Signatory
Section 203. SECURITIES IN GLOBAL FORM.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in global form. If Securities
of a series shall be issuable in temporary or permanent global form, any such
Security may provide that it or any number of such Securities shall represent
the aggregate amount of all Outstanding Securities of such series (or such
lesser amount as is permitted by the terms thereof) from time to time endorsed
thereon or reflected on the books and records of the Trustee and may also
provide that the aggregate amount of Outstanding Securities represented thereby
may from time to time be increased or reduced to reflect exchanges. Any
endorsement of any Security in global form to reflect the amount, or any
increase or decrease in the amount, or changes in the rights of Holders, of
Outstanding Securities represented thereby shall be made in such manner and by
such Person or Persons as shall be specified therein or pursuant to Section 301
with respect to such Security or in the Company Order to be delivered pursuant
to Section 303 or 304 with respect thereto. Subject to the provisions of Section
303 and, if applicable, Section 304, 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 pursuant to Section 301 with respect to such
Security or in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any instructions
by the Company with respect to a Security in global form shall be in writing but
need not be accompanied by or contained in an Officers' Certificate and need not
be accompanied by an Opinion of Counsel. Notwithstanding the foregoing
provisions of this paragraph, in the event a global Security is exchangeable for
definitive Securities as provided in Section 305, then, unless otherwise
provided in or pursuant to this Indenture with respect to the Securities of such
series, the Trustee shall deliver and redeliver such global Security to the
extent necessary to effect such exchanges, shall endorse such global Security to
reflect any decrease in the principal amount thereto resulting from such
exchanges and shall take such other actions, all as contemplated by Section 305.
Notwithstanding the provisions of Section 307, unless otherwise specified
in or pursuant to this Indenture or any Securities, payment of principal of, any
premium and interest on, and any Additional Amounts in respect of any Security
in temporary or permanent global form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a global Security (i) in the case of a global Security
in registered form, the Holder of such global Security in
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registered form, or (ii) in the case of a global Security in bearer form, the
Person or Persons specified pursuant to Section 301.
ARTICLE THREE
THE SECURITIES
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in one
or more series.
With respect to any Securities to be authenticated and delivered hereunder,
there shall be established in or pursuant to one or more Board Resolutions and
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of any Securities of a series,
(1) the title of the Securities of such series;
(2) any limit upon the aggregate principal amount of the Securities
of such 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 such series pursuant to Section 304, 305, 306, 905 or 1107,
upon repayment in part of any Security of such series pursuant to Article
Thirteen or upon surrender in part of any Security for conversion or
exchange into Common Stock or other securities or property pursuant to its
terms), and if such series may be reopened from time to time for the
issuance of additional Securities of such series or to establish additional
terms of such series;
(3) if such Securities are to be issuable as Registered Securities,
as Bearer Securities or alternatively as Bearer Securities and Registered
Securities, and whether the Bearer Securities are to be issuable with
Coupons, without Coupons or both, and any restrictions applicable to the
offer, sale or delivery of the Bearer Securities and the terms, if any,
upon which Bearer Securities may be exchanged for Registered Securities and
vice versa;
(4) if any of such Securities are to be issuable in global form,
when any of such Securities are to be issuable in global form and (i)
whether such Securities are to be issued in temporary or permanent global
form or both, (ii) whether beneficial owners of interests in any such
global Security may exchange such interests for Securities of the same
series and of like tenor and of any authorized form and denomination, and
the circumstances under which any such exchanges may occur, if other than
in the manner specified in Xxxxxxx 000, (xxx) the name of the Depository
with respect to any such global Security and (iv) if applicable and in
addition to the Persons specified in Section 305, the Person or Persons who
shall be entitled to make any endorsements on any such global Security and
to give the instructions and take the other actions with respect to such
global Security contemplated by the first paragraph of Section 203;
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(5) if any of such Securities are to be issuable as Bearer
Securities, the date as of which any such Bearer Security shall be dated
(if other than the date of original issuance of the first of such
Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form payable in respect of an Interest Payment
Date therefor prior to the exchange, if any, of such temporary Bearer
Security for definitive Securities shall be paid to any clearing
organization with respect to the portion of such temporary Bearer Security
held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the Persons
entitled to interest payable on such Interest Payment Date;
(7) the date or dates, or the method or methods, if any, by which
such date or dates shall be determined, on which the principal and premium,
if any, of such Securities is payable;
(8) the rate or rates at which such Securities shall bear interest,
if any, or the method or methods, if any, by which such rate or rates are
to be determined, the date or dates, if any, from which such interest shall
accrue or the method or methods, if any, by which such date or dates are to
be determined, the Interest Payment Dates, if any, on which such interest
shall be payable and the Regular Record Date, if any, for the interest
payable on Registered Securities on any Interest Payment Date, the notice,
if any, to Holders regarding the determination of interest on a floating
rate Security and the manner of giving such notice, and the basis upon
which interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan, The
City of
New York, the place or places where the principal of, any premium
and interest on or any Additional Amounts with respect to such Securities
shall be payable, any of such Securities that are Registered Securities may
be surrendered for registration of transfer or exchange, any of such
Securities may be surrendered for conversion or exchange and notices or
demands to or upon the Company in respect of such Securities and this
Indenture may be served;
(10) whether any of such Securities are to be redeemable at the
option of the Company and, if so, the date or dates on which, the period or
periods within which, the price or prices at which and the other terms and
conditions upon which such Securities may be redeemed, in whole or in part,
at the option of the Company;
(11) if the Company is obligated to redeem or purchase any of such
Securities pursuant to any sinking fund or analogous provision or at the
option of any Holder thereof and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the other
terms and conditions upon which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation, and any
provisions for the remarketing of such Securities so redeemed or purchased;
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(12) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than denominations of
U.S.$1,000 and any integral multiple thereof, and the denominations in
which any of such Securities that are Bearer Securities shall be issuable
if other than the denomination of U.S.$5,000;
(13) whether the Securities of the series will be convertible into
and/or exchangeable for Common Stock or other securities or property, and
if so, the terms and conditions upon which such Securities will be so
convertible or exchangeable, and any deletions from or modifications or
additions to this Indenture to permit or to facilitate the issuance of such
convertible or exchangeable Securities or the administration thereof;
(14) if other than the principal amount thereof, the portion of the
principal amount of any of such Securities that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion is to be determined;
(15) if other than U.S. Dollars, the Foreign Currency in which
payment of the principal of, any premium or interest on or any Additional
Amounts with respect to any of such Securities shall be payable;
(16) if the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities are to be
payable, at the election of the Company or a Holder thereof or otherwise,
in U.S. Dollars or in a Foreign Currency other than that in which such
Securities are stated to be payable, the date or dates on which, the period
or periods within which, and the other terms and conditions upon which,
such election may be made, and the time and manner of determining the
exchange rate between the Currency in which such Securities are stated to
be payable and the Currency in which such Securities or any of them are to
be paid pursuant to such election, and any deletions from or modifications
of or additions to the terms of this Indenture to provide for or to
facilitate the issuance of Securities denominated or payable, at the
election of the Company or a Holder thereof or otherwise, in a Foreign
Currency;
(17) whether the amount of payments of principal of, any premium or
interest on or any Additional Amounts with respect to such Securities may
be determined with reference to an index, formula or other method or
methods (which index, formula or method or methods may be based, without
limitation, on one or more Currencies, commodities, equity indices or other
indices), and, if so, the terms and conditions upon which and the manner in
which such amounts shall be determined and paid or payable;
(18) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to any of such
Securities (whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein), and
if Section 1010 shall be applicable with respect to any such additional
covenants;
(19) if any one or more of Section 401 relating to satisfaction and
discharge, Section 402(2) relating to defeasance or Section 402(3) relating
to covenant defeasance
22
shall not be applicable to the Securities of such series, or any covenants
in addition to or other than those specified in Section 402(3) relating to
the Securities of such series which shall be subject to covenant
defeasance, and, if the Securities of such series are subject to repurchase
or repayment at the option of the Holders thereof pursuant to Article
Thirteen, if the Company's obligation to repurchase or repay such
Securities will be subject to satisfaction and discharge pursuant to
Section 401 or to defeasance or covenant defeasance pursuant to Section
402, and, if the Holders of such Securities have the right to convert or
exchange such Securities into Common Stock or other securities or property,
if the right to effect such conversion or exchange will be subject to
satisfaction and discharge pursuant to Section 401 or to defeasance or
covenant defeasance pursuant to Section 402, and any deletions from, or
modifications or additions to, the provisions of Article Four (including
any modification which would permit satisfaction and discharge, defeasance
or covenant defeasance to be effected with respect to less than all of the
outstanding Securities of such series) in respect of the Securities of such
series;
(20) if any of such Securities are to be issuable upon the exercise
of warrants, and the time, manner and place for such Securities to be
authenticated and delivered;
(21) if any of such Securities are issuable in global form and are to
be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of certain certificates
or other documents or satisfaction of other conditions, then the form and
terms of such certificates, documents or conditions;
(22) whether and under what circumstances the Company will pay
Additional Amounts on such Securities and, if so, whether the Company will
have the option to redeem such Securities rather than pay such Additional
Amounts;
(23) if there is more than one Trustee, the identity of the Trustee
and, if not the Trustee, the identity of each Security Registrar, Paying
Agent or Authenticating Agent with respect to such Securities;
(24) the Person to whom any interest on any Registered Security of
such series shall be payable, if other than the Person in whose name the
Registered Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer Security
of such series shall be payable, if other than upon presentation and
surrender of the Coupons appertaining thereto as they severally mature, and
the extent to which, or the manner in which, any interest payable on a
temporary global Security will be paid if other than in the manner provided
in this Indenture; and
(25) any other terms of such Securities and any deletions from or
modifications or additions to this Indenture in respect of such Securities.
All Securities of any one series and all Coupons, if any, appertaining to
Bearer Securities of such series shall be substantially identical except as to
Currency of payments due thereunder, denomination and the rate of interest, or
method of determining the rate of interest, if any, Maturity, and the date from
which interest, if any, shall accrue and except as may otherwise be
23
provided by the Company in or pursuant to the Board Resolution and set forth in
the Officers' Certificate or in any indenture or indentures supplemental hereto
pertaining to such series of Securities. The terms of the Securities of any
series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon telephonic or written order of persons designated in the Board Resolution,
Officers' Certificate or supplemental indenture, as the case may be, pertaining
to such series of Securities (telephonic instructions to be promptly confirmed
in writing by such person) and that such persons are authorized to determine,
consistent with such Board Resolution, Officers' Certificate or supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Board Resolution, Officers' Certificate or supplemental
indenture. All Securities of any one series need not be issued at the same time
and, if so provided by the Company as contemplated by this Section 301, a series
may be reopened from time to time without the consent of any Holders for
issuances of additional Securities of such series or to establish additional
terms of such series of Securities.
If any of the terms of the Securities of any series shall be established by
action taken by or pursuant to a Board Resolution, the Board Resolution shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of such series.
Section 302. CURRENCY; DENOMINATIONS.
Unless otherwise provided in or pursuant to this Indenture, the principal
of, any premium and interest on and any Additional Amounts with respect to the
Securities shall be payable in U.S. Dollars. Unless otherwise provided in or
pursuant to this Indenture, Registered Securities denominated in U.S. Dollars
shall be issuable in registered form without Coupons in denominations of
U.S.$1,000 and any integral multiple thereof, and the Bearer Securities
denominated in U.S. Dollars shall be issuable in the denomination of U.S.$5,000.
Securities not denominated in U.S. Dollars shall be issuable in such
denominations as are established with respect to such Securities in or pursuant
to this Indenture.
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Securities shall be executed on behalf of the Company by its Chairman, its
President (if any), its Chief Executive Officer, its Chief Financial Officer or
one of its Vice Presidents and may (but need not) have its corporate seal or a
facsimile thereof reproduced thereon. Coupons shall be executed on behalf of the
Company by the Chairman, the President (if any), the Chief Executive Officer,
the Chief Financial Officer or any Vice President of the Company. The signature
of any of these officers on the Securities or any Coupons appertaining thereto
may be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall, to the fullest extent permitted by law, 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 or Coupons.
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At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for authentication
and, provided that the Board Resolution and Officers' Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 301 and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the Trustee
shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of
the Trust Indenture Act) shall be fully protected in relying upon, an Opinion of
Counsel to the following effect, which Opinion of Counsel may contain such
assumptions, qualifications and limitations as such counsel shall deem
appropriate:
(1) the form or forms and terms of such Securities and Coupons, if
any, have been established in conformity with Sections 201 and 301 of this
Indenture;
(2) all conditions precedent set forth in Sections 201, 301 and 303
of this Indenture to the authentication and delivery of such Securities and
Coupons, if any, appertaining thereto have been complied with and that such
Securities, and Coupons, when completed by appropriate insertions (if
applicable), executed by duly authorized officers of the Company, delivered
by duly authorized officers of the Company to the Trustee for
authentication pursuant to this Indenture, and 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
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be subject
to or limited by bankruptcy, insolvency, reorganization, moratorium,
arrangement, fraudulent conveyance, fraudulent transfer or other similar
laws relating to or affecting creditors' rights generally, and subject to
general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law); and
(3) all laws and requirements in respect of the execution and
delivery by the Company of such Securities and Coupons, if any, have been
complied with and, to the extent this Indenture is required to be qualified
under the Trust Indenture Act in connection with the issuance of such
Securities to the effect that this Indenture has been qualified under the
Trust Indenture Act.
If all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver an Opinion of Counsel at the time of issuance
of each Security (provided that the aggregate principal amount of such
Securities so issued does not exceed the aggregate principal amount of
Securities covered by the Opinion of Counsel delivered in connection with the
initial issuance of the first Securities of such series), but such opinion, with
such modifications as counsel shall deem appropriate, shall be delivered at or
before the time of issuance of the first Security of such series. After any such
first delivery, any separate request by the Company that the Trustee
authenticate Securities of such series for original issue will be deemed to be a
25
certification by the Company that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Securities continue to
have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any Bearer Security in global form shall be dated as of
the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto 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 in Section 202 or 611 executed by or on behalf of the Trustee
or by the Authenticating Agent by the manual signature of one of its authorized
signatories. Such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder. Except as permitted by Section 306 or 307 or as may
otherwise be provided in or pursuant to this Indenture, the Trustee shall not
authenticate and deliver any Bearer Security unless all Coupons appertaining
thereto then matured have been detached and cancelled.
Section 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may execute
and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof 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 or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Company 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 temporary Securities in global form, which shall be
exchanged in accordance with the provisions set forth in this Indenture or
pursuant to Section 301, if temporary Securities are issued, the Company shall
cause definitive Securities to be prepared without unreasonable delay. Except as
otherwise provided in or pursuant to this Indenture, after the preparation of
definitive Securities of the same series and containing terms and provisions
that are identical to those of any temporary Securities, such temporary
Securities shall be exchangeable for such definitive Securities upon surrender
of such temporary Securities at an Office or Agency for such Securities, without
charge to any Holder thereof. Except as otherwise provided in or pursuant to
this Indenture, upon surrender for cancellation of any one or more temporary
Securities (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 authorized
denominations of the same series and
26
containing identical terms and provisions; PROVIDED, HOWEVER, that no definitive
Bearer Security, except as provided in or pursuant to this Indenture, shall be
delivered in exchange for a temporary Registered Security; and PROVIDED,
FURTHER, that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in or
pursuant to this Indenture. Unless otherwise provided in or pursuant to this
Indenture with respect to a temporary global Security, until so exchanged the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
Section 305. REGISTRATION, TRANSFER AND EXCHANGE.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the initial Security Registrar for each series of Securities
shall be as specified in the last paragraph of Section 1002. The Company shall
have the right to remove and replace from time to time the Security Registrar
for any series of Securities; provided that no such removal or replacement shall
be effective until a successor Security Registrar with respect to such series of
Securities shall have been appointed by the Company and shall have accepted such
appointment. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to examine the Security Register for such series at all reasonable times.
There shall be only one Security Register for each series of Securities.
Except as otherwise provided in or pursuant to this Indenture, upon
surrender for registration of transfer of any Registered Security of any series
at any Office or Agency for such series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Registered Securities of the same series
denominated as authorized in or pursuant to this Indenture, of a like aggregate
principal amount bearing a number not contemporaneously outstanding and
containing identical terms and provisions.
Except as otherwise provided in or pursuant to this Indenture, at the
option of the Holder, Registered Securities of any series may be exchanged for
other Registered Securities of the same series containing identical terms and
provisions, in any authorized denominations, and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at any Office or Agency
for such series. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive.
If provided in or pursuant to this Indenture, with respect to Securities of
any series, at the option of the Holder, Bearer Securities of such series may be
exchanged for Registered Securities of such series containing identical terms,
denominated as authorized in or pursuant to this Indenture and in the same
aggregate principal amount, upon surrender of the Bearer
27
Securities to be exchanged at any Office or Agency for such series, with all
unmatured Coupons and all matured Coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured Coupon
or Coupons or matured Coupon or Coupons in default, 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 Bearer Security shall surrender
to any Paying Agent any such missing Coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; PROVIDED, HOWEVER, that, except as otherwise provided in Section
1002, interest represented by Coupons shall be payable only upon presentation
and surrender of those Coupons at an Office or Agency for such series located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such Office or Agency for such
series in exchange for a Registered Security of such 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 date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the Coupon relating
to such Interest Payment Date or proposed date of payment, as the case may be
(or, if such Coupon is so surrendered with such Bearer Security, such Coupon
shall be returned to the Person so surrendering the Bearer Security), and
interest or Defaulted Interest, as the case may be, shall 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 shall be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to Securities of
any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated by the
immediately preceding two paragraphs, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or pursuant
to this Indenture, the global Securities of any series shall be exchangeable for
definitive certificated Securities of such series only if (i) the Depository for
such global Securities notifies the Company that it is unwilling or unable to
continue as a Depository for such global Securities or at any time the
Depository for such global Securities ceases to be a clearing agency registered
as such under the Exchange Act, if so required by applicable law or regulation,
and no successor Depository for such Securities shall have been appointed within
90 days of such notification or of the Company becoming aware of the
Depository's ceasing to be so registered, as the case may be, (ii) the Company,
in its sole discretion, determines that the Securities of such series shall no
longer be represented by one or more global Securities and executes and delivers
to the Trustee a
28
Company Order to the effect that such global Securities shall be so
exchangeable, or (iii) an Event of Default has occurred and is continuing with
respect to such Securities.
If the beneficial owners of interests in a global Security are entitled to
exchange such interests for definitive Securities as the result of an event
described in clause (i), (ii) or (iii) of the preceding paragraph, 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 such form and denominations as are required by or
pursuant to this Indenture, and of the same series, containing identical terms
and in aggregate principal amount equal to the principal amount of such global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such global Security shall be surrendered from
time to time by the Depository (or its custodian) as shall be specified in the
Company Order with respect thereto (which the Company agrees to deliver), and in
accordance with instructions given to the Trustee and the Depository (which
instructions shall be in writing but need not be contained in or accompanied by
an Officers' Certificate or be accompanied by an Opinion of Counsel), as shall
be specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities as described above without charge. The Trustee shall
authenticate and make available for delivery, in exchange for each portion of
such surrendered global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor as the portion of such global Security to be exchanged, which (unless such
Securities are not issuable both as Bearer Securities and as Registered
Securities, in which case the definitive Securities exchanged for the global
Security shall be issuable only in the form in which the Securities are
issuable, as provided in or pursuant to this Indenture) shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, and
which shall be in such denominations and, in the case of Registered Securities,
registered in such names as shall be specified by the Depository, but subject to
the satisfaction of any certification or other requirements to the issuance of
Bearer Securities; provided, however, that (unless otherwise provided in or
pursuant to this Indenture) no Bearer Security delivered in exchange for a
portion of a global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly following any such exchange in part,
such global Security shall be returned by the Trustee to such Depository (or its
custodian) or such other Depository (or its custodian) referred to above in
accordance with the instructions of the Company referred to above, and the
Trustee shall endorse such global Security to reflect the decrease in the
principal amount thereof resulting from such exchange. If a Registered Security
is issued in exchange for any portion of a global Security after the close of
business at the Office or Agency for such Security where such exchange occurs on
or after (i) any Regular Record Date for such Security and before the opening of
business at such Office or Agency on the next Interest Payment Date, or (ii) any
Special Record Date for such Security and before the opening of business at such
Office or Agency on the related proposed date for payment of interest or
Defaulted Interest, as the case may be, interest shall 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 shall 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 global Security shall
be payable in accordance with the provisions of this Indenture.
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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 entitling the Holders thereof to the same benefits under this Indenture
as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, or any redemption or repayment of Securities, or any
conversion or exchange of Securities for other types of securities or property,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 905 or 1107, upon repayment or repurchase in part of
any Registered Security pursuant to Article Thirteen, or upon surrender in part
of any Registered Security for conversion or exchange into Common Stock or other
securities or property pursuant to its terms, in each case not involving any
transfer.
Except as otherwise provided in or pursuant to this Indenture, the Company
shall not be required (i) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days before
the day of the selection for redemption of Securities of like tenor and terms
and of the same series under Section 1103 and ending at the close of business on
the day of such selection, or (ii) to register the transfer of or exchange any
Registered Security, or portion thereof, so selected for redemption, except in
the case of any Registered Security to be redeemed in part, the portion thereof
not to be redeemed, or (iii) to exchange any Bearer Security so selected for
redemption except, to the extent provided with respect to such Bearer Security,
that such Bearer Security may be exchanged for a Registered Security of like
tenor and terms and of the same series, provided that such Registered Security
shall be simultaneously surrendered for redemption with written instruction for
payment consistent with the provisions of this Indenture or (iv) to issue,
register the transfer of or exchange any Security which, in accordance with its
terms, has been surrendered for repayment at the option of the Holder pursuant
to Article Thirteen and not withdrawn, except the portion, if any, of such
Security not to be so repaid.
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 306, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
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If there be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of 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 the Company's request
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen Coupon appertains with all
appurtenant Coupons not destroyed, lost or stolen, a new Security of the same
series containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in case any
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 payment of
principal of, any premium or interest on or any Additional Amounts with respect
to any Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an Office or Agency for such Securities located outside the
United States and, unless otherwise provided in or pursuant to this Indenture,
any interest on Bearer Securities and any Additional Amounts with respect to
such interest shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security, with any Coupons appertaining thereto issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen Coupon appertains
shall constitute a separate obligation of the Company, whether or not the
destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series and any
Coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to this
Indenture with respect to particular Securities or generally, shall (to the
extent lawful) be 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 307. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL AMOUNTS; RIGHTS
TO INTEREST AND CERTAIN ADDITIONAL AMOUNTS PRESERVED.
Unless otherwise provided in or pursuant to this Indenture, any interest on
and any Additional Amounts with respect to any Registered Security which shall
be payable, and are punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in
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whose name such Security (or one or more Predecessor Securities) is registered
as of the close of business on the Regular Record Date for such interest. Unless
otherwise provided in or pursuant to this Indenture, in case a Bearer Security
is surrendered in exchange for a Registered Security after the close of business
at an Office or Agency for such Security on any Regular Record Date therefor and
before the opening of business at such Office or Agency on the next succeeding
Interest Payment Date therefor, such Bearer Security shall be surrendered
without the Coupon relating to such Interest Payment Date and interest shall not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but shall be payable only to the
Holder of such Coupon when due in accordance with the provisions of this
Indenture.
Unless otherwise provided in or pursuant to this Indenture, any interest on
and any Additional Amounts with respect to any Registered Security which shall
be payable, but shall not be punctually paid or duly provided for, on any
Interest Payment Date for such Registered Security (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be 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 such
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 on or prior to the date of the proposed payment, such money when so
deposited to be held in trust for the benefit of the Person entitled to
such Defaulted Interest as in this Clause provided. Thereupon, the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to the Holder of such Registered
Security (or a Predecessor Security thereof) at his address as it appears
in the Security Register not less than 10 days prior to such Special Record
Date. The Trustee shall, in the name and at the expense of the Company
cause a similar notice to be published at least once in an Authorized
Newspaper of general circulation in the Borough of Manhattan, The City of
New York, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Person in
whose name such Registered Security (or a Predecessor Security thereof)
shall be registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2). In
case
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a Bearer Security is surrendered at the Office or Agency for such Security
in exchange for a Registered Security after the close of business at such
Office or Agency on any Special Record Date and before the opening of
business at such Office or Agency on the related proposed date for payment
of Defaulted Interest, such Bearer Security shall be surrendered without
the Coupon relating to such Defaulted Interest and Defaulted Interest shall
not be payable on such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer Security, but shall
be payable only to the Holder of such Coupon when due in accordance with
the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security 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 payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series, at the option of the Company, interest on
Registered Securities that bear interest may be paid by mailing a check to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by transfer to an account maintained by the payee with a
bank located in the United States.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a 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 in the
Security Register as the owner of such Registered Security for the purpose of
receiving payment of principal of, any premium and (subject to Sections 305 and
307) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and neither the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
neither the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No holder of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company, the
Trustee, and any agent of the Company or
33
the Trustee as the owner of such global Security for all purposes whatsoever.
None of the Company, the Trustee, any Paying Agent or the Security Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee, any Paying Agent or the Security Registrar from giving effect to
any written certification, proxy or other authorization furnished by the
applicable Depository, as a Holder, with respect to a global Security or impair,
as between such Depository and the owners of beneficial interests in such global
Security, the operation of customary practices governing the exercise of the
rights of such Depository (or its nominee) as the Holder of such global
Security.
Section 309. CANCELLATION.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be cancelled promptly by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be cancelled promptly by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by or pursuant to this Indenture. All cancelled Securities and Coupons held by
the Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of destruction to the Company, unless by a Company Order the Company
directs their return to it.
Section 310. COMPUTATION OF INTEREST.
Except as otherwise provided in or pursuant to this Indenture or in the
Securities of any series, interest on the Securities shall be computed on the
basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. SATISFACTION AND DISCHARGE.
Unless, pursuant to Section 301, the provisions of this Section 401 shall
not be applicable with respect to the Securities of any series, upon the
direction of the Company by a Company Order, this Indenture shall cease to be of
further effect with respect to any series of Securities specified in such
Company Order and any Coupons appertaining thereto, and the Trustee, on receipt
of a Company Order, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series, when
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(1) either
(a) all Securities of such series theretofore authenticated and
delivered and all Coupons appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series surrendered in
exchange for Registered Securities of such series and maturing after
such exchange whose surrender is not required or has been waived as
provided in Xxxxxxx 000, (xx) Securities and Coupons of such series
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Xxxxxxx 000, (xxx) Coupons appertaining to
Securities of such series called for redemption and maturing after the
relevant Redemption Date whose surrender has been waived as provided
in Section 1106, and (iv) Securities and Coupons of such series for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(b) all Securities of such series and, in the case of (i) or
(ii) below, if applicable, any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose, money in the Currency in which such Securities
are payable in an amount sufficient to pay and discharge the entire
indebtedness on such Securities and any Coupons appertaining thereto
not theretofore delivered to the Trustee for cancellation, including
the principal of, any premium and interest on, and, to the extent that
the Securities of such series provide for the payment of Additional
Amounts thereon and the amount of any such Additional Amounts which
are or will be payable with respect to the Securities of such series
can at the time of deposit be determined by the Company (in the
exercise by the Company of its reasonable discretion), any Additional
Amounts payable with respect to, such Securities and any Coupons
appertaining thereto, to the date of such deposit (in the case of
Securities which have become due and payable) or to the Maturity
thereof, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of such
series and any Coupons appertaining thereto; and
35
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture as to such series have been complied with.
In the event there are Securities of two or more series Outstanding
hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with
respect to Securities of such series as to which it is Trustee and if the other
conditions thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 606 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations
of the Company and the Trustee with respect to the Securities of such series
under Sections 116, 305, 306, 403, 404, 1002 and 1003 and with respect to the
payment of Additional Amounts, if any, with respect to such Securities as
contemplated by Section 1004 (including, without limitation, any further
obligations and other terms relating to the payment of any such Additional
Amounts established pursuant to Section 301 with respect to the Securities of
such series), any rights of Holders of the Securities of such series (unless
otherwise provided pursuant to Section 301 with respect to the Securities of
such series) to require the Company to repurchase or repay, and the obligation
of the Company to repurchase or repay, such Securities at the option of the
Holders pursuant to Article Thirteen hereof, and any rights of Holders of the
Securities of such series (unless otherwise provided pursuant to Section 301
with respect to the Securities of such series) to convert or exchange, and the
obligations of the Company to convert or exchange, such Securities into Common
Stock or other securities or property, shall survive.
Section 402. DEFEASANCE AND COVENANT DEFEASANCE.
(1) Unless, pursuant to Section 301, either or both of (i) defeasance of
the Securities of or within a series under clause (2) of this Section 402 or
(ii) covenant defeasance of the Securities of or within a series under clause
(3) of this Section 402 shall not be applicable with respect to the Securities
of such series, then such provisions, together with the other provisions of this
Section 402 (with such modifications thereto as may be specified pursuant to
Section 301 with respect to any Securities), shall be applicable to such
Securities and any Coupons appertaining thereto, and the Company may at its
option by Board Resolution, at any time, with respect to the Securities of or
within such series and any Coupons appertaining thereto, elect to have Section
402(2) or Section 402(3) be applied to such Outstanding Securities and any
Coupons appertaining thereto upon compliance with the conditions set forth below
in this Section 402. Unless otherwise specified pursuant to Section 301 with
respect to the Securities of any series, defeasance under clause (2) of this
Section 402 and covenant defeasance under clause (3) of this Section 402 may be
effected only with respect to all, and not less than all, of the Outstanding
Securities of any series. To the extent that the terms of any Security or Coupon
appertaining thereto established in or pursuant to this Indenture permit the
Company or any Holder thereof to extend the date on which any payment of
principal of, or premium, if any, or interest, if any, on, or Additional
Amounts, if any, with respect to such Security or Coupon is due and payable,
then unless otherwise provided pursuant to Section 301, the right to extend such
date shall terminate upon defeasance or covenant defeasance, as the case may be.
36
(2) Upon the Company's exercise of the above option applicable to this
Section 402(2) with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any Coupons appertaining thereto on the date the
conditions set forth in clause (4) of this Section 402 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Outstanding Securities and any Coupons appertaining thereto,
which shall thereafter be deemed to be "Outstanding" only for the purposes of
Section 403 and the other Sections of this Indenture referred to in clauses (i)
through (iv) of this paragraph, and to have satisfied all of its other
obligations under such Securities and any Coupons appertaining thereto and this
Indenture insofar as such Securities and any Coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of such Outstanding Securities and any Coupons appertaining thereto to
receive, solely (except as provided in clause (ii) below) from the trust fund
described in clause (4)(a) of this Section 402 and as more fully set forth in
this Section 402 and Section 403, payments in respect of the principal of (and
premium, if any) and interest, if any, on, and Additional Amounts, if any, with
respect to, such Securities and any Coupons appertaining thereto when such
payments are due, (ii) the obligations of the Company and the Trustee with
respect to such Securities under Sections 116, 305, 306, 1002 and 1003 and with
respect to the payment of Additional Amounts, if any, with respect to such
Securities as contemplated by Section 1004 (including, without limitation, any
further obligations and other terms relating to the payment of any such
Additional Amounts established pursuant to Section 301 with respect to the
Securities of such series), any rights of Holders of such Securities (unless
otherwise provided pursuant to Section 301 with respect to the Securities of
such series) to require the Company to repurchase or repay, and the obligations
of the Company to repurchase or repay, such Securities at the option of the
Holders pursuant to Article Thirteen hereof, and any rights of Holders of such
Securities (unless otherwise provided pursuant to Section 301 with respect to
the Securities of such series) to convert or exchange, and the obligations of
the Company to convert or exchange, such Securities into Common Stock or other
securities or property, (iii) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (iv) this Section 402 and Sections 403 and 404. The
Company may exercise its option under this Section 402(2) notwithstanding the
prior exercise of its option under Section 402(3) with respect to such
Securities and any Coupons appertaining thereto.
(3) Upon the Company's exercise of the above option applicable to this
Section 402(3) with respect to any Securities of or within a series, the Company
shall be released from its obligations under clause (ii) of Section 1007 and
under Sections 1005, 1006, 1008 and 1009 and, to the extent specified pursuant
to Section 301, any other covenant applicable to such Securities with respect to
such Securities and any Coupons appertaining thereto on and after the date the
conditions set forth in clause (4) of this Section 402 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any Coupons
appertaining thereto shall thereafter be deemed to be not "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with any such covenant, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that with respect to such Outstanding
Securities and any Coupons appertaining thereto, the Company may omit to comply
with, and shall have no
37
liability in respect of, any term, condition or limitation set forth in any such
Section or any such other covenant, whether directly or indirectly, by reason of
any reference elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a default or an Event of Default under Section 501(3) or 501(7) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities and Coupons appertaining thereto shall be
unaffected thereby.
(4) The following shall be the conditions to application of clause (2) or
(3) of this Section 402 to any Outstanding Securities of or within a series and
any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Section 402 applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
Coupons appertaining thereto, (1) an amount in U.S. Dollars or in such
Foreign Currency in which such Securities and any Coupons appertaining
thereto are then specified as payable at Stated Maturity or, if such
defeasance or covenant defeasance is to be effected in compliance with
subsection (e) below, on the relevant Redemption Date, as the case may be,
or (2) Government Obligations applicable to such Securities and Coupons
appertaining thereto (determined on the basis of the Currency in which such
Securities and Coupons appertaining thereto are then specified as payable
at Stated Maturity or, if such defeasance or covenant defeasance is to be
effected in compliance with subsection (e) below, on the relevant
Redemption Date, as the case may be) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment of
principal of (and premium, if any) and interest, if any, on such Securities
and any Coupons appertaining thereto, money in an amount, or (3) a
combination thereof, in any case, in an amount, sufficient, without
consideration of any reinvestment of such principal and interest, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (y) the principal of (and
premium, if any) and interest, if any, on, and, to the extent that such
Securities provide for the payment of Additional Amounts thereon and the
amount of any such Additional Amounts which are or will be payable with
respect to the Securities of such series can at the time of deposit be
determined by the Company (in the exercise by the Company of its reasonable
discretion), any Additional Amounts payable with respect to, such
Outstanding Securities and any Coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest or the
applicable Redemption Date, as the case may be, and (z) any mandatory
sinking fund payments or analogous payments applicable to such Outstanding
Securities and any Coupons appertaining thereto on the day on which such
payments are due and payable in accordance with the terms of this Indenture
and of such Securities and any Coupons appertaining thereto.
38
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company or any
Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities and
any Coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit, and, solely in the case of defeasance under
Section 402(2), no Event of Default with respect to such Securities and any
Coupons appertaining thereto under clause (6) or (7) of Section 501 or
event which with notice or lapse of time or both would become an Event of
Default with respect to such Securities and any Coupons appertaining
thereto under clause (6) or (7) of Section 501 shall have occurred and be
continuing at any time during the period ending on and including the 91st
day after the date of such deposit (it being understood that this condition
to defeasance under Section 402(2) shall not be deemed satisfied until the
expiration of such period).
(d) In the case of defeasance pursuant to Section 402(2), the Company
shall have delivered to the Trustee an Opinion of Counsel of United States
independent counsel reasonably acceptable to the Trustee stating that (x)
the Company has received from, or there has been published by, the United
States Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in applicable United States federal
income tax law, in either case to the effect that, and based thereon such
opinion of independent counsel shall confirm that, the Holders of such
Outstanding Securities and any Coupons appertaining thereto will not
recognize income, gain or loss for United States federal income tax
purposes as a result of such defeasance and will be subject to United
States federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had not
occurred; or, in the case of covenant defeasance pursuant to Section
402(3), the Company shall have delivered to the Trustee an Opinion of
Counsel of independent counsel reasonably acceptable to the Trustee to the
effect that the Holders of such Outstanding Securities and any Coupons
appertaining thereto will not recognize income, gain or loss for United
States federal income tax purposes as a result of such covenant defeasance
and will be subject to United States federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(e) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance or covenant defeasance, as the case may be,
under this Indenture have been complied with.
(f) If the monies or Government Obligations or combination thereof, as
the case may be, deposited under clause (a) above are sufficient to pay the
principal of, and premium, if any, and interest, if any, on and, to the
extent provided in such clause (a), Additional Amounts with respect to,
such Securities provided such Securities are redeemed on a particular
Redemption Date, the Company shall have given the Trustee irrevocable
instructions to redeem such Securities on such date and to provide notice
of such redemption to Holders as provided in or pursuant to this Indenture.
39
(g) Notwithstanding any other provisions of this Section 402(4), such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, if, after a deposit referred to in Section 402(4)(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 402(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 402(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on, and
Additional Amounts, if any, with respect to, such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on (x) in the
case of payments made pursuant to clause (a) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to
each payment date, or (y) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as feasible)
at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge, imposed on or assessed against the Government Obligations
deposited pursuant to this Section 402 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any Coupons
appertaining thereto.
Anything in this Section 402 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in clause (4)(a) of this Section 402 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Section 402.
Section 403. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all money
and, if applicable, Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee -- collectively for purposes of this
Section 403, the "Trustee") pursuant to Section 401 or Section 402 in respect of
any Outstanding Securities of any series and any Coupons appertaining thereto
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any Coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any Coupons appertaining
40
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such money and
Government Obligations need not be segregated from other funds except to the
extent required by law.
Section 404. REINSTATEMENT.
If the Trustee (or other qualifying trustee appointed pursuant to Section
402(4)(a)) or any Paying Agent is unable to apply any moneys or Government
Obligations deposited pursuant to Section 401(1) or 402(4)(a) to pay any
principal of or premium, if any, or interest, if any, on or Additional Amounts,
if any, with respect to the Securities of any series by reason of any legal
proceeding or any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no such deposit had occurred, until
such time as the Trustee (or other qualifying trustee) or Paying Agent is
permitted to apply all such moneys and Government Obligations to pay the
principal of and premium, if any, and interest, if any, on and Additional
Amounts, if any, in respect of the Securities of such series as contemplated by
Sections 401 or 402 as the case may be, and Section 403; PROVIDED, HOWEVER, that
if the Company makes any payment of the principal of or premium, if any, or
interest if any, on or Additional Amounts, if any, in respect of the Securities
of such series following the reinstatement of its obligations as aforesaid, the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the funds held by the Trustee (or other qualifying
trustee) or Paying Agent.
ARTICLE FIVE
REMEDIES
Section 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) unless
such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such series pursuant to this Indenture:
(1) default in the payment of any principal of or premium, if any,
on, or any Additional Amounts payable in respect of any principal of or
premium, if any, on, any of the Securities of such series when due (whether
at Maturity or otherwise and whether payable in cash or in shares of Common
Stock or other securities or property); or
(2) default in the payment of any interest on, or any Additional
Amounts payable in respect of any interest on, any of the Securities of
such series or any Coupon appertaining thereto when such interest or such
Additional Amounts, as the case may be, become due and payable, and
continuance of such default for a period of 30 days; or
41
(3) default by the Company in the performance, or breach by the
Company, of any covenant in this Indenture or any Security of such series
(other than a covenant for which the consequences of nonperformance or
breach are addressed elsewhere in this Section 501 or a covenant which has
expressly been included in this Indenture, whether or not by means of a
supplemental indenture, solely for the benefit of Securities of a series
other than such series), and continuance of such default or breach for a
period of 90 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of such series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(4) default in the payment after final maturity of any bond, note,
debenture or other evidence of Indebtedness of the Company in an aggregate
principal amount exceeding U.S.$30,000,000 (or the equivalent thereof in
any other currency or currency unit), or default under any bond, note,
debenture or other evidence of Indebtedness of the Company or under any
Lien, indenture or other instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness of the Company,
which results in the acceleration of such Indebtedness in an aggregate
principal amount exceeding U.S.$30,000,000 (or the equivalent thereof in
any other currency or currency unit), but only if such Indebtedness is not
discharged or such acceleration is not rescinded or annulled within 30 days
after notice to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of such series; or
(5) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment,
compromise or composition of or in respect of the Company under the
Bankruptcy Laws, or appointing a custodian, receiver, interim receiver,
receiver and manager, conservator, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or of any
substantial part of its property, or ordering the winding up, dissolution
or liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 90 consecutive days; or
(6) the commencement by the Company of proceedings to be adjudicated
a bankrupt or insolvent, or the consent by the Company to the commencement
of bankruptcy, insolvency or other similar proceedings against the Company,
or the filing by the Company of a proposal or petition or answer or consent
seeking reorganization or relief under any Bankruptcy Law, or the consent
by the Company to the filing of, or giving by the Company of notice of the
intention to file, any such proposal or petition or answer or consent or to
the appointment of a custodian, receiver, interim receiver, receiver and
manager, conservator, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of its
property, or the making by the Company of an assignment for the benefit of
creditors, or the committing by the Company of an act of bankruptcy under
any Bankruptcy Law, or the admission by the Company in writing of its
inability to pay its debts generally as they become due or
42
otherwise admitting its insolvency, or the taking possession by any
encumbrancer of any substantial part of the property of the Company, or the
seeking by the Company of a stay of proceedings against it or proposing or
giving a notice of intention to propose by it a compromise, arrangement or
reorganization of any of its debts or obligations under any Bankruptcy Law;
or
(7) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series occurs and
is continuing, then either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities of such series may
declare the principal of all the Securities of such series, or such lesser
amount as may be provided for in the Securities of such series, and accrued and
unpaid interest, if any, thereon to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by the Holders), and upon
any such declaration such principal or such lesser amount, as the case may be,
and such accrued and unpaid interest shall become immediately due and payable.
If an Event of Default specified in Section 501(5) or (6) with respect to
Securities at the time Outstanding occurs and is continuing, then in every such
case the principal of, Additional Amounts, if any, and any accrued interest on
such Securities then Outstanding shall become immediately due and payable.
At any time after Securities of any series have been accelerated and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of such
series, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum of
money sufficient to pay (or, to the extent that the terms of the Securities
of such series established pursuant to Section 301 expressly provide for
payment to be made in shares of Common Stock or other securities or
property, shares of Common Stock or other securities or property, together
with cash in lieu of fractional shares or securities, sufficient to pay)
(a) all overdue installments of any interest on any Securities
of such series and any Coupons appertaining thereto which have become
due otherwise than by such declaration of acceleration and any
Additional Amounts with respect thereto,
(b) the principal of and any premium on any Securities of such
series which have become due otherwise than by such declaration of
acceleration and any Additional Amounts with respect thereto and, to
the extent permitted by applicable law, interest thereon at the rate
or respective rates, as the case may be, provided for in or with
respect to such Securities, or, if no such rate or rates are so
43
provided, at the rate or respective rates, as the case may be, of
interest borne by such Securities,
(c) to the extent permitted by applicable law, interest upon
installments of any interest, if any, which have become due otherwise
than by such declaration of acceleration and any Additional Amounts
with respect thereto at the rate or respective rates, as the case may
be, provided for in or with respect to such Securities, or, if no such
rate or rates are so provided, at the rate or respective rates, as the
case may be, of interest borne by such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee
under Section 606; and
(2) all Events of Default with respect to Securities of such series
other than the non-payment of the principal of, any premium and interest
on, and any Additional Amounts with respect to Securities of such series
which shall have become due solely by such declaration of acceleration,
shall have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any interest on, or any
Additional Amounts payable in respect of any interest on, any Security or
any Coupon appertaining thereto when such interest or Additional Amounts,
as the case may be, shall have become due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of any principal of or premium,
if any, on, or any Additional Amounts payable in respect of any principal
of or premium, if any, on, any Security at its Maturity, or
(3) default is made in the deposit of any sinking fund payment when
due,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent permitted by applicable law, upon any overdue
installments of interest and Additional Amounts at the rate or respective rates,
as the case may be, provided for in or with respect to such Securities or, if no
such rate or rates are so provided, at the rate or respective rates, as the case
may be, of interest borne by such Securities, and, in addition thereto, such
further amount of money as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses,
44
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 606.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities and any Coupons appertaining thereto, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
Coupons appertaining thereto by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 504. 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 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 any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of the
principal and any premium, interest and Additional Amounts owing and unpaid
in respect of the Securities and any Coupons appertaining thereto and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders of Securities or any
Coupons allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any 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 or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
45
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any 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 any Coupon in any such proceeding.
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES
OR COUPONS.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of a
Security or Coupon in respect of which such judgment has been recovered.
Section 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article with respect to
the Securities of any series shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal, or any premium, interest or Additional Amounts,
upon presentation of such Securities or the Coupons, if any, appertaining
thereto, 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 payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and any Coupons for principal and any premium, interest and
Additional Amounts in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any
kind, according to the aggregate amounts due and payable on such Securities
and Coupons for principal and any premium, interest and Additional Amounts;
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 507. LIMITATIONS ON SUITS.
No Holder of any Security of any series or any Coupons appertaining thereto
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of such
series;
46
(2) the Holders of not less than 25% in aggregate principal amount
of the Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND
ANY PREMIUM, INTEREST AND ADDITIONAL AMOUNTS.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or Coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of, any premium, if any, and (subject to
Sections 305 and 307) interest, if any, on and any Additional Amounts with
respect to such Security or such Coupon, as the case may be, on the respective
Stated Maturity or Maturities therefor specified in such Security or Coupon (or,
in the case of redemption, on the Redemption Date or, in the case of repayment
pursuant to Article Thirteen hereof at the option of such Holder if provided in
or pursuant to this Indenture, on the date such repayment is due) and, in the
case of any Security which is convertible into or exchangeable for other
securities or property, to convert or exchange, as the case may be, such
Security in accordance with its terms, and to institute suit for the enforcement
of any such payment and any such right to convert or exchange, and such right
shall not be impaired without the consent of such Holder.
Section 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or a Coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
47
Section 510. RIGHTS AND REMEDIES CUMULATIVE.
To the extent permitted by applicable law and except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities or Coupons in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to each and every
Holder of a Security or a Coupon is intended to be exclusive of any other right
or remedy, and every right and remedy, to the extent permitted by law, shall be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not, to the
extent permitted by law, prevent the concurrent assertion or employment of any
other appropriate right or remedy.
Section 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon to exercise any right or remedy accruing upon any Event of Default shall,
to the extent permitted by applicable law, impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to any
Holder of a Security or a Coupon may, to the extent permitted by applicable law,
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
Section 512. CONTROL BY HOLDERS OF SECURITIES.
The Holders of a majority in aggregate principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Securities of any series,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of the
other Holders of Securities of such series not joining in such action.
Section 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
(1) a default in the payment of the principal of, any premium or
interest on, or any Additional Amounts with respect to, any Security of
such series or any Coupons appertaining thereto, or
48
(2) in the case of any Securities which are convertible into or
exchangeable for Common Stock or other securities or property, a default in
any such conversion or exchange, or
(3) a default in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. WAIVER OF USURY, STAY OR EXTENSION LAWS.
The Company covenants that (to the extent that it may lawfully do so) 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 law or
any other law wherever enacted, now or at any time hereafter in force, which
would prohibit or forgive the Company from paying all or any portion of the
principal of or premium, if any, or interest, if any on or Additional Amounts,
if any, with respect to any Securities as contemplated herein and therein or
which may affect the covenants or the performance of this Indenture or the
Securities; and the Company (to the extent that it may lawfully do so) expressly
waives all benefit or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
Section 515. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
disbursements, against any party litigant in such suit having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 515 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of Outstanding Securities of any
series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest, if any, on or
Additional Amounts, if any, with respect to any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date, and, in the case of repayment at
the option of the Holder pursuant to Article Thirteen hereof, on or after the
date for repayment) or for the enforcement of the right, if any, to convert or
exchange any Security into Common Stock or other securities or property in
accordance with its terms.
49
ARTICLE SIX
THE TRUSTEE
Section 601. CERTAIN RIGHTS OF TRUSTEE.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any Officers' Certificate, Opinion of Counsel,
Company Order, resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
coupon or other paper or document reasonably believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or a Company Order (in each
case, other than delivery of any Security, together with any Coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence shall be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers' Certificate or an Opinion
of Counsel;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the Holders of Securities of any series or
any Coupons appertaining thereto pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any Officers' Certificate, Opinion of
Counsel, Company Order, resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine,
during business hours and upon reasonable notice, the books, records and
premises of the Company, personally or by agent or attorney;
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(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(8) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless the Trustee or such
Responsible Officer was negligent in ascertaining the pertinent facts;
(9) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith and without negligence in accordance
with a direction received by it from the Holders of the Securities of any
series given in accordance with this Indenture;
(10) the Trustee shall not be liable for interest on any monies or
assets received by it hereunder except as may be agreed in writing with the
Company and except as set forth in Article Four hereof;
(11) delivery of reports, information and documents to the Trustee
under Section 704 of this Indenture shall not constitute constructive
notice to the Trustee of any information contained therein or determinable
from information contained therein, including the Company's compliance with
any of their covenants herein; and
(12) except with respect to Section 1001, the Trustee shall have no
duty to inquire as to the performance of the Company with respect to the
covenants contained in Article Ten. In addition, the Trustee shall not be
deemed to have knowledge of an Event of Default except (i) any Event of
Default occurring pursuant to Section 501(1) or 501(2), or (ii) any Event
of Default of which the Trustee shall have received written notification or
obtained actual knowledge.
Section 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series entitled to receive reports pursuant to
Section 703(3), notice of such default hereunder known to a Responsible Officer
of the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any), or interest, if any, on, or Additional Amounts or any
sinking fund installment with respect to, any Security of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the best interest of the Holders of Securities
and Coupons of such series; and PROVIDED, FURTHER, that in the case of any
default of the character specified in Section 501(3) with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
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Section 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any Coupons shall be taken as the
statements of the Company and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
Section 604. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other Person.
Section 605. MONEY HELD IN TRUST.
Except as provided in Section 403 and Section 1003, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by the Trustee hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents, accountants, experts and counsel), except
any such expense, disbursement or advance as may be attributable to the
Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability or reasonable expense (including,
without limitation, the reasonable fees and disbursements of the Trustee's
agents, legal counsel, accountants and experts), incurred without
negligence or bad faith on their part, arising out of or in
52
connection with the acceptance or administration of the trust or trusts
hereunder, including the reasonable costs and expenses of defending
themselves against any claim or liability in connection with the exercise
or performance of any of their powers or duties hereunder, except to the
extent that any such loss, liability or expense was due to the Trustee's
negligence or bad faith.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, or premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
Any compensation or expense incurred by the Trustee after a default
specified by Section 501(5) or (6) is intended to constitute an expense of
administration under any then applicable bankruptcy or insolvency law. "Trustee"
for purposes of this Section 606 shall include any predecessor Trustee but the
negligence or bad faith of any Trustee shall not affect the rights of any other
Trustee under this Section 606. The provisions of this Section 606 shall, to the
extent permitted by law, survive the termination of this Indenture, the
resignation or removal of the Trustee or any termination of this Indenture under
any Bankruptcy Law.
Section 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder that is a Corporation,
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, eligible under Section 310(a)(1) of
the Trust Indenture Act to act as trustee under an indenture qualified under the
Trust Indenture Act and that has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
U.S.$50,000,000 subject to supervision or examination by Federal or state
authority. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 609 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(3) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and the Company.
(4) If at any time:
53
(1) the Trustee shall fail to comply with the obligations imposed
upon it under Section 310(b) of the Trust Indenture Act with respect to
Securities of any series after written request therefor by the Company or
any Holder of a Security of such series who has been a bona fide Holder of
a Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder
of a Security who has been a bona fide Holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities of such series and the appointment of a successor
Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 609. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
609, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 609, any Holder of a Security who
has been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(6) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such series are
issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each
54
Place of Payment located outside the United States. Each notice shall include
the name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
Section 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(1) Upon the appointment hereunder of any successor Trustee with respect
to all Securities, such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties hereunder of the retiring Trustee; but, on the request
of the Company or such successor Trustee, such retiring Trustee, upon payment of
its charges, shall execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and,
subject to Section 1003, shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided for in Section
606.
(2) Upon the appointment hereunder of any successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the retiring
Trustee and such successor Trustee 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, such successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, 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 that no Trustee shall be responsible
for any notice given to, or received by, or any act or failure to act on the
part of any other Trustee hereunder, 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, such retiring Trustee
shall have no further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the Trustee under
this Indenture with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates other than as hereinafter
expressly set forth, and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee 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 such successor Trustee, such retiring Trustee, upon
payment of its charges with respect to the Securities of that or those series to
which the appointment of such successor relates and subject to Section 1003
shall duly assign, transfer and deliver to such successor Trustee, to
55
the extent contemplated by such supplemental indenture, the 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 to its claim, if any, provided for in Section 606.
(3) Upon request of any Person appointed hereunder as a successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (1) or (2) of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a successor
Trustee unless at the time of such acceptance such successor Person shall be
qualified and eligible under this Article.
Section 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any Corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder
(provided that such Corporation shall otherwise be qualified and eligible under
this Article), without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities shall have been
authenticated but not delivered by the Trustee then in office, any such
successor to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities. In case any
Securities shall not have been authenticated by such predecessor Trustee, any
such successor Trustee may authenticate and deliver such Securities in either
its own name or that of its predecessor Trustee.
Section 611. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint one or more Authenticating Agents acceptable to the
Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption, partial repayment, partial conversion or exchange for Common
Stock or other securities or property, or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except as
provided in or pursuant to this Indenture, shall at all times be a Corporation
that would be permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
56
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least U.S.$50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, PROVIDED such
Corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more series
of Securities pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
U.S. Bank National Association,
As Trustee
57
By:
----------------------------------------------
As Authenticating Agent
By:
----------------------------------------------
Authorized Signatory
If all of the Securities of any series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an office
in a Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
In accordance with Section 312(a) of the Trust Indenture Act, the Company
shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series not
later than May 1 and November 1 of the year or upon such other dates as are
set forth in or pursuant to the Board Resolution or indenture supplemental
hereto authorizing such series, a list, in each case in such form as the
Trustee may reasonably require, of the names and addresses of Holders as of
the applicable date, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the
time such list is furnished,
PROVIDED, HOWEVER, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
Section 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
The Trustee shall comply with the obligations imposed upon it pursuant to
Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company, the Trustee,
any Paying Agent or any Security Registrar shall be held accountable by reason
of the disclosure of any such information
58
as to the names and addresses of the Holders of Securities in accordance with
Section 312(c) of the Trust Indenture Act, regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
312(b) of the Trust Indenture Act.
Section 703. REPORTS BY TRUSTEE.
(1) Within 60 days after May 15 of each year commencing with the first May
15 following the first issuance of Securities pursuant to Section 301, if
required by Section 313(a) of the Trust Indenture Act, the Trustee shall
transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report
dated as of such May 15 with respect to any of the events specified in said
Sections 313(a) and 313(b)(2) which may have occurred since the later of the
immediately preceding May 15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section 313(a) of
the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the manner
and to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture
Act.
Section 704. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company, with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
59
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not, in any transaction or series of related
transactions, consolidate with or merge into any other Person or sell, assign,
transfer or lease or otherwise convey all or substantially all its properties
and assets substantially as an entirety to any Person, unless:
(1) either (A) the Company shall be the continuing Person (in the
case of a merger), or (B) the successor Person (if other than the Company)
formed by such consolidation or into which the Company is merged or which
acquires by sale, assignment, transfer, lease or other conveyance all or
substantially all the properties and assets of the Company shall be a
corporation, partnership, limited liability company or trust organized and
existing under the laws of the United States of America, any state thereof
or the District of Columbia and shall expressly assume, by an indenture (or
indentures, if at such time there is more than one Trustee) supplemental
hereto, executed by such successor Person and delivered to the Trustee, in
form satisfactory to the Trustee, the Company's obligations for the due and
punctual payment of the principal of, any premium and interest on, and any
Additional Amounts with respect to, all Outstanding Securities and Coupons
and the due and punctual performance and observance of every obligation in
this Indenture and the Outstanding Securities and Coupons on the part of
the Company to be performed or observed, and which supplemental indenture
shall provide for conversion or exchange rights in accordance with the
provisions of the Securities of any series that are convertible or
exchangeable into Common Stock or other securities;
(2) immediately after giving effect to such transaction, no Event of
Default or event that, after notice or passage of time or both, would be an
Event of Default shall have occurred and be continuing;
(3) if, as a result of any such transaction, the property or assets
of the Company would become subject to a Lien that would not be permitted
by Section 1005 hereof, the Company or such successor Person, as the case
may be, shall take all necessary steps to secure the Securities issued
under this Indenture such that such Securities shall then rank equally and
ratably with Indebtedness secured by such Lien; and
(4) the Company or the successor Person shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, sale, assignment, transfer or lease or
other conveyance and such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 802. SUCCESSOR PERSON SUBSTITUTED FOR COMPANY.
Upon any consolidation by the Company with or merger by the Company into
any other Person or any sale, assignment, transfer or lease or other conveyance
of the properties and assets of the Company substantially as an entirety to any
Person in accordance with Section 801, the
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successor Person formed by such consolidation or into which the Company is
merged or to which such sale, assignment, transfer or lease or other conveyance
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein and in the event of any
such sale, assignment, transfer, or other conveyance, the Company (which term
shall for this purpose mean the Person named as the "Company" in the first
paragraph of this Indenture or any successor Person which shall theretofore
become such in the manner described in Section 801), except in the case of a
lease, shall be discharged of all obligations and covenants under this Indenture
and the Securities and the Coupons and may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or Coupons, the Company
(when authorized by or pursuant to a Board Resolution) and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company
contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (as shall be specified in such
supplemental indenture or indentures) or to surrender any right or power
herein conferred upon the Company with respect to all or any series of
Securities issued under this Indenture (as shall be specified in such
supplemental indenture or indentures); 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 on the payment of principal of, any
premium or interest on or any Additional Amounts with respect to
Securities, to permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be exchanged for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated or global form,
provided any such action shall not adversely affect the interests of the
Holders of Securities of any series or any Coupons appertaining thereto; or
(4) to establish the form or terms of Securities of any series and
any Coupons appertaining thereto as permitted by Sections 201 and 301,
including, without limitation, any conversion or exchange provisions
applicable to Securities which are convertible into or exchangeable for
other securities or property, and any deletions from or additions or
changes to this Indenture in connection therewith (provided that any such
deletions,
61
additions and changes shall not be applicable to any other series of
Securities then Outstanding); 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 609; or
(6) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or which may be inconsistent with any other
provision herein, or to make any other provisions with respect to matters
or questions arising under this Indenture which shall not adversely affect
the interests of the Holders of Securities of any series then Outstanding
or any Coupons appertaining thereto; or
(7) to add any additional Events of Default with respect to all or
any series of Securities (as shall be specified in such supplemental
indenture); or
(8) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance,
covenant defeasance and/or satisfaction and discharge of any series of
Securities pursuant to Article Four, PROVIDED that any such action shall
not adversely affect the interests of any Holder of a Security of such
series and any Coupons appertaining thereto or any other Security or Coupon
in any material respect; or
(9) to secure the Securities pursuant to Section 1005 or otherwise;
or
(10) to make provisions with respect to conversion or exchange rights
of Holders of Securities of any series; or
(11) to amend or supplement any provision contained herein or in any
supplemental indenture or in any Securities (which amendment or supplement
may apply to one or more series of Securities or to one or more Securities
within any series as specified in such supplemental indenture or
indentures), PROVIDED that such amendment or supplement does not apply to
any Outstanding Security issued prior to the date of such supplemental
indenture and entitled to the benefits of such provision; or
(12) in the case of any series of Securities which are convertible
into or exchangeable for Common Stock or other securities or property, to
safeguard or provide for the conversion or exchange rights, as the case may
be, of such Securities in the event of any reclassification or change of
outstanding shares of Common Stock or any merger, consolidation, statutory
share exchange or combination of the Company with or into another Person or
any sale, transfer, disposition or other conveyance of all or substantially
all of the properties and assets of the Company to any other Person or
other similar transactions, if expressly required by the terms of such
series of Securities established pursuant to Section 301; or
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(13) to qualify or maintain the qualifications of this Indenture
under the Trust Indenture Act.
Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by or pursuant to a Board Resolution), and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of the Securities of such series or
of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; PROVIDED, that no such supplemental indenture,
without the consent of the Holder of each Outstanding Security affected thereby,
shall
(1) change the Stated Maturity of the principal of, or premium, if
any, or any installment of interest, if any, on, or any Additional Amounts,
if any, with respect to, any Security, or reduce the principal amount
thereof or the premium, if any, thereon or the rate (or modify the
calculation of such rate) of interest thereon, or reduce the amount payable
upon redemption thereof at the option of the Company or repayment thereof
at the option of the Holder, or reduce any Additional Amounts payable with
respect thereto, or change the obligation of the Company to pay Additional
Amounts pursuant to Section 1004 (except as contemplated by Section 801(1)
and permitted by Section 901(1)), or reduce the amount of the principal of
any Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect the right of repayment at the option of any Holder as
contemplated by Article Thirteen, or change the Place of Payment where or
the Currency in which the principal of, any premium or interest on, or any
Additional Amounts with respect to any 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 or, in the case of repayment pursuant to Article Thirteen
at the option of the Holder, on or after the date for repayment), in each
case as such Stated Maturity, Redemption Date or date for repayment may, if
applicable, be extended in accordance with the terms of such Security or
any Coupon appertaining thereto, or, in the case of any Security which is
convertible into or exchangeable for other securities or property, impair
the right to institute suit to enforce the right to convert or exchange
such Security in accordance with its terms, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in Section
513 or 1010 of this Indenture, or reduce the requirements of Section 1504
for quorum or voting, or
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(3) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, or
(4) make any change that adversely affects the right, if any, to
convert or exchange any Security for Common Stock or other securities or
property in accordance with its terms.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which shall have 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.
Anything in this Indenture to the contrary notwithstanding, if more than
one series of Securities is Outstanding, the Company shall be entitled to enter
into a supplemental indenture under this Section 902 with respect to any one or
more series of Outstanding Securities without entering into a supplemental
indenture with respect to any other series of Outstanding Securities.
It shall not be necessary for any Act of Holders of Securities under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
As a condition to executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Sections 315(a) through 315(d) of the Trust Indenture
Act) shall be fully protected in relying upon, an Officers' Certificate and
Opinion of Counsel to the effect that the execution of such supplemental
indenture is authorized or permitted by this Indenture and that such
supplemental indenture is a valid, binding and enforceable obligation of the
Company, subject to customary exceptions. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 905. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental
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indenture. If the Company shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
Section 906. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
ARTICLE TEN
COVENANTS
Section 1001. PAYMENT OF PRINCIPAL, PREMIUM, INTEREST AND ADDITIONAL
AMOUNTS.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal of,
any premium and interest on and any Additional Amounts with respect to the
Securities of such series, whether payable in cash, shares of Common Stock or
other securities or property in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer Security
on or before the Maturity thereof, and any Additional Amounts payable with
respect to such interest, shall be payable only upon presentation and surrender
of the Coupons appertaining thereto for such interest as they severally mature.
Section 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company shall maintain, subject to any laws
or regulations applicable thereto, an Office or Agency in a Place of Payment for
such series which is located outside the United States where Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for
payment; PROVIDED, HOWEVER, that if the Securities of such series are listed on
the London Stock Exchange or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company shall maintain a Paying Agent in London, Luxembourg or any
other required city located outside the United States, as the case may be, so
long as the Securities of such series are listed on such exchange. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such Office or Agency. If at any time the Company shall fail
to maintain any such required Office or Agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust
65
Office of the Trustee, except that Bearer Securities of such series and any
Coupons appertaining thereto may be presented and surrendered for payment at the
place specified for the purpose with respect to such Securities as provided in
or pursuant to this Indenture, and the Company hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no payment
of principal, premium, interest or Additional Amounts with respect to Bearer
Securities shall be made at any Office or Agency in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; PROVIDED, HOWEVER, if
amounts owing with respect to any Bearer Securities shall be payable in U.S.
Dollars, payment of principal of, any premium or interest on and any Additional
Amounts with respect to any such Security may be made at the Corporate Trust
Office of the Trustee or any Office or Agency designated by the Company in the
Borough of Manhattan, The City of New York, if (but only if) payment of the full
amount of such principal, premium, interest or Additional Amounts at all offices
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 each Place of Payment for Securities of any series for such purposes. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other Office or
Agency.
Unless otherwise provided in or pursuant to this Indenture, the Company
hereby designates the Borough of Manhattan, The City of New York as a Place of
Payment for each series of Securities, initially appoints the Corporate Trust
Office of the Trustee in the Borough of Manhattan, The City of New York as the
Company's Office or Agency in the Borough of Manhattan, The City of New York for
such purpose and initially appoints the Trustee as the Security Registrar for
each series of Securities and, if the Securities of any series are convertible
into or exchangeable for Common Stock or other securities or property, initially
appoints the Trustee as conversion or exchange agent, as the case may be, for
the Securities of such series. The Company may subsequently appoint a different
Office or Agency in the Borough of Manhattan, The City of New York and, as
provided in Section 305, may remove and replace from time to time the Security
Registrar.
Section 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it shall, on or before each due date of the
principal of, any premium or interest on, or any Additional Amounts with respect
to any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency or Currencies in
which the Securities of such series are payable sufficient to pay the principal,
any premium, interest and Additional Amounts, as the case may be, so becoming
due until such sums shall be
66
paid to such Persons or otherwise disposed of as herein provided, and shall
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it shall, on or prior to each due date of the principal of, or any
premium or interest on or any Additional Amounts with respect to, any Securities
of such series, deposit with any Paying Agent a sum (in the Currency or
Currencies described in the preceding paragraph) sufficient to pay the
principal, premium, interest and Additional Amounts, as the case may be, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of,
any premium or interest on or any Additional Amounts with respect to
Securities of such series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal, any premium or interest on or any Additional Amounts
with respect to the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
To the extent that the terms of any Securities established pursuant to Section
301 provide that any principal of, any premium or interest on, or any Additional
Amounts with respect to any such Securities is or may be payable in Common Stock
or other securities or property, then the provisions of this Section 1003 shall
apply, MUTATIS MUTANDIS, to such Common Stock or other securities or property.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same terms as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such sums.
Except as otherwise provided herein or pursuant hereto, any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of, any premium or interest on or any Additional
Amounts with respect to any Security of any series or any Coupon appertaining
thereto and remaining unclaimed for two years after such principal or such
premium or interest or Additional Amount shall have become due and
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payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security or
any Coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may, not later than 30 days after the Company's request for such
repayment, at the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment for such series or to be mailed to
Holders of Registered Securities of such series, or both, 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 nor shall it be
earlier than two years after such principal and any premium or interest or
Additional Amounts shall have become due and payable, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 1004. ADDITIONAL AMOUNTS.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Securities or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon, such
mention shall be deemed to include mention of the payment of Additional Amounts
provided by the terms of such series established hereby or pursuant hereto to
the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms, and express mention of the
payment of Additional Amounts (if applicable) in any provision hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of any series, 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 such series of Securities (or if the Securities of such series
shall not bear interest prior to Maturity, the first day on which a payment of
principal is made), and at least 10 days prior to each date of payment of
principal or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Company shall
furnish to the Trustee and the Paying Agent or Paying Agents, if other than the
Trustee, an Officers' Certificate instructing the Trustee and such Paying Agent
or Paying Agents whether such payment of principal of and premium, if any, or
interest, if any, on the Securities of such series shall be made to Holders of
Securities of such series or the Coupons appertaining thereto (other than such
Holders (if any) who, pursuant to the terms of the Securities of such series
established pursuant to Section 301, are not entitled to receive such Additional
Amounts) without withholding or deduction for or on account of any tax, duty,
levy, impost, assessment or other governmental charge described in the
Securities of such series or pursuant to Section 301 with respect to the
Securities of such series. If any such withholding or deduction shall be
required, then such Officers' Certificate shall specify by country the amount,
if any, required to be withheld or deducted from such payments to such Holders
of Securities or Coupons, and the Company agrees to pay to the Trustee or such
Paying Agent the Additional
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Amounts required by the terms of such Securities. 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. Nothing in this Section 1004 or elsewhere in this
Indenture shall limit the obligation of the Company to pay Additional Amounts
with respect to the Securities of any series as set forth in the terms of the
Securities of such series established pursuant to Section 301.
Section 1005. LIMITATION ON LIENS.
(1) The Company will not itself, and will not permit any Restricted
Subsidiary to, create, incur, issue or suffer to exist any Lien to secure
any Indebtedness of the Company or any Subsidiary upon any Principal
Property, or upon shares of capital stock or evidences of Indebtedness
issued by any Restricted Subsidiary and owned by the Company or any
Restricted Subsidiary (whether such Principal Property, shares or evidences
of indebtedness were owned at the date of this Indenture or thereafter
acquired), without making, or causing such Restricted Subsidiary to make,
effective provision to secure all of the Securities from time to time
Outstanding by such Lien, equally and ratably with, or prior to, any and
all other Indebtedness thereby secured, so long as such Indebtedness shall
be so secured, unless, after giving effect thereto, the sum of (a) the
principal amount of Indebtedness secured by all Liens incurred after the
date of this Indenture to the extent the incurrence of such Indebtedness
(i) did not require the Company or any Restricted Subsidiary to equally and
ratably secure the Securities or (ii) was not otherwise permitted by
Section 1005(2) and (b) the Attributable Value of all Sale and Leaseback
Transactions entered into after the date of this Indenture (other than (i)
the Attributable Value in respect of any Sale and Leaseback Transaction the
Net Available Proceeds therefrom are applied as set forth in Section
1006(1)(b) or (ii) the Attributable Value in respect of any Sale and
Leaseback Transaction otherwise permitted by Section 1006(2)), does not
exceed 10% of Consolidated Net Tangible Assets of the Company.
(2) The foregoing restrictions shall not prevent, restrict or apply
to the creation, incurrence, issuance or assumption by the Company or any
Subsidiary of Indebtedness secured by Liens existing on the date of this
Indenture or to any of the following:
(a) Liens on any property existing at the time of the
acquisition thereof;
(b) Liens on property of a Person existing at the time such
Person is merged into, consolidated with or acquired by the Company or
a Restricted Subsidiary or at the time of a sale, lease or other
disposition of the properties of such Person (or a division thereof)
as an entirety or substantially as an entirety to the Company or a
Restricted Subsidiary, provided that such Lien as a result of such
merger, consolidation, acquisition, sale, lease or other disposition
is not extended to property owned by the Company or such Restricted
Subsidiary immediately prior thereto;
69
(c) Liens on property of a Person existing at the time such
Person becomes a Restricted Subsidiary;
(d) Liens securing Indebtedness of a Restricted Subsidiary to
the Company or to another Restricted Subsidiary;
(e) Liens to secure all or part of the cost of acquisition,
construction, development or improvement of the underlying property,
or to secure Indebtedness incurred to provide funds for any such
purpose (including purchase money security interests or money
mortgages on real or personal property), provided that the commitment
of the creditor to extend the credit secured by any such Liens shall
have been obtained not later than 180 days after the later of (a) the
completion of the acquisition, construction, development or
improvement of such property or (b) the placing in operation of such
property or of such property as so constructed, developed or improved;
(f) Liens on any property created, assumed or otherwise brought
into existence in contemplation of the sale or other disposition of
the underlying property, whether directly or indirectly, by way of
share disposition or otherwise; provided that the Company must have
disposed of such property within 180 days after the creation of such
Liens and that any Indebtedness secured by such Liens shall be without
recourse to the Company or any Subsidiary;
(g) Liens in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision thereof, to secure partial, progress, advance or other
payments;
(h) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's, repairmen's or customs' Liens and similar Liens
arising in the ordinary course of business in respect of obligations
not yet due or being contested in good faith;
(i) Liens arising from deposits with or the giving of any form
of security to any governmental authority required as a condition to
the transaction of business or exercise of any privilege, franchise or
license;
(j) Liens for taxes, assessments or governmental charges or
levies which, if delinquent, are being contested in good faith;
(k) Liens (including judgment Liens) arising from legal
proceedings being contested in good faith;
(l) Liens to secure Indebtedness on any Principal Property of
joint ventures which constitute Restricted Subsidiaries in which the
Company or a Restricted Subsidiary has an interest, to the extent such
Liens are on property or assets of, or equity interests in, such joint
ventures; and
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(m) any extension, renewal, replacement or refunding of any
Lien existing on the date of the Indenture or referred to above;
PROVIDED, HOWEVER, that the principal amount of Indebtedness secured
thereby and not otherwise authorized above, shall not exceed the
maximum amount of Indebtedness allowable under the applicable
agreement or credit facility providing for or evidencing such
Indebtedness, plus any premium or fee payable in connection with any
such extension, renewal, replacement or refunding, at the time of such
extension, renewal, replacement or refunding.
Section 1006. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
(1) The Company will not itself, nor will it permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction with respect
to any Principal Property, unless:
(a) immediately prior to entering into such Sale or Leaseback
Transaction, the Company or such Restricted Subsidiary would be
entitled pursuant to Section 1005 to issue, assume or guarantee
Indebtedness secured by a Lien on such Principal Property in an amount
at least equal to the Attributable Value of such Sale and Leaseback
Transaction without equally and ratably securing the Securities under
this Indenture; or
(b) the Company or such Restricted Subsidiary shall apply or
cause to be applied within 180 days after the effective date of such
Sale and Leaseback Transaction, an amount equal to the Net Available
Proceeds therefrom to (i) the acquisition of one or more Principal
Properties or (ii) the retirement of Securities or the repayment of
other Indebtedness of the Company or a Restricted Subsidiary (other
than such Indebtedness owned by the Company or a Restricted
Subsidiary) which, in the case of such Indebtedness of the Company, is
not subordinate and junior in right of payment to the prior payment of
the Securities.
(2) The foregoing restrictions will not apply to the following Sale
and Leaseback Transactions:
(a) a Sale and Leaseback Transaction providing for a lease for
a term, including any renewal thereof, of not more than three years,
by the end of which term it is intended that the use of such Principal
Property by the lessee will be discontinued; or
(b) a Sale and Leaseback Transaction that is entered into
before, at the time of, or within 90 days after the later of the
acquisition of the Principal Property or the completion of its
construction; or
(c) a Sale and Leaseback Transaction between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries; or
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(d) a Sale and Leaseback Transaction between the Company or a
Restricted Subsidiary and a joint venture in which the Company or a
Restricted Subsidiary has an interest.
Section 1007. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect (i) the corporate
existence of the Company and (ii) the rights (charter and statutory) and
franchises of the Company and any Restricted Subsidiary; PROVIDED, HOWEVER, that
the Company shall not be required to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Restricted Subsidiaries as a
whole.
Section 1008. MAINTENANCE OF PRINCIPAL PROPERTIES.
The Company will cause all Principal Properties to be maintained and kept
in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent or restrict the sale,
abandonment or other disposition of any such Principal Properties if such action
is, in the judgment of the Company, desirable in the conduct of the business of
the Company and its Subsidiaries as a whole and not disadvantageous in any
material respect to the Holders.
Section 1009. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon it or upon the Company or any
Restricted Subsidiary or upon the income, profits or property of the Company,
and (2) all material lawful claims for labor, materials and supplies which, if
unpaid, might by law become a Lien upon any Principal Property; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 1010. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1005 to 1009, inclusive, with
respect to the Securities of any series and, if expressly provided pursuant to
Section 301(18), any additional covenants applicable to the Securities of such
series if before the time for such compliance the Holders of at least a majority
in principal amount of the Outstanding Securities of such series, by Act of such
Holders, either shall waive such compliance in such instance or generally shall
have waived compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
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Section 1011. COMPANY STATEMENT AS TO COMPLIANCE.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year, a written statement (which need not be contained in or
accompanied by an Officers' Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, stating whether or not, to the best of his or her knowledge, the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to notice
requirements or periods of grace) and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which he or
she may have knowledge.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. APPLICABILITY OF ARTICLE.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. If the terms of any series of Securities
established pursuant to Section 301 hereof permit the Company to redeem less
than all of the Outstanding Securities of such series, then, in the case of any
redemption at the election of the Company of less than all of the Securities of
such series, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Securities of such series to be redeemed and, in the event that the Company
shall determine that the Securities of any series to be redeemed shall be
selected from Securities of such series having the same issue date, interest
rate or interest rate formula, Stated Maturity and other terms (the "Equivalent
Terms"), the Company shall notify the Trustee of such Equivalent Terms.
In the case of any redemption of Securities (A) prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture or (B) pursuant to an election of the Company which
is subject to a condition specified in the terms of such Securities or elsewhere
in this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate evidencing compliance with such restriction or condition.
Section 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all of the Securities of any series are to be redeemed or if
less than all of the Securities of any series with Equivalent Terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series or from the Outstanding Securities of such series
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with Equivalent Terms, as the case may be, not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions of the principal amount of
Registered Securities of such series; PROVIDED, HOWEVER, that no such partial
redemption shall reduce the portion of the principal amount of a Security of
such series not redeemed to less than the minimum denomination for a Security of
such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted or exchanged for Common Stock or other securities or property in part
before termination of the conversion or exchange right with respect to the
portion of the Security so selected, the converted or exchanged portion of such
Security shall be deemed (so far as may be) to be the portion selected for
redemption. Securities which have been converted or exchanged during a selection
of Securities to be redeemed shall be treated by the Trustee as Outstanding for
the purpose of such selection.
Section 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section 106,
not less than 30 nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified in the Securities to be redeemed, to the Holders of
Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portions thereof.
Any notice that is mailed to the Holder of any Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
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(4) that, in case any Security is to be redeemed in part only, on
and after the Redemption Date, upon surrender of such Security, the Holder
of such Security will receive, without charge, a new Security or Securities
of authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall become
due and payable upon each such Security or portion thereof to be redeemed,
together (if applicable) with accrued and unpaid interest, if any, thereon
(subject, if applicable, to the provisos to the first paragraph of Section
1106), and, if applicable, that interest thereon shall cease to accrue on
and after said date,
(6) 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 any accrued interest and Additional Amounts
pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing Coupon or Coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on the Redemption Date pursuant to Section 305 or otherwise, the
last date, as determined by the Company, on which such exchanges may be
made,
(10) in the case of Securities of any series that are convertible or
exchangeable into Common Stock or other securities or property, the then
current conversion or exchange price or rate, the date or dates on which
the right to convert or exchange the principal of the Securities of such
series to be redeemed will commence or terminate, as applicable, and the
place or places where and the Persons to whom such Securities may be
surrendered for conversion or exchange,
(11) the CUSIP number or the Euroclear or the Cedel reference numbers
of such Securities, if any (or any other numbers used by a Depository to
identify such Securities), and
(12) if the Redemption Price or any portion thereof shall be payable,
at the option of the Company or any Holders, in cash or in Common Stock or
other securities or property (or a combination thereof), a statement as to
whether the Company has elected to pay the Redemption Price in cash or
Common Stock or other securities or property or a combination thereof.
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A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:00 a.m. (local time in New York City) on any Redemption
Date, the Company shall deposit, with respect to the Securities of any series
called for redemption pursuant to Section 1104, with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money in the
applicable Currency sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date, unless otherwise
specified pursuant to Section 301 for or in the Securities of such series) any
accrued interest on and Additional Amounts with respect to, all such Securities
or portions thereof which are to be redeemed on that date, except that, if the
Securities of such series are convertible or exchangeable into Common Stock or
other securities (other than Securities of the same series) or property, no such
deposit shall be required with respect to any such Securities (or portions
thereof) which have been converted or exchanged prior to such Redemption Date.
Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed (except, in the case of Securities which are convertible or
exchangeable into Common Stock or other securities (other than Securities of the
same series) or property, any such Securities which shall have been so converted
or exchanged prior to the applicable Redemption Date) shall, on the Redemption
Date, become due and payable at the Redemption Price therein specified, together
with (unless otherwise provided with respect to the Securities of such series
pursuant to Section 301) accrued and unpaid interest, if any, thereon and from
and after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest, if any) 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, unless otherwise provided in or pursuant to
this Indenture, any accrued and unpaid interest thereon and Additional Amounts
with respect thereto to but excluding the Redemption Date; PROVIDED, HOWEVER,
that, except as otherwise provided in or pursuant to this Indenture or the
Bearer Securities of such series, installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only upon presentation and surrender of Coupons for such interest (at an Office
or Agency located outside the United States except as otherwise provided in
Section 1002), and PROVIDED, FURTHER, that, except as otherwise specified in or
pursuant to this Indenture or the Registered Securities of such series,
installments of interest on Registered Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close
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of business on the Regular Record Dates therefor according to their terms and
the provisions of Section 307.
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 or, at the option of the
Company, after payment to the Trustee for the benefit of the Company of, 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 furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such
missing Coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; PROVIDED, HOWEVER, that any interest or Additional Amounts represented
by Coupons shall be payable only upon presentation and surrender of those
Coupons at an Office or Agency for such Security located outside of the United
States except as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium, until paid, shall bear
interest from the Redemption Date at the rate prescribed therefor in the
Security or, if no rate is prescribed therefor in the Security, at the rate of
interest, if any, borne by such Security.
Section 1107. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the Depository for
such Security in global form as shall be specified in the Company Order with
respect thereto to the Trustee, without service charge, a new Security in global
form in a denomination equal to and in exchange for the unredeemed portion of
the principal of the Security in global form so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
Section 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
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 such series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series and this Indenture.
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, 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. If as a result of the delivery or credit of Securities
of any series in lieu of cash payments pursuant to this Section 1202, the
principal amount of Securities of such series to be redeemed in order to exhaust
the aforesaid cash payment shall be less than U.S.$100,000, the Trustee need not
call Securities of such series for redemption, except upon Company Request, and
such cash payment shall be held by the Trustee or a Paying Agent and applied to
the next succeeding sinking fund payment, PROVIDED, HOWEVER, that the Trustee or
such Paying Agent shall at the request of the Company from time to time pay over
and deliver to the Company any cash payment so being held by the Trustee or such
Paying Agent upon delivery by the Company to the Trustee of Securities of that
series purchased by the Company having an unpaid principal amount equal to the
cash payment requested to be released to the Company.
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Section 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with the
terms of the Securities of such series. The repayment of any principal amount of
Securities pursuant to such option of the Holder to require repayment of
Securities before their Stated Maturity, for purposes of Section 309, shall not
operate as a payment, redemption or satisfaction of the indebtedness represented
by such Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities be
cancelled. Notwithstanding anything to the contrary contained in this Section
1301, in connection with any repayment of Securities, the Company may arrange
for the purchase of any Securities by an agreement with one or more investment
bankers or other purchasers to purchase such Securities by paying to the Holders
of such Securities on or before the applicable repayment date an amount not less
than the repayment price payable by the Company on repayment of such Securities,
and the obligation of the Company to pay the repayment price of such Securities
shall be satisfied and discharged to the extent such payment is so paid by such
purchasers.
Unless otherwise expressly stated in this Indenture or pursuant to Section
301 with respect to the Securities of any series or unless the context otherwise
requires, all references in this Indenture to the repayment of Securities at the
option of the Holders thereof (and all references of like import) shall be
deemed to include a reference to the repurchase of Securities at the option of
the Holders thereof.
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ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. APPLICABILITY OF ARTICLE.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency or (ii)
any distribution to Holders of Securities of any series in which not all of such
Securities are denominated in the same Currency, in the absence of any provision
to the contrary in or pursuant to this Indenture or the Securities of such
series, any amount in respect of any Security denominated in a Currency other
than U.S. Dollars shall be treated for any such action, determination or
distribution as that amount of U.S. Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination or distribution (or, if there shall be no applicable record date,
such other date reasonably proximate to the date of such distribution) as the
Company may specify in a written notice to the Trustee or, in the absence of
such written notice, as the Trustee may determine.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 1502. CALL, NOTICE AND PLACE OF MEETINGS.
(1) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1501, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London or in such place outside the United States of America as
the Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board Resolution)
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 1501, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed notice of or made
the first publication of the notice of such meeting within 21 days after receipt
of such request
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(whichever shall be required pursuant to Section 106) 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, if Securities of such series are to be issued as
Bearer Securities, in London for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in clause (1) of this Section.
Section 1503. 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 1504. 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 or
duly reconvened meeting of Holders of Securities of such series; PROVIDED,
HOWEVER, that if any action is to be taken at such meeting with respect to a
consent or waiver which this Indenture expressly provides may be given by the
Holders of at least 66-2/3% in principal amount of the Outstanding Securities of
a series, the Persons entitled to vote 66-2/3% in principal amount of the
Outstanding Securities of such series shall constitute a quorum. In the absence
of a quorum within 30 minutes after the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as 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 1502(1), 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 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only 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 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides may
be made, given or taken by the Holders of at least 66-2/3% in principal amount
of the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of at least 66-2/3% in principal
amount of
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the Outstanding Securities of that series; and PROVIDED, FURTHER,
that, except as limited by the proviso to Section 902, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act 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 such
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 Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(1) 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 such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 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 104 or other proof.
(2) 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 1502(2), 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.
(3) At any meeting, each Holder of a Security of such series or proxy
shall be entitled to one vote for each U.S.$1,000 principal amount of Securities
of such series held or represented by him; PROVIDED, HOWEVER, that no vote shall
be cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. If
the Securities of such series are issuable in minimum denominations of less than
U.S.$1,000, then a Holder of such a Security in a principal amount of less than
U.S.$1,000 shall be entitled to a fraction of one vote which is equal to the
fraction that the principal amount of such Security bears to U.S.$1,000. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
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(4) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 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 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, 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 1502 and, if
applicable, Section 1504. 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.
* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
PACKAGING CORPORATION OF AMERICA
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President, Chief Executive
Officer and Corporate Secretary
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
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