EXHIBIT 4.1
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RYDER SYSTEM, INC.
and
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
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INDENTURE
Dated as of [ ], 2003
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CROSS-REFERENCE TABLE
Reconciliation and tie between Indenture dated as of [ ],
2003, and the Trust Indenture Act of 1939. This reconciliation section does not
constitute a part of the Indenture.
Trusted Indenture Act of 1939
Section Indenture Section
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310 (a)(1)..................................................... 7.10
(a)(2)..................................................... 7.10
(a)(3)..................................................... N.A.
(a)(4)..................................................... N.A.
(b)........................................................ 7.08;7.10;
10.02
(c)........................................................ N.A.
311 (a)........................................................ 7.11
(b)........................................................ 7.11
(c)........................................................ N.A.
312 (a)........................................................ 2.06
(b)........................................................ 10.03
(c)........................................................ 10.03
313 (a)........................................................ 7.06
(b)(1)..................................................... N.A.
(b)(2)..................................................... 7.06
(c)........................................................ 10.02
(d)........................................................ 7.06
314 (a)........................................................ 4.02; 10.02
(b)........................................................ N.A.
(c)(1)..................................................... 10.04
(c)(2)..................................................... 10.04
(c)(3)..................................................... N.A.
(d)........................................................ N.A.
(e)........................................................ 10.05
(f)........................................................ N.A.
315 (a)........................................................ 7.01(b)
(b)........................................................ 7.05; 10.02
(c)........................................................ 7.01(a)
(d)........................................................ 7.01(c)
(e)........................................................ 6.11
316 (a) (last sentence)........................................ 2.10
(a)(1)(A).................................................. 6.05
(a)(1)(B).................................................. 6.04
(a)(2)..................................................... N.A.
(b)........................................................ 6.07
317 (a)(1)..................................................... 6.08
Trusted Indenture Act of 1939
Section Indenture Section
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(a)(2)..................................................... 6.09
(b)........................................................ 2.05
318 (a)........................................................ 10.01
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N.A. means Not Applicable.
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TABLE OF CONTENTS
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ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions...............................................................................1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.........................................6
SECTION 1.03. Trust Indenture Act.......................................................................7
SECTION 1.04. Rules of Construction.....................................................................7
SECTION 1.05. Accounting Terms..........................................................................8
ARTICLE II
The Debt Securities
SECTION 2.01. Issuable in Series........................................................................8
SECTION 2.02. Establishment of Terms of Series of Debt Securities.......................................8
SECTION 2.03. Execution and Authentication.............................................................10
SECTION 2.04. CUSIP Numbers............................................................................11
SECTION 2.05. Registrar and Paying Agent...............................................................12
SECTION 2.06. Paying Agent to Hold Money in Trust......................................................12
SECTION 2.07. Debt Securityholder Lists................................................................12
SECTION 2.08. Transfer and Exchange....................................................................13
SECTION 2.09. Replacement Debt Securities..............................................................13
SECTION 2.10. Outstanding Debt Securities..............................................................13
SECTION 2.11. Treasury Debt Securities for Certain Purposes............................................14
SECTION 2.12. Temporary Debt Securities................................................................14
SECTION 2.13. Cancelation..............................................................................14
SECTION 2.14. Defaulted Interest.......................................................................15
SECTION 2.15. Persons Deemed Owners....................................................................15
SECTION 2.16. Certain Provisions Relating to Global Registered Securities..............................15
ARTICLE III
Redemption
SECTION 3.01. Notice to Trustee........................................................................18
SECTION 3.02. Selection of Debt Securities to be Redeemed..............................................18
SECTION 3.03. Notice of Redemption.....................................................................19
SECTION 3.04. Effect of Notice of Redemption...........................................................19
SECTION 3.05. Deposit of Redemption Price..............................................................19
SECTION 3.06. Debt Securities Redeemed in Part.........................................................19
SECTION 3.07. Remarketing of Remarketable Securities...................................................20
ARTICLE IV
Covenants
SECTION 4.01. Payment of Debt Securities...............................................................20
SECTION 4.02. SEC Reports..............................................................................20
SECTION 4.03. Compliance Certificate; Notice of Default and Event of Default...........................21
SECTION 4.04. Maintenance of Office or Agency..........................................................21
SECTION 4.05. Additional Amounts.......................................................................21
SECTION 4.06. Limitation on Secured Indebtedness.......................................................22
SECTION 4.07. Limitation on Investments in Unrestricted Subsidiaries...................................23
SECTION 4.08. Limitation on Permitting Restricted Subsidiaries to Become Unrestricted Subsidiaries and
Unrestricted Subsidiaries to Become Restricted Subsidiaries........................23
SECTION 4.09. Waiver of Certain Covenants..............................................................23
ARTICLE V
Successor Corporation
SECTION 5.01. When Company May Merge, Etc..............................................................24
SECTION 5.02. Successor Corporation Substituted........................................................24
ARTICLE VI
Default and Remedies
SECTION 6.01. Events of Default........................................................................25
SECTION 6.02. Acceleration.............................................................................26
SECTION 6.03. Other Remedies...........................................................................26
SECTION 6.04. Waiver of Past Defaults..................................................................26
SECTION 6.05. Control by Majority......................................................................26
SECTION 6.06. Limitation on Suits......................................................................27
SECTION 6.07. Rights of Holders to Receive Payment.....................................................27
SECTION 6.08. Collection Suits by Trustee..............................................................27
SECTION 6.09. Trustee May File Proofs of Claim.........................................................27
SECTION 6.10. Priorities...............................................................................28
SECTION 6.11. Undertaking for Costs....................................................................28
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee........................................................................28
SECTION 7.02. Rights of Trustee........................................................................29
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SECTION 7.03. Individual Rights of Trustee.............................................................30
SECTION 7.04. Trustee's Disclaimer.....................................................................30
SECTION 7.05. Notice of Defaults.......................................................................30
SECTION 7.06. Reports by Trustee to Holders............................................................30
SECTION 7.07. Compensation and Indemnity...............................................................31
SECTION 7.08. Replacement of Trustee...................................................................32
SECTION 7.09. Successor Trustee by Merger, etc.........................................................33
SECTION 7.10. Eligibility; Disqualification............................................................33
SECTION 7.11. Preferential Collection of Claims Against Company........................................33
ARTICLE VIII
Discharge of Indenture
SECTION 8.01. Termination of Company's Obligations.....................................................33
SECTION 8.02. Application of Trust Money...............................................................34
SECTION 8.03. Reinstatement............................................................................34
SECTION 8.04. Repayment to Company.....................................................................35
SECTION 8.05. Indemnity for Government Obligations.....................................................35
ARTICLE IX
Amendments; Supplements and Waivers
SECTION 9.01. Without Consent of Holders...............................................................35
SECTION 9.02. With Consent of Holders..................................................................35
SECTION 9.03. Limitations..............................................................................36
SECTION 9.04. Compliance with Trust Indenture Act......................................................36
SECTION 9.05. Revocation and Effect of Consents........................................................36
SECTION 9.06. Notation on or Exchange of Debt Securities...............................................37
SECTION 9.07. Trustee Protected........................................................................37
ARTICLE X
Miscellaneous
SECTION 10.01. Trust Indenture Act Controls............................................................37
SECTION 10.02. Notices.................................................................................37
SECTION 10.03. Communication by Holders with Other Holders.............................................38
SECTION 10.04. Certificate and Opinion as to Conditions Precedent......................................38
SECTION 10.05. Statements Required in Certificate or Opinion...........................................38
SECTION 10.06. Rules by Trustee and Agents.............................................................38
SECTION 10.07. Legal Holidays..........................................................................39
SECTION 10.08. Governing Law...........................................................................39
SECTION 10.09. No Adverse Interpretation of Other Agreements...........................................39
SECTION 10.10. No Recourse Against Others..............................................................39
SECTION 10.11. Duplicate Originals.....................................................................39
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SECTION 10.12. Severability............................................................................39
SIGNATURES..............................................................................................39
ACKNOWLEDGMENTS.........................................................................................40
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INDENTURE, dated as of [ ], 2003, between RYDER SYSTEM, INC., a
Florida corporation (the "Company"), and X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION, a national banking association organized and existing under the
laws of the United States of America (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Debt
Securities issued under this Indenture:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Additional Amounts" means any additional amounts which are
required by a Debt Security or by or pursuant to a Board Resolution under
circumstances specified therein to be paid by the Company in respect of certain
taxes, assessments or other governmental charges imposed on certain Holders of
Debt Securities.
"Affiliate" means any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company.
"After-Acquired Indebtedness" means:
(1) Pre-existing indebtedness assumed by the Company or a
Restricted Subsidiary as a result of the purchase, takeover or other
acquisition of the assets or stock of an entity other than a Subsidiary
of the Company;
(2) mortgages or liens on property existing at the time of
acquisition of said property; or
(3) Indebtedness of an Unrestricted Subsidiary which is
outstanding at the time such Unrestricted Subsidiary becomes a
Restricted Subsidiary subsequent to the date of this Indenture.
"Agent" means any Paying Agent, Registrar or co-registrar.
"Applicable Procedures" means, with respect to any transfer,
redemption or exchange of beneficial interests in any Global Registered
Security, the rules and procedures of the Depositary, Euroclear and Clearstream
that apply to such transfer, redemption or exchange.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or State law for the relief of debtors.
"Board of Directors" means the Board of Directors of the
Company or any duly authorized committee of the Board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of the
certification and delivered to the Trustee.
"Business Day", when used with respect to any place, means any
day, other than a Saturday or Sunday, and other than a day on which banking
institutions in such place are authorized or required by law, regulation or
executive order to close.
"Clearstream" means Clearstream Banking, societe anonyme,
Luxembourg (formerly Cedel Bank, societe anonyme), or any successor to the
operations thereof.
"Company" means the party named as such above until a
successor replaces it and thereafter means the successor.
"Company Order" means an order signed by two Officers or by
any Officer and either an Assistant Treasurer or an Assistant Secretary of the
Company.
"Corporate Trust Office" means the office of the Trustee in
the City of Birmingham, Alabama at which at any particular time its corporate
trust business shall principally be administered, which office at the date of
the execution and delivery of this instrument as originally executed is located
at 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, Attention:
Corporate Trust Administration, except that with respect to presentation or
surrender of Debt Securities for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee in The City
of New York at which at any particular time its corporate agency business shall
principally be administered in that city, which office at the date of the
execution and delivery of this instrument as originally executed is located at 0
Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Institutional Trust
Services; and, in either case, such other office or offices as the Trustee may
designate from time to time by notice to the Company and to the Holders.
"Consolidated" when used with respect to any of the terms
herein shall refer to such terms as reflected in a consolidation of the accounts
of the Company and its Restricted Subsidiaries in accordance with generally
accepted accounting principles.
"Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
"Debt Securities" means the debentures, notes, bonds or other
evidences of indebtedness of the Company of any Series established in a
supplemental indenture or by or pursuant to a Board Resolution and authenticated
and delivered under this Indenture.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
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"Depositary" means, unless otherwise specified by the Company
pursuant to either Section 2.02 or 2.16, with respect to the Debt Securities of
any Series issuable or issued in whole or in part as one or more Global
Registered Security or Securities, The Depository Trust Company, New York, New
York, or any successor thereto registered as a clearing agency under the
Securities Exchange Act of 1934, as amended, and any other applicable statute or
regulation and appointed as Depositary hereunder pursuant to the applicable
provisions of this Indenture.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System, or any successor securities clearing agency.
"Event of Default" has the meaning specified in Section 6.01.
"Foreign Financing Subsidiary" means any Subsidiary, not
organized under the laws of the United States of America or any state thereof,
engaged in the business of Lending to the Company or its Restricted Subsidiaries
and borrowing on behalf of the Company or its Restricted Subsidiaries.
"Global Registered Security" means, unless otherwise specified
by the Company pursuant to either Section 2.02 or 2.16, with respect to any
Series of Debt Securities issued hereunder, a Registered Debt Security which is
executed by the Company and authenticated and delivered by the Trustee to the
Depositary or a custodian therefor, or pursuant to the Depositary's instruction,
all in accordance with this Indenture and an indenture supplemental hereto, or a
Board Resolution, which shall be registered in the name of the Depositary or its
nominee and which shall represent, and shall be denominated in an amount equal
to the aggregate Principal amount of all the outstanding Debt Securities of such
Series or any portion thereof, in either case having the same terms, including,
without limitation, the same original issue date, date or dates on which
Principal and interest, if any, are due, and, if interest shall be payable
thereon, interest rate or method of determining such interest. The term "global
form" or "definitive global registered form" when used in this Indenture shall
include Global Registered Securities.
"Holder" or "Debt Securityholder" with respect to a Registered
Debt Security, means a Person in whose name a Debt Security is registered on the
registration books kept for that purpose in accordance with the terms hereof.
"Indebtedness" means all indebtedness other than Subordinated
Indebtedness of the Company or its Restricted Subsidiaries for borrowed money or
leasing obligations which have been created, incurred or assumed as reflected on
the Consolidated balance sheet of the Company and its Restricted Subsidiaries,
and any indebtedness of other parties guaranteed by the Company or its
Restricted Subsidiaries, without duplication.
"Indenture" means this Indenture as supplemented and amended
from time to time.
"Intercompany Indebtedness" means any Indebtedness owed
directly between the Company and/or its Restricted Subsidiaries.
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"Net Tangible Assets" means the total amount of assets as
reflected on the Consolidated balance sheet of the Company and its Restricted
Subsidiaries, after appropriate deduction for minority interests, less:
(1) all goodwill, operating rights, patents, trade-names,
unamortized debt expense and other intangibles;
(2) amounts invested in, advanced to or equity in Unrestricted
Subsidiaries; and
(3) unamortized debt discount.
"Net Worth" means, with regard to each Series of Debt
Securities, the sum of the following as reflected on the Consolidated balance
sheet of the Company and its Restricted Subsidiaries (1) shareholders' equity,
(2) Subordinated Indebtedness and (3) 50% of the reserve for deferred income
taxes, less (A) all goodwill, operating rights, patents, trade-names and other
intangibles in excess of the balance at December 31 of the year prior to
issuance of that Series, (B) any increase in the value of a fixed asset arising
from a revaluation thereof after December 31 of the year prior to issuance of
that Series, and (C) any equity interest in an Unrestricted Subsidiary.
"Officer" means the Chairman of the Board, the President, any
Vice President (whether or not designated by a number or word added before or
after the title vice president), the Treasurer, the Secretary or the Controller
of the Company.
"Officers' Certificate" means a certificate signed by two
Officers or by any Officer and either an Assistant Treasurer or Assistant
Secretary of the Company.
"Opinion of Counsel" means a written opinion of legal counsel
who may be an employee of or counsel to the Company. Such counsel shall be
reasonably acceptable to the Trustee.
"Original Issue Discount Debt Security" means any Debt
Security which provides for an amount less than the stated Principal amount
thereof to be due and payable upon redemption or declaration of acceleration of
the maturity thereof pursuant to Section 6.02 or any Debt Security which for
United States Federal income tax purposes would be considered an original issue
discount debt security.
"Paying Agent" has the meaning specified in Section 2.05.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"Place of Payment", when used with respect to the Debt
Securities of any Series, means the place or places where, subject to the
provisions of Section 4.04, the Principal of and any interest on the Debt
Securities of such Series are payable as specified in Section 2.02.
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"Leasing Indebtedness" means the capitalized Indebtedness of
any leasing obligations on personal property.
"Principal" of a Debt Security means the principal of the Debt
Security plus, when appropriate, the premium, if any, on the Debt Security
except that (i) in the case of an Original Issue Discount Debt Security, the
term shall mean the amount as specified in such Debt Security that would then be
due and payable upon redemption or acceleration of the maturity thereof and (ii)
in the case of a Debt Security denominated in a foreign currency or composite
currency, for purposes of determining the aggregate principal amount of Debt
Securities which shall have voted or given consent with respect to any matter,
the term shall mean the U.S. dollar equivalent, determined as of the issue date,
of the principal amount (determined, in the case of an Original Issue Discount
Debt Security, pursuant to (i) above) of such Debt Security.
"Real Property Indebtedness" means Indebtedness secured by
real property acquired by the Company or its Restricted Subsidiaries after the
date of this Indenture, including both mortgage and lease financing.
"Registered Debt Security" means any Debt Security established
pursuant to Section 2.02 which is payable to the registered holder thereof.
"Registrar" has the meaning specified in Section 2.05.
"Remarketable Securities" has the meaning specified in
Section 3.07.
"Responsible Officer", when used with respect to the Trustee,
shall mean any officer or assistant officer of the Trustee within the Corporate
Trust Administration unit of the Trustee who has responsibility for the
administration of this Indenture and, for the purposes of Sections 7.01(3) (B)
and 7.05, also means any other officer or officers of the Trustee to whom any
corporate trust matter is referred because of such person's knowledge of and
familiarity with a particular subject.
"Restricted Subsidiary" means any Subsidiary other than
Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means Indebtedness secured by pledge
of, or mortgage, lien or security interest on, or title to any property, as well
as any unsecured Indebtedness of any Restricted Subsidiary other than a Foreign
Financing Subsidiary.
"Series" or "Series of Debt Securities" means the series of
debentures, notes, bond or other evidences of Indebtedness of the Company
established in a supplemental indenture or by or pursuant to a Board Resolution
and authenticated and delivered under this Indenture.
"Subordinated Indebtedness" means Indebtedness which is
expressly made subordinate and junior in rank and right of payment to the Debt
Securities and other
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such indebtedness as may be specified or characterized in the instruments
evidencing the Subordinated Indebtedness or the indenture of other such similar
instrument under which it is issued.
"Subsidiary" means any corporation of which the Company,
directly or through one or more Subsidiaries, owns more than 50% of the shares
of Voting Stock.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
xx.xx. 77aaa-77bbbb) as in effect on the date shown above, except as provided in
Section 9.04.
"Trustee" means the party named as Trustee above until a
successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture and thereafter means the successor.
"United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
any other areas subject its jurisdiction.
"U.S. Government Obligations" means:
(1) direct obligations of the United States of America for the
payment of which the full faith and credit of the United States of America is
pledged; or
(2) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America.
"U.S. Person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States or any political subdivision thereof, or any
estate or trust the income of which is subject to United States Federal income
taxation regardless of its source.
"Unrestricted Subsidiary" means (1) any Subsidiary (other than
a Foreign Financing Subsidiary) substantially all of the property of which is
located or substantially all of the business of which is conducted outside of
the United States of America or its possessions, Canada or the United Kingdom,
and (2) any other Subsidiary (including, if so designated, a Foreign Financing
Subsidiary) so designated by the Board of Directors or the Chief Executive
Officer of the Company.
"Voting Stock" means stock of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors or other governing body of a corporation (other than
stock having such power by reason of the happening of any contingency).
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT. Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by
6
reference in and made a part of this Indenture. The following terms used in this
Indenture have the following TIA meanings:
the "Company" means obligor on the indenture securities.
this "Indenture" means indenture to be qualified.
"SEC" means the Commission.
"Debt Securities" means the indenture securities.
"Debt Securityholder" means an indenture security holder.
the "Trustee" means indenture trustee or institutional
trustee.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
SECTION 1.03. TRUST INDENTURE ACT. The provisions of TIA
Sections 310 through 317 that impose duties on any Person (including the
provisions automatically deemed included herein unless expressly excluded by
this Indenture) are a part of and govern this Indenture upon and so long as the
Indenture and Debt Securities are subject to the TIA. If any provision of this
Indenture limits, qualifies or conflicts with any duties required by the TIA,
the imposed duties shall control. If a provision of the TIA permits a provision
of this Indenture and the TIA provision is amended, then the Indenture provision
shall be automatically amended to like effect.
Any reference to a requirement under the TIA shall only apply
upon and so long as the Indenture is qualified under and subject to the TIA.
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) "or" is not exclusive;
(3) words in the singular include the plural; and in the
plural include the singular;
(4) all references in this table to designated "Articles,"
"Sections," and other subdivisions are to designated Articles, Sections
and other subdivisions of this Indenture as originally executed; and
(5) "herein," "hereof," and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
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SECTION 1.05. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles ("GAAP") as in effect on June 30, 2003. If any
changes in GAAP are hereafter required or permitted and are adopted by the
Company or any of its Subsidiaries, or the Company or any of its Subsidiaries
shall change its application of GAAP with respect to any off-balance sheet
liabilities or otherwise, in each case with the agreement of its independent
certified public accountants and such changes, if applicable, could result in a
change in the methods of calculation of any of the financial covenants, tests,
restrictions or standards herein or in the related definitions or terms used
therein ("Accounting Changes"), then the Company, may, in its sole discretion,
give effect to such changes in the calculation of such financial covenants,
tests, restrictions or standards.
ARTICLE II
THE DEBT SECURITIES
SECTION 2.01. ISSUABLE IN SERIES. The aggregate Principal
amount of Debt Securities which may be authenticated and delivered under this
Indenture is unlimited. The Debt Securities may be issued in one or more Series.
The form of Debt Securities of each Series shall be established by or pursuant
to a Board Resolution or in one or more indenture supplements hereto at or prior
to the issuance of such Debt Securities. Debt Securities of any one Series shall
be substantially identical in all respects except as to denomination, maturity
date, interest rate, if any, and except as may otherwise be provided in or
pursuant to any Board Resolution or in any indenture supplements hereto. Debt
Securities may differ between Series, in respect of any matter. All Series of
Debt Securities shall be equally and ratably entitled to the benefits of this
Indenture. Each Debt Security shall be dated the date of its authentication.
SECTION 2.02. ESTABLISHMENT OF TERMS OF SERIES OF DEBT
SECURITIES. At or prior to the issuance of any Series of Debt Securities, the
following shall be established by or pursuant to a Board Resolution and set
forth in an Officers' Certificate or established in one or more indenture
supplements hereto:
(1) the title of the Debt Securities of the Series (which
shall distinguish the Debt Securities of the Series from the Debt
Securities of any other Series);
(2) any limit upon the aggregate Principal amount of the Debt
Securities of the Series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Debt Securities of the Series pursuant to Section 2.08, 2.09,
2.12 or 2.16);
(3) the Person to whom any interest on any Registered Debt
Securities of the Series shall be payable if other than the Person in
whose name that Debt Security is registered at the close of business on
the record date for such interest;
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(4) the date or dates on which the Principal of the Debt
Securities of the Series is payable;
(5) the rate or rates at which the Debt Securities of the
Series shall bear interest or the method for calculating such rate or
rates, the date or dates from which such interest shall accrue, the
dates on which such interest shall be payable and the record date for
the interest payable on any Registered Debt Securities on any interest
payment date, if other than in the manner provided in Section 4.01;
(6) the place or places where, subject to the provisions of
Section 4.01, the Principal of and interest on Debt Securities of the
Series shall be payable and, if different, the places where, subject to
the provisions of Section 2.08, any Registered Debt Securities of the
Series may be surrendered for registration of transfer, where Debt
Securities of the Series may be surrendered for exchange and where
notices and demands to or upon the Company in respect of the Debt
Securities of the Series and this Indenture may be served;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Debt Securities of the
Series may be redeemed, in whole or in part, at the option of the
Company;
(8) the obligation, if any, of the Company to redeem or
purchase Debt Securities of the Series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, the period
or periods within which, the price or prices at which and the terms and
conditions upon which Debt Securities of the Series shall be redeemed
or purchased, in whole or in part, pursuant to such obligation and
provisions, if any, for the remarketing of such Securities;
(9) if other than denominations of 1,000 United States dollars
and any integral multiple thereof, the denominations in which Debt
Securities of the Series shall be issuable;
(10) the currency or currencies, including composite
currencies, in which payment of the Principal of and any interest on
the Debt Securities of the Series shall be payable if other than United
States dollars;
(11) in the case of Original Issue Discount Debt Securities,
the portion of the Principal amount of Debt Securities of the Series
which shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.02;
(12) the obligation, if any, of the Company to pay Additional
Amounts pursuant to Section 4.05;
(13) whether the Debt Securities of the Series shall be issued
in whole or in part in the form of a Global Registered Security or
Securities, the terms and conditions, if any, upon which such Global
Registered Security or Securities may be exchanged in whole or in part
for individual certificates evidencing Debt Securities, and the
Depositary for such Global Registered Security or Securities;
9
(14) any deletions from or modifications of or additions to
the (i) Events of Default set forth in Section 6.01, (ii) covenants of
the Company set forth in Article 4 or (iii) provisions set forth in
Article 8, which in any such case shall be applicable to the Debt
Securities of the Series;
(15) any other terms of the Debt Securities of the Series
(which terms shall not be inconsistent with the provisions of this
Indenture); and
(16) the form of the Debt Securities of the Series.
SECTION 2.03. EXECUTION AND AUTHENTICATION. Debt Securities
shall be executed by an Officer for the Company and attested by the Secretary or
an Assistant Secretary. Signatures shall be manual or facsimile.
If an Officer whose signature is on a Debt Security no longer
holds that office at the time the Debt Security is authenticated, the Debt
Security shall be valid nevertheless.
A Debt Security shall not be valid until authenticated by the
manual signature of the trustee or an authenticating agent. The signature shall
be conclusive evidence that the Debt Security has been authenticated under this
Indenture.
The Trustee shall at any time, and from time to time,
authenticate Debt Securities for original issue in an unlimited aggregate
Principal amount, upon receipt by the Trustee of a Company Order for the
authentication and delivery of such Debt Securities.
In authenticating such Debt Securities, and accepting the
additional responsibilities under this Indenture in relation to such Debt
Securities, the Trustee shall be entitled to receive, and (subject to Section
7.01) shall be fully protected in relying upon:
(1) a copy of the Board Resolution and, if applicable, the
Officers' Certificate delivered pursuant to such Board Resolution
relating to the establishment of the forms and terms of such Debt
Securities and, if applicable, an appropriate record of any action
taken pursuant to such Board Resolution;
(2) an executed supplemental indenture or an Officers'
Certificate setting forth the form and terms of the Debt Securities as
required by Section 2.02; and
(3) an Opinion of Counsel which shall state in effect:
(A) that the form or forms and terms of such Debt
Securities have been duly authorized by the Company and have
been established in conformity with the provisions of this
Indenture;
(B) that such Debt Securities have been duly
authorized and, when duly executed and delivered by the
Company and authenticated and
10
delivered by the Trustee in the manner and subject to any
conditions specified in such Opinion of Counsel, will have
been duly issued under this Indenture and will constitute
valid and legally binding obligations of the Company, entitled
to the benefits provided by this Indenture, enforceable in
accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles; and
(C) that all laws and requirements (including the
obtaining of all necessary authorizations, approvals and
consents, if any, of governmental bodies) in respect of the
execution and delivery by the Company of such Debt Securities
have been complied with and that authentication and delivery
of such Debt Securities by the Trustee will not violate the
terms of the Indenture.
The Trustee shall have the right to decline to authenticate
and deliver any Debt Securities under Section 2.03 if the Trustee, being advised
by counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees and/or vice presidents
shall determine that such action would adversely affect the Trustee's own
rights, duties or immunities under this Indenture or would otherwise expose the
Trustee to personal liability to existing Debt Securityholders.
Notwithstanding the provisions of Section 2.02 and of this
Section 2.03, if all the Debt Securities of a Series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate or supplemental indenture otherwise required pursuant to Section
2.02 or the other documents deliverable pursuant to Section 2.03(1), (2) and (3)
at or prior to the time of authentication of each Debt Security of such Series
if such documents are delivered at or prior to the time of authentication upon
original issuance of the first Debt Security of such Series to be issued.
The aggregate Principal amount of Debt Securities of any
Series outstanding at any time may not exceed any limit upon the maximum
Principal amount for such Series set forth in the Board Resolution or the
Officers' Certificate delivered pursuant to a Board Resolution or supplemental
indenture delivered pursuant to Section 2.02, subject to the provisions of
Section 2.09.
The Trustee may appoint an authenticating agent to
authenticate Debt Securities. An authenticating agent may authenticate Debt
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate with respect to the authentication of Debt Securities.
SECTION 2.04. CUSIP NUMBERS. The Company in issuing Debt
Securities of any Series may use "CUSIP," "ISIN" or other similar numbers (if
then
11
generally in use), and, if so, the Trustee shall use CUSIP, ISIN or such other
numbers in notices of redemption as a convenience to Holders of such Series;
PROVIDED that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Debt Securities of such
Series or as contained in any notice of a redemption and that reliance may be
placed only on the other identification numbers printed on the Debt Securities
of such Series, and any such redemption shall not be affected by any defect in
or omission of such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP, ISIN or such other numbers.
SECTION 2.05. REGISTRAR AND PAYING AGENT. Subject to the
provisions of Section 4.04, the Company shall maintain an office or agency in
The City of New York where Registered Debt Securities may be presented for
registration of transfer or for exchange ("Registrar") and an office or agency
in the Place of Payment where any Series of Debt Securities having such Place of
Payment may be presented for payment ("Paying Agent"). The Registrar shall keep
a register in accordance with the provisions of Section 4.04 with respect to
each Series of Registered Debt Securities and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents for each Series of Registered Debt Securities. The term
"Registrar" includes any co-registrar. The term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company shall notify the Trustee of the name
and address of any Agent not a party to this Indenture. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such. The Company
or any Subsidiary may act as Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and
Paying Agent.
SECTION 2.06. PAYING AGENT TO HOLD MONEY IN TRUST. The Company
shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent will hold in trust, for the benefit of Holders of any Series of
Debt Securities, or the Trustee, all money held by the Paying Agent for the
payment of Principal or interest on such Series of Debt Securities, and will
notify the Trustee of any default by the Company in making any such payment. If
the Company or a Subsidiary acts as a Paying Agent, it shall segregate the money
and hold it as a separate trust fund. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon doing so, the
Paying Agent shall have no further liability for the money.
SECTION 2.07. DEBT SECURITYHOLDER LISTS. The Trustee shall
preserve in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Registered Debt Securityholders of
each Series that includes Registered Debt Securities. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee on or before each interest
payment date and at such other times as the Trustee may request in writing a
list, in such form and as of such date as the Trustee may reasonably require, of
the names and addresses of Registered Debt Securityholders of each Series that
includes Registered Debt Securities.
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SECTION 2.08. TRANSFER AND EXCHANGE. Where Registered Debt
Securities of a Series are presented to the Registrar or a co-registrar with a
request to register, transfer or to exchange them for an equal Principal amount
of Registered Debt Securities of the same Series and date of maturity of other
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met. To permit registration of
transfer and exchanges the Trustee shall authenticate Registered Debt Securities
at the Registrar's request. The Company will not make any charge for any
registration of transfer or exchange but may require the payment of an amount
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Company shall not be required (1) to register the transfer
or exchange of any Debt Security during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of Debt
Securities of that Series selected for redemption under Section 3.03 and ending
at the close of business on the day of such mailing or (2) to register the
transfer or exchange of any Debt Security so selected for redemption in whole or
in part.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture, the Debt Securities or applicable law with respect to any
transfer or any interest in any Debt Security (including any transfers between
or among Depositary participants or owners or holders of beneficial interests in
any Global Registered Security) other than to require delivery of such
certificates and other documentation or evidence, if any, as are expressly
required by, and to do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.
SECTION 2.09. REPLACEMENT DEBT SECURITIES. If the Holder of a
Debt Security claims that the Debt Security has been lost, destroyed or
wrongfully taken, then, in the absence of notice to the Company that the Debt
Security has been acquired by a protected purchaser, the Company shall issue and
the Trustee shall authenticate a replacement Debt Security of the same Series
and date of maturity, if the Trustee's and the Company's requirements are met.
If required, an indemnity bond must be sufficient, in the judgment of the
Company and the Trustee, to protect the Company, the Trustee, any Agent or any
authenticating agent from any loss which any of them may suffer if a Debt
Security is replaced. The Company may charge for its expenses in replacing a
Debt Security.
Every replacement Debt Security is an obligation of the
Company.
SECTION 2.10. OUTSTANDING DEBT SECURITIES. Debt Securities
outstanding at any time are all Debt Securities authenticated by the Trustee
pursuant to this Indenture except for those canceled by it, reductions in the
interest in a Global Registered Security effected by the Trustee in accordance
with the provisions hereof, those delivered to it for cancellation, and those
described in this Section as not outstanding.
13
If a Debt Security is replaced pursuant to Section 2.09, it
ceases to be outstanding until the Trustee receives proof satisfactory to it
that the replaced Debt Security is held by a protected purchaser.
If the Paying Agent holds, on a redemption date or a maturity
date, money sufficient to pay Debt Securities of a Series payable on that date,
then on and after that date such Debt Securities cease to be outstanding and
interest then ceases to accrue.
A Debt Security does not cease to be outstanding because the
Company or an Affiliate holds the Debt Security.
SECTION 2.11. TREASURY DEBT SECURITIES FOR CERTAIN PURPOSES.
In determining whether the Holders of the required Principal amount of Debt
Securities of a Series have concurred in any direction, waiver or consent, Debt
Securities of such Series owned by the Company or an Affiliate shall be
disregarded and deemed not to be outstanding, except that, for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Debt Securities of such Series which a
Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith shall not
be disregarded if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right to deliver any such direction, waiver or consent with respect to
the Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor.
SECTION 2.12. TEMPORARY DEBT SECURITIES. Pending the
preparation of definitive Debt Securities, the Company may execute, and upon
receipt of a Company Order, the Trustee shall authenticate and deliver,
temporary Debt Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denominations,
substantially of the tenor of the definitive Debt Securities in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the Officers executing such Debt Securities may
determine as evidenced by their execution of such Debt Securities.
If temporary Debt Securities are issued, the Company will
cause definitive Debt Securities to be prepared without unreasonable delay.
After the preparation of definitive Debt Securities, the temporary Debt
Securities shall be exchangeable for definitive Debt Securities upon surrender
of the temporary Debt Securities at the office or agency of the Company
maintained for that purpose, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Debt Securities, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor one
or more definitive Debt Securities, of any authorized denominations and of like
series, tenor and aggregate Principal amount. Until so exchanged, the temporary
Debt Securities shall in all respects be entitled to the same benefits under
this Indenture as definitive Debt Securities.
SECTION 2.13. CANCELATION. The Company at any time may deliver
Debt Securities to the Trustee for cancellation. The Registrar and the Paying
Agent shall
14
forward to the Trustee any Debt Securities surrendered to them for transfer,
exchange or payment. The Trustee shall cancel all Debt Securities surrendered
for transfer, exchange, payment (except payment as provided in Section 3.07) or
cancellation and shall dispose of canceled Debt Securities in accordance with
its then customary procedures therefor or as the Company otherwise directs. The
Company may not issue new Debt Securities to replace Debt Securities that it has
paid (except Debt Securities paid pursuant to Section 3.07) or delivered to the
Trustee for cancellation.
SECTION 2.14. DEFAULTED INTEREST. If the Company defaults in a
payment of interest on a Series of Debt Securities, it shall, in the case of
Registered Debt Securities, pay the defaulted interest, plus, to the extent
lawful, any interest payable on the defaulted interest, to the Persons who are
Registered Debt Securityholders of such Series on a subsequent special record
date. The Company shall fix the special record date and payment date. At least
15 days before the special record date, the Company shall mail to the Trustee
and to each Holder of the Series a notice that states the special record date,
the payment date and the amount of defaulted interest to be paid. The Company
may pay defaulted interest in any other lawful manner.
SECTION 2.15. PERSONS DEEMED OWNERS. Prior to due presentment
of a Registered Debt Security for transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Registered Debt Security is registered as the owner of such Registered Debt
Security for the purpose of receiving payment of Principal of and (subject to
Section 2.14) interest on such Debt Security and for all other purposes
whatsoever, whether or not such Debt Security is overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Except to the extent otherwise provided in or pursuant to the
Board Resolution establishing a Series of Debt Securities, Persons (other than
the Holders thereof) holding beneficial interests in Global Registered
Securities shall not be deemed the Holders of any Debt Securities represented by
such Global Registered Securities.
None of the Company, the Trustee, any Paying Agent, any
authenticating agent or the Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of any
beneficial ownership interest in a Global Registered Security or any other
security issued in global form or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest.
SECTION 2.16. CERTAIN PROVISIONS RELATING TO GLOBAL REGISTERED
SECURITIES. If the Company shall establish pursuant to paragraph (13) of Section
2.02 that the Registered Debt Securities of a particular Series are to be issued
in whole or in part in the form of one or more Global Registered Securities,
then the Company shall execute and the Trustee shall, in accordance with Section
2.03 and the Company Order delivered to the Trustee thereunder with respect to
such Series, authenticate and deliver such Global Registered Security or
securities, which (i) shall represent and shall be denominated in an aggregate
amount equal to the aggregate Principal amount of the Debt Securities of such
Series to be represented by such Global Registered Security or
15
Securities, (ii) shall be registered in the name of the Depositary for such
Global Registered Security or Securities or its nominee, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instruction and (iv) unless otherwise specified by the Company pursuant to
Section 2.02, shall bear a legend substantially in the following form: "Unless
and until it is exchanged in whole or in part for individual certificates
evidencing the Debt Securities represented hereby, this Global Registered
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Notwithstanding any other provision of this Indenture, but
subject to the provisions of the following paragraph, unless otherwise specified
by the Company pursuant to Section 2.02(13) or unless the terms of a Global
Registered Security expressly permit such Global Registered Security to be
exchanged in whole or in part for individual certificates evidencing Registered
Debt Securities, a Global Registered Security may be transferred, in whole but
not in part in the manner provided in Section 2.08, only to a nominee of the
Depositary for such Global Registered Security, or to the Depositary, or to a
successor Depositary for such Global Registered Security selected or approved by
the Company, or to a nominee of such successor Depositary.
If at any time the Depositary for the Global Registered
Securities of a Series notifies the Company that it is unwilling or unable to
continue as Depositary for the Global Registered Securities of such Series or if
at any time the Depositary for the Global Registered Securities of such Series
shall no longer be eligible or in good standing under the Securities Exchange
Act of 1934, as amended, or any other applicable statute or regulation, the
Company shall appoint a successor Depositary with respect to such Global
Registered Security. If a successor Depositary for the Global Registered
Securities of such Series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such ineligibility, the
Company's election pursuant to Section 2.02(13) shall no longer be effective
with respect to the Global Registered Securities of such Series and the Company
will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual certificates evidencing Registered
Debt Securities of such Series in exchange for the Global Registered Securities
of such Series, will authenticate and deliver such certificates of like tenor
and terms in definitive form in an aggregate Principal amount equal to the
Principal amount of the Global Registered Security or Global Registered
Securities of such Series in exchange for such Global Registered Security or
Global Registered Securities.
The Company may at any time and in its sole discretion
determine that the Debt Securities of any Series issued or issuable in the form
of one or more Global Registered Securities shall no longer be represented by
such Global Registered Security or Securities. In such event the Company will
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of individual certificates evidencing Registered Debt Securities of
such Series in exchange in whole or in part for such Global Registered Security,
will authenticate and deliver such certificates of like tenor and terms in
definitive form in an aggregate Principal amount equal to the Principal amount
of such
16
Global Registered Security or Securities of such Series in exchange for such
Global Registered Security or Securities.
If specified by the Company pursuant to Section 2.02(13) with
respect to a Series of Debt Securities issued or issuable in the form of one or
more Global Registered Securities, the Depositary for any such Global Registered
Security may at its option surrender such Global Registered Security in exchange
in whole or in part for individual certificates evidencing Registered Debt
Securities of such Series of like tenor and terms in definitive form on such
terms as are acceptable to the Company and such Depositary. Thereupon the
Company shall execute, and the Trustee shall authenticate and deliver, without
service charge, (A) to each Person specified by such Depositary a new
certificate or certificates evidencing Registered Debt Securities of the same
Series of like tenor and terms and of any authorized denomination as requested
by such Person in aggregate Principal amount equal to and in exchange for such
Person's beneficial interest in the Global Registered Security; and (B) to such
Depositary a new Global Registered Security of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the Principal
amount of the surrendered Global Registered Security and the aggregate Principal
amount of certificates evidencing Registered Debt Securities delivered to
Holders thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual certificates evidencing Registered Debt Securities in
authorized denominations upon the exchange of the entire Principal amount of a
Global Registered Security for individual Registered Debt Securities, such
Global Registered Security shall be cancelled by the Trustee. Certificates
issued in exchange for a Global Registered Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Registered Security, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Trustee or
the Registrar. Provided that the Company and the Trustee or the Registrar have
so agreed, the Trustee shall deliver such certificates to the Persons in whose
names the newly issued Registered Debt Securities are registered.
Until such time as the Depositary notifies the Company that it
is willing and able to make any election on behalf of the Persons having a
beneficial interest in a Global Registered Security entitled to be made by the
Holder of such Debt Security relating to the payment of Principal of and
interest on such Debt Securities, Debt Securities denominated in a foreign
currency will not be issued in the form of a Global Registered Security.
The transfer and exchange of beneficial interests in a Global
Registered Security shall be effected in accordance with the provisions of this
Indenture and the Applicable Procedures.
The Company, the Trustee and the Agents shall not be
responsible for any acts or omissions of a Depositary, or for any Depositary
records of beneficial ownership interests or for any transactions between the
Depositary and beneficial owners.
17
With respect to any Global Registered Security, nothing herein
shall prevent the Company, the Trustee, or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by a Depositary or impair, as between a Depositary and
holders of beneficial interests in any Global Registered Security, the operation
of customary practices governing the exercise of the rights of the Depositary as
Holder of such Global Registered Security.
ARTICLE III
REDEMPTION
SECTION 3.01. NOTICE TO TRUSTEE. The Company may, with respect
to any Series of Debt Securities, reserve the right to redeem and pay the Series
of Debt Securities, or any part thereof, or may covenant to redeem and pay the
Series of Debt Securities or any part thereof before maturity at such time and
on such terms as provided for in the supplemental indenture or the Board
Resolution or an Officers' Certificate pursuant thereto under which the Series
of Debt Securities was issued. If a Series of Debt Securities is redeemable and
the Company wants or is obligated to redeem all or part of the Series of Debt
Securities pursuant to the terms of the supplemental indenture or the Board
Resolution or an Officers' Certificate pursuant thereto under which the Series
of Debt Securities was issued, it shall notify the Trustee of the redemption
date and the Principal amount of the Series of Debt Securities to be redeemed.
The Company shall give the notice at least 60 days before the redemption date
(or such shorter notice as may be acceptable to the Trustee).
SECTION 3.02. SELECTION OF DEBT SECURITIES TO BE REDEEMED. If
less than all the Debt Securities of a Series are to be redeemed, the Trustee
shall select the Debt Securities of the Series to be redeemed by a method that
complies with the requirements, if any, of any stock exchange on which the Debt
Securities are listed and that the Trustee considers fair and appropriate, which
may include selection pro rata or by lot. The Trustee shall make the selection
and notify the Company in writing of the Debt Securities selected for redemption
within ten days after receipt of notice from the Company. The Trustee may select
for redemption portions of the Principal of Debt Securities of the Series that
have denominations larger than $1,000. Debt Securities of the Series and
portions of them it selects shall be in amounts of $1,000 or integral multiples
of $1,000 or, with respect to Debt Securities of any Series issuable in other
denominations pursuant to Section 2.02(9), the minimum Principal denomination
for each Series and integral multiples thereof. Provisions of this Indenture
that apply to Debt Securities of a Series called for redemption also apply to
portions of Debt Securities of that Series called for redemption. Any redemption
affecting a Global Registered Security shall be made in accordance with the
provisions of this Indenture and the Applicable Procedures.
18
SECTION 3.03. NOTICE OF REDEMPTION. At least 30 days but not
more than 60 days before a redemption date, the Company shall give notice in the
manner provided in Section 10.02 to each Holder whose Debt Securities are to be
redeemed.
Except as otherwise provided in Section 2.02, the notice shall
identify the Debt Securities of the Series to be redeemed and shall state:
(1) The redemption date;
(2) the redemption price (or, if not known, the manner of
calculation thereof);
(3) the name and address of the Paying Agent;
(4) that Debt Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(5) that, unless the Company defaults in making such
redemption payment, interest on Debt Securities (or portion thereof)
called for redemption ceases to accrue on and after the redemption
date; and
(6) list the CUSIP, ISIN or other similar numbers referred to
in Section 2.04.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
shall have received such notice. In any case, failure to give notice by mail or
any defect in notices to the Holder of a Series of Debt Securities designated
for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debt Security of such Series.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice is
mailed pursuant to Section 3.03, Debt Securities called for redemption become
due and payable on the redemption date and at the redemption price stated in the
notice. Upon surrender to the Paying Agent, such Debt Securities shall be paid
at the redemption price stated in the notice plus accrued interest to the
redemption date.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. On or before the
redemption date, the Company shall deposit with the Paying Agent money
sufficient to pay the redemption price of and accrued interest on all Debt
Securities to be redeemed on that date.
SECTION 3.06. DEBT SECURITIES REDEEMED IN PART. Upon surrender
of a Debt Security that is redeemed in part, the Trustee shall authenticate for
the Holder a new
19
Debt Security of the same Series and the same maturity equal in Principal amount
to the unredeemed portion of the Debt Security surrendered.
SECTION 3.07. REMARKETING OF REMARKETABLE SECURITIES.
Securities of any Series which are payable at the option of the Holders thereof
before their stated maturity (other than upon acceleration pursuant to Section
6.02) ("Remarketable Securities"), shall be paid in accordance with the terms of
the Board Resolution or supplemental indenture authorizing such Series. The
payment of any Principal amount of Remarketable Securities pursuant to such
option for purposes of Section 2.13, shall not operate as a payment of the
indebtedness represented by such Remarketable Securities unless and until the
Company, at its option, shall deliver or surrender the same to the Trustee with
a directive that such Remarketable Securities be cancelled. In connection with
any such payment of Remarketable Securities, the Company may, in lieu of
purchasing such Remarketable Securities, arrange for the purchase of any such
Remarketable Securities by an agreement with one or more investment bankers or
other purchasers to purchase Remarketable Securities by paying to the Holders of
such Remarketable Securities on or before the close of business on the payment
date upon which such option may be exercised, an amount not less than the
aggregate amount (including accrued interest, if any) payable by the Company,
upon exercise of such option and the obligation of the Company to pay such
amount in respect of such Remarketable Securities shall be satisfied and
discharged to the extent such amount is so paid by such purchasers.
ARTICLE IV
COVENANTS
SECTION 4.01. PAYMENT OF DEBT SECURITIES. The Company shall
pay the Principal of and interest on the Debt Securities on the dates and in the
manner provided in the Debt Securities. An installment of Principal or interest
shall be considered paid on the date it is due if the Trustee or Paying Agent
holds on that date money designated for and sufficient to pay the installment.
Interest on any Registered Debt Security which is payable, and
is punctually paid or duly provided for, on any interest payment date shall be
paid to the Person in whose name that Debt Security is registered at the close
of business on the regular record date for such interest.
Interest on overdue Principal shall be paid at the rate borne
by the Debt Securities of that Series; interest on overdue installments of
interest shall be paid at the same rate to the extent lawful.
SECTION 4.02. SEC REPORTS. The Company shall file with the
Trustee, within 30 days after it files them with the SEC, 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 SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Securities Exchange
20
Act of 1934. The Company also shall comply with the other provisions of TIA ss.
314(a). Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute notice or constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on the Officers' Certificates).
SECTION 4.03. COMPLIANCE CERTIFICATE. The Company shall
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company, a certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of such
obligor's compliance with all conditions and covenants under this Indenture. If
they do, the certificate shall describe the Default. The certificate need not
comply with Section 10.05.
SECTION 4.04. MAINTENANCE OF OFFICE OR AGENCY. If Debt
Securities of a Series are issuable only as Registered Debt Securities, the
Company will maintain in each Place of Payment for such Series an office or
agency where Debt Securities of that Series may be presented or surrendered for
payment, transfer or exchange, as the case may be and where notices and demands
to or upon the Company in respect of the Debt Securities of that Series and this
Indenture may be served. If at any time the Company shall fail to maintain any
such office or agency in respect of any Series of Debt Securities or shall fail
to furnish the Trustee with the address thereof, such presentations, and
surrenders of Debt Securities of that Series may be made and notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive such respective
presentations, surrenders, notices and demands.
SECTION 4.05. ADDITIONAL AMOUNTS. If the Debt Securities of a
Series provide for the payment of Additional Amounts, the Company will pay to
the Holder of any Debt Security of such Series Additional Amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the Principal of or interest on, or in respect of, any Debt Security
of any Series, such mention shall be deemed to include mention of the payment of
any Additional Amounts provided for pursuant to this Section.
If the Debt Securities of a Series provide for the payment of
Additional Amounts, at least 10 days prior to the first interest payment date
(or if the Debt Securities of that Series will not bear interest prior to
maturity, the first day on which a payment of Principal is made) on which
withholding for or on account of any tax, assessment or other governmental
charge described in the Debt Securities of that Series would be imposed and at
least 10 days prior to each such 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 will furnish the Trustee and
the Company's Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate specifying by country the amount, if any, required to be
withheld on such payments to such Holders of Debt Securities and the Company
will pay to the Trustee or such Paying Agent the Additional Amounts required by
such Debt Security and this Section. The Company
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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 or in connection with actions
taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
SECTION 4.06. LIMITATION ON SECURED INDEBTEDNESS. The Company
will not, and will not permit any Restricted Subsidiary to create, incur or
assume any Secured Indebtedness unless the Debt Securities then outstanding are
equally and ratably secured, with the following exceptions:
(1) any Secured Indebtedness existing at the date of this
Indenture,
(2) any Indebtedness of a corporation in existence at the time
such corporation becomes a Restricted Subsidiary,
(3) any After-Acquired Indebtedness,
(4) any Intercompany Indebtedness secured in favor of the
Company or any Restricted Subsidiary,
(5) any Indebtedness deemed to be Secured Indebtedness by
virtue of any of the following liens or charges which are not yet due
or are payable without penalty or of which the amount, applicability or
validity is being contested in good faith by appropriate proceedings
and for which the Company or Restricted subsidiary shall have set aside
on its books reserves which it deems to be adequate with respect
thereto:
(A) liens for taxes, assessments or other
governmental charges,
(B) security given in the ordinary course of business
to any governmental agency or other body approved by law or
governmental regulation in order to allow the Company or
Restricted Subsidiary to maintain self-insurance, or to
participate in any fund or participate in any benefits in
connection with workmen's compensation, unemployment
insurance, old age pensions or other social security, or for
any other purpose at any time required by law or governmental
regulation as a condition to the transaction of business or
the exercise of any privilege or license,
(C) any encumbrances consisting of zoning
restrictions, exceptions, easements, leases or other like
restrictions on the use of real property which do not
materially impair the use or such property,
(D) mechanic's, carrier's workmen's, warehouseman's
landlord's or other like liens arising in the ordinary course
of business, including liens incident to construction, and the
normal extension of trade credit by equipment manufacturers
and dealers,
22
(E) any inchoate liens arising under the Employee
Retirement Income Security Act of 1974, as amended, to secure
any contingent liability of the Company or a Restricted
Subsidiary, and
(F) other liens incidental to the conduct of business
or ownership of property and assets which were not incurred in
connection with the borrowing of money and which do not in the
aggregate materially detract from the value of the property or
assets, taken as a whole, of the Company or any of its
Restricted Subsidiaries, or materially impair the use thereof,
(6) any industrial revenue bond Indebtedness,
(7) any Real Property Indebtedness,
(8) any Leasing Indebtedness not to exceed a total of 10% of
Consolidated Net Tangible Assets, and
(9) all other Secured Indebtedness (in addition to that
otherwise permitted in paragraphs (1) to (8) above) plus additional
Leasing Indebtedness (in addition to that in (8) above) not to exceed a
total of 20% of Consolidated Net Tangible Assets.
SECTION 4.07. LIMITATION ON INVESTMENTS IN UNRESTRICTED
SUBSIDIARIES. The Company will not, and will not permit any Restricted
Subsidiary to, make any investment in, or transfer any assets to, an
Unrestricted Subsidiary if immediately thereafter the Company would be in breach
or in default in the performance of any covenant or warranty of the Company
contained in this Indenture.
SECTION 4.08. LIMITATION ON PERMITTING RESTRICTED SUBSIDIARIES
TO BECOME UNRESTRICTED SUBSIDIARIES AND UNRESTRICTED SUBSIDIARIES TO BECOME
RESTRICTED SUBSIDIARIES.
(1) The Company will not permit any Restricted Subsidiary to
become an Unrestricted Subsidiary unless immediately thereafter such
Subsidiary will not own, directly or indirectly, any capital stock of
any Restricted Subsidiary.
(2) The Company will not permit any Unrestricted Subsidiary to
become a Restricted Subsidiary unless immediately thereafter:
(A) no shares of the capital stock of such Subsidiary
shall be owned or held by any Unrestricted Subsidiary; and
(B) the Company would not be prohibited from issuing
any additional Secured Indebtedness by the provisions of
Section 4.06.
SECTION 4.09. WAIVER OF CERTAIN COVENANTS. The Company may
omit in any particular instance to comply with any covenant or condition set
forth in Section 4.06 through 4.08 if, before, or after the time for such
compliance, the Holders of at least a majority in Principal amount of all the
Debt Securities of each Series affected
23
thereby at the time outstanding shall, by notice to the Trustee, either waive
such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC. The Company shall
not consolidate with or merge into, or transfer all or substantially all of its
assets to, any Person unless:
(1) either the Company shall be the resulting or surviving
entity, or if another Person is the resulting or surviving entity, such
Person assumes by supplemental indenture all the obligations of the
Company under the Debt Securities and this Indenture;
(2) immediately after giving effect to such transaction no
Event of Default and no circumstances which, after notice or lapse of
time or both, would become an Event of Default shall have happened and
be continuing; and
(3) the Company shall deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture
comply with this Article V and that all conditions precedent herein
provided for relating to such transaction have been complied with.
If, upon any such consolidation, merger, or transfer, any
assets of the Company or any Restricted Subsidiary, or any shares of stock or
Indebtedness of any Restricted Subsidiary, would thereupon become subject to any
lien, security interest or other charge or encumbrance, or any other type of
preferential arrangement (any such lien, security interest, charge, encumbrance
or other type of preferential arrangement being herein called a "Mortgage"),
unless, after giving effect to such consolidation, merger or transfer, such
corporation could issue at least $1 of Secured Indebtedness pursuant to Section
4.06(9), the Company prior to such consolidation, merger or transfer, will
secure the outstanding Debt Securities of each Series hereunder, equally and
ratably with (or prior to) the indebtedness secured by such Mortgage.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED. Upon any
consolidation or merger, or any transfer of all or substantially all of the
assets of the Company in accordance with Section 5.01, the successor corporation
formed by such consolidation or into which the Company is merged or to which
such transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the
24
Company under this Indenture and the Debt Securities with the same effect as if
such successor corporation had been named as the Company herein and in the Debt
Securities.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" occurs
(unless the occurrence of such an event is specifically deleted or modified with
respect to Debt Securities of a particular Series in or pursuant to the
supplemental indenture or Board Resolution establishing such Series or in the
form of Debt Security for such Series) with respect to the Debt Securities of
any Series if:
(1) the Company defaults in the payment of interest on any
Debt Security of that Series when the same becomes due and payable and
the default continues for a period of 30 days;
(2) the Company defaults in the payment of the Principal of
any Debt Security of that Series when the same becomes due and payable
at maturity, upon redemption or otherwise;
(3) the Company fails to comply with any of its other
agreements or conditions in the Debt Securities of that Series, this
Indenture or any supplemental indenture under which the Debt Securities
may have been issued and the default continues for the period and after
the notice specified below;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of it
or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company in an
involuntary case,
(B) appoints a Custodian for the Company or for all
or substantially all of its property, or
(C) orders the liquidation of the Company,
25
and the order or decree remains unstayed and in effect for 30 days.
A Default under Section 6.01(3) is not an Event of Default
until the Trustee or the Holders of at least 25% in aggregate Principal amount
of all of the Debt Securities of that Series then outstanding notify the Company
of the Default, and the Company does not cure the Default within 60 days after
receipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default".
SECTION 6.02. ACCELERATION. If an Event of Default occurs with
respect to the Debt Securities of any Series and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in aggregate Principal
amount of all of the Debt Securities of that Series then outstanding by notice
to the Company and the Trustee, may declare the Principal (or, if the Debt
Securities of that Series are Original Issue Discount Debt Securities, such
portion of the Principal amount as may be specified in the terms of that Series)
and accrued interest on all the Debt Securities of that Series to be due and
payable. Upon such declaration, such Principal (or specified amount) and
interest on the Debt Securities of that Series shall be due and payable
immediately. The Holders of a majority in aggregate Principal amount of all of
the Debt Securities of that Series then outstanding by notice to the Trustee may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived except nonpayment of Principal or interest that has become
due solely because of the acceleration.
SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy by proceeding at
law or in equity to collect the payment of Principal or interest on the Debt
Securities of the Series that is in default or to enforce the performance of any
provision of such Debt Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Debt Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Debt Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.04. WAIVER OF PAST DEFAULTS. The Holders of a
majority in aggregate Principal amount of any Series of Debt Securities then
outstanding by notice to the Trustee may waive on behalf of Holders of all Debt
Securities of that Series, an existing Default or Event of Default with respect
to that Series and its consequences except a continuing Default or Event of
Default in the payment of the Principal of or interest on any Debt Security.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority
in aggregate Principal amount of any Series of Debt Securities then outstanding
may direct the time, method and place of conducting any proceeding for any
remedy available to the
26
Trustee or exercising any trust or power conferred on it with respect to such
Series of Debt Securities. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, is unduly prejudicial to
the rights of other Debt Securityholders, or would involve the Trustee in
personal liability.
SECTION 6.06. LIMITATION ON SUITS. A Debt Securityholder may
pursue a remedy with respect to this Indenture or the Debt Securities only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate Principal amount
of the Series of Debt Securities affected thereby make a written
request to the Trustee to pursue the remedy;
(3) such Holders offer to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) during such 60 day period, the Holders of a majority in
Principal amount of the Series of Debt Securities affected thereby do
not give the Trustee a direction inconsistent with the request.
A Debt Securityholder may not use this Indenture to prejudice
the rights of another Debt Securityholder or to obtain a preference or priority
over another Debt Securityholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of Principal and interest on a Debt Security, on or after the
respective due dates expressed in the Debt Security, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder.
Nothing in this Indenture limits or defers the right or
ability of Holders to petition for commencement of a case under applicable
Bankruptcy Law to the extent consistent with such Bankruptcy Law.
SECTION 6.08. COLLECTION SUITS BY TRUSTEE. If an Event of
Default specified in Section 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of Principal and interest remaining
unpaid and reasonable expenses of collection and any other amounts due under
Section 7.07 hereof.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee
may file such proofs of claim and other papers or documents and take any other
action as may be necessary or advisable in order to have the claims of the
Trustee and the Debt
27
Securityholders allowed in any judicial proceedings relative to the Company, its
creditors or its property.
SECTION 6.10. PRIORITIES. Any money collected by the Trustee
pursuant to this Article VI with respect to any Series, and any other money or
property distributable in respect of the Company's obligations under this
Indenture after an Event of Default shall be applied in the following order:
First: to the Trustee (including any predecessor Trustee) for
amounts due under Section 7.07 with respect to such Series;
Second: to Debt Securityholders for amounts due and unpaid on
the Debt Securities of such Series for Principal and interest, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Debt Securities of such Series for Principal and
interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any
such payment to Registered Debt Securityholders.
SECTION 6.11. UNDERTAKING FOR COSTS. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by
Holders of more than 10% in aggregate Principal amount of the Debt Securities of
any Series then outstanding.
ARTICLE VII
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. (1) If an Event of Default
has occurred and is continuing with respect to any Series of Debt Securities,
the Trustee shall exercise its rights and powers vested in it by this Indenture
and use the same degree of care and skill in their exercise as to that Series as
a prudent Person would exercise or use under circumstances in the conduct of its
own affairs.
(2) Except during the continuance of an Event of Default with
respect to any Series:
(A) the Trustee need perform only those duties with
respect to such Series that are specifically set forth in this
Indenture and no others.
28
(B) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.
However, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(3) The Trustee may not be relieved from liability for its own
negligent actions, its own negligent failure to act or its own willful
misconduct, except that:
(A) This paragraph does not limit the effect of
paragraphs (2) and (5) of this Section.
(B) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts.
(C) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
6.05.
(4) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (1), (2), (3) and (5) of this Section.
(5) The Trustee may refuse to perform any duty or exercise any
right or power which would require it to expend its own funds or risk any
liability if it shall reasonably believe that repayment of such funds or
adequate indemnity against such risk is not reasonably assured to it.
(6) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE. (1) The Trustee may rely on
any document believed by it to be genuine and have been signed or presented by
the proper Person. The Trustee need not investigate any fact or matter stated in
the document.
(2) Before the Trustee acts or refrains from acting, it may
consult with counsel or require an Officers' Certificate or an Opinion of
Counsel. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on the Officers' Certificate or Opinion of
Counsel. The Trustee may also consult with counsel on any matter relating to
this Indenture or the Debt Securities and the Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on the advice of
counsel.
29
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(5) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity reasonably satisfactory
to the Trustee against the reasonable costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction.
(6) The Trustee shall not be deemed to have notice of any
Default or Event of Default with respect to the Debt Securities of any Series
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is such a Default or Event of Default
is received at the Corporate Trust Office of the Trustee from the Company, any
other obligor on such Debt Securities or any Holder. Any such notice shall
reference this Indenture and the Debt Securities.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Debt
Securities and may otherwise deal with the Company or an Affiliate with the same
rights it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee makes no
representation as to and shall have no responsibility for the validity or
adequacy of this Indenture or the Debt Securities. It shall not be accountable
for the Company's use of the proceeds from the Debt Securities or for monies
paid over to the Company pursuant to the Indenture, and it shall not be
responsible for any statement in the Debt Securities other than its
authentication.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default or Event of
Default occurs with respect to any Series and is continuing and if it is known
to the Trustee, the Trustee shall give to each Debt Securityholder of such
Series notice of the Default or Event of Default in the manner provided for in
Section 10.02 within 90 days after it occurs. Except in the case of a Default or
Event of Default in payment on any Debt Security, the Trustee may withhold the
notice if and so long as its corporate trust committee or a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of Debt Securityholders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. If required
pursuant to TIA ss. 313(a), within 60 days after the yearly anniversary of the
date of this instrument as originally executed, the Trustee shall mail to each
Debt Securityholder a brief report dated as of such date that complies with TIA
ss. 313(a). The Trustee also shall comply with TIA ss. 313(b)(2).
30
A copy of each report at the time of its mailing to Debt
Securityholders shall be filed with the SEC and each stock exchange on which the
Debt Securities are listed. The Company agrees to notify the Trustee whenever
the Debt Securities become listed on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Company shall
pay to the Trustee from time to time reasonable compensation for its services,
including for any Agency capacity in which it acts. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it in connection with the performance of its
obligations under this Indenture or any Debt Securities. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents and
counsel.
The Company shall indemnify the Trustee (and any predecessor
Trustee) against any loss, liability or expense (including reasonable fees and
expenses of counsel) incurred by it, including for any Agency capacity in which
it acts, in connection with acceptance and administration of this trust and its
duties hereunder including the reasonable costs and expenses (including
reasonable fees and expenses of counsel) of defending itself against or
investigating any claim (whether asserted by the Company, any Holder or other
Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, or in connection with enforcing the provisions
of this Section 7.07. The Trustee shall notify the Company promptly of any claim
which it may seek indemnity; PROVIDED, HOWEVER, that any failure of the Trustee
to so notify the Company shall not relieve the Company of any of its obligations
hereunder.
The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through negligence,
willful misconduct or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Debt Securities on all money or
property held or collected by the Trustee, except that held in trust to pay
Principal and interest on particular Debt Securities.
Without prejudice to its rights hereunder, when the Trustee
incurs expenses or renders services after an Event of Default specified in
Section 6.01(4) or (5) occurs, the expenses (including the reasonable fees and
expenses of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
The obligations of the Company and the lien provided for in
this Section 7.07 shall survive the satisfaction and discharge of this
Indenture, the resignation or removal of the Trustee and termination of this
Indenture for any reason.
31
SECTION 7.08. REPLACEMENT OF TRUSTEE. A resignation or removal
of the Trustee and appointment of a successor Trustee shall become effective
only upon the successor Trustee's acceptance of appointment as provided in this
Section.
The Trustee may resign with respect to the Debt Securities of
one or more Series in writing at any time upon 30 days' prior written notice to
the Company. The Holders of a majority in Principal amount of the Debt
Securities of any Series may remove the Trustee with respect to that Series by
so notifying the Trustee and the Company. The Company may remove the Trustee
with respect to Debt Securities of one or more Series if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent, or an
order of relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a receiver or public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
With respect to any Series, if the Trustee resigns or is
removed or if a vacancy exists in the office of Trustee for any reason, the
Company shall promptly appoint a successor Trustee. There shall at all times be
a Trustee with respect to each Series.
If a successor Trustee is not appointed within 30 days after
the retiring Trustee resigns or if a successor Trustee does not take office
within 45 days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of a majority in aggregate Principal amount
of the Debt Securities of the affected Series may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, after
written request by any Debt Securityholder of a Series affected thereby who has
been a Debt Securityholder of that Series for at least six (6) months, such Debt
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have, and be bound by, all the rights, powers, duties
and agreements of the Trustee under this Indenture with respect to such Series.
A successor Trustee shall mail notice of its succession to each Registered Debt
Securityholder of a Series as to which it acts as Trustee. The retiring Trustee
shall promptly transfer all property held by it as Trustee with respect to that
or those Series as to which the retiring Trustee is retiring to the successor
Trustee, subject to the lien provided for in Section 7.07.
32
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee
consolidates with, mergers or converts into, or transfers all or substantially
all of its corporate trust business assets to, another Person, the successor
Person without any further act shall be the successor Trustee. As soon as
practicable, the successor Trustee shall mail a notice of its succession to the
Company. Any such successor shall nevertheless be eligible and qualified under
the provisions of Section 7.10.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. This Indenture
shall always have a Trustee who satisfies the requirements of TIA ss. 310(a)(1).
The Trustee shall always have a combined capital and surplus of at least
$50,000,000, as set forth in its most recent published annual report of
condition. The Trustee is subject to TIA ss. 310(b), including the optional
provision permitted by the second sentence of TIA ss. 310(b)(9) provided,
however, that (a) there shall be excluded from the operation of TIA ss.
310(b)(1) any indenture or indentures under which other securities of the
Company ranking equally in right of payment with the Debt Securities of any
Series, or certificates of interest or participation in other such securities
are outstanding if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met, and (b) the Trustee, in its capacity as trustee in respect of
the Debt Securities of any Series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect of the Debt Securities
of any other Series.
Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph of TIA
ss. 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY. The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS. By
irrevocably depositing in trust with the Trustee money or U.S. Government
Obligations sufficient to pay Principal and interest when due on the Debt
Securities of one or more Series until maturity, the Company may, on the 91st
day after such deposit, terminate all its obligations under this Indenture with
respect to any Series of Debt Securities which does not provide for the payment
of any Additional Amounts; PROVIDED, HOWEVER, that no Event of Default under
Sections 6.01.(4) and (5) or event with which notice or lapse of time or both
would constitute such an Event of Default shall have occurred and be continuing
on such date. Notwithstanding the termination of any obligations of the Company
with respect to Debt Securities of one or more Series in accordance with this
Section 8.01, the Company's obligations in Sections 2.05, 2.06, 2.07, 2.08,
2.09, 4.01, 7.07, 7.08, 8.03 and 8.04, and such other obligations of the Company
(whether under this Indenture or in or pursuant to the supplemental indenture or
Board Resolution establishing the terms of the Debt Securities of such Series or
in the form of Debt security
33
for such Series) as may be expressly stated, in the supplemental indenture or
Board Resolution establishing the terms of the Debt Securities of such Series or
in the form of Debt Security for such Series, to survive compliance by the
Company with this Section 8.01, with respect to such Debt Securities shall
survive until such Debt Securities are no longer outstanding. Thereafter the
Company's obligations in Sections 7.07, 8.03 and 8.04 with respect to such Debt
Securities shall survive. In order to have money available on a payment date to
pay Principal or interest upon such Debt Securities, the U.S. Government
Obligations shall be payable as to Principal or interest on or before such
payment date in such amounts as will provide the necessary money.
It shall be a condition to the deposit of cash and/or U.S.
Government Obligations and the termination of the Company's obligations with
respect to Debt Securities of one or more Series under this Section that the
Company deliver to the Trustee (1) an opinion of nationally recognized
independent tax counsel to the effect that: (A) Holders of such Debt Securities
will not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit and termination and (B) such Holders (and future Holders
of such Debt Securities) will be subject to tax in the same amount, manner and
timing as if such deposit and termination had not occurred; and (2) an Officers'
Certificate to the effect that under the laws in effect on the date such money
and/or U.S. Government Obligations are deposited with the Trustee, the amount
thereof will be sufficient, after payment of all Federal, state and local taxes
in respect thereof payable by the Trustee, to pay Principal and interest when
due on such Debt Securities.
After a deposit as provided herein, the Trustee shall, upon
request, acknowledge in writing the discharge of the Company's obligations with
respect to any Series of Debt Securities under this Indenture except for those
surviving obligations specified above.
SECTION 8.02. APPLICATION OF TRUST MONEY. The Trustee or
Paying Agent shall hold in trust, for the benefit of the Debt Securityholders,
all money and U.S. Government Obligations deposited with it (or into which such
money and U.S. Government Obligations are reinvested) pursuant to Section 8.01.
The Trustee or Paying Agent shall apply the deposited money and money from U.S.
Government Obligations in accordance with this Indenture to the timely payment
of Principal and interest on the Debt Securities of the Series with respect to
which the deposit was made. Any remaining amounts held in trust after payment of
Principal and interest on the Debt Securities shall be returned to the Company,
subject to the Trustee's rights to receive any payments under Section 7.07.
SECTION 8.03. REINSTATEMENT. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with
Section 8.01 by reason of 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 Debt Securities shall be
revived and reinstated as though no deposit had occurred pursuant to this
Article 8, until such time as the Trustee or Paying Agent is permitted to apply
all such money or U.S. Government Obligations in accordance with Section 8.01;
provided, however, that if the Company makes any
34
payment of Principal of or interest on any Debt Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Debt Securities to receive such payment from the money or
U.S. Government Obligations held by the Trustee or Paying Agent after payment in
full to the Holders.
SECTION 8.04. REPAYMENT TO COMPANY. The Trustee and the Paying
Agent shall promptly pay to the Company upon request any excess money or U.S.
Government Obligations held by them at any time.
Subject to applicable law governing abandoned property, the
Trustee and the Paying Agent shall pay to the Company any money held by them for
the payment of Principal or interest that remains unclaimed for two years unless
an abandoned property law designates otherwise. After that, Debt Securityholders
entitled to the money must look to the Company or such other Person for payment
as general creditors.
SECTION 8.05. INDEMNITY FOR GOVERNMENT OBLIGATIONS. The
Company shall pay and shall indemnify the Trustee and each Debt Securityholder
against any tax, fee or other charge imposed on or assessed against deposited
U.S. Government Obligations or the Principal and interest received on such
obligations.
ARTICLE IX
AMENDMENTS; SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. Notwithstanding
Section 9.02, the Company and the Trustee may enter into supplemental indentures
to amend this Indenture or the Debt Securities without consent of any Debt
Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Debt Securities in addition
to or in place of certificated Debt Securities;
(4) to make any change that does not adversely affect in any
material respect the rights of any Debt Securityholder under this
Indenture; or
(5) to provide for the issuance of and establish the form and
terms and conditions of Debt Securities of any Series or to add any
additional provisions to the Indenture to facilitate the issuance of
Debt Securities in currencies other than U.S. Dollars.
SECTION 9.02. WITH CONSENT OF HOLDERS. Subject to Section
9.03, the Company and the Trustee may enter into supplemental indentures to
amend this Indenture or the Debt Securities with the written consent of the
Holders of at least a
35
majority in aggregate Principal amount of the Debt Securities then outstanding
affected thereby. The Holders of a majority in Principal amount of the Debt
Securities of any Series by notice to the Trustee may waive, in respect of such
Series, compliance by the Company with any provision of this Indenture or the
Debt Securities except as specified in Section 9.03(4).
SECTION 9.03. LIMITATIONS. Without the consent of each Debt
Securityholder affected, an amendment or waiver may not:
(1) reduce the amount of Debt Securities whose Holders must
consent to an amendment or waiver;
(2) change the rate of or change the time for payment of
interest on any Debt Security or change the method of calculation if
the change would reduce the rate of interest thereon;
(3) change the Principal of or change the fixed maturity of
any Debt Security, or change any obligation of the Company to pay
Additional Amounts pursuant to Section 4.05, or reduce the amount of
Principal of an Original Issue Discount Debt Security that would be due
and payable upon a declaration of acceleration of the maturity thereof
pursuant to Section 6.02;
(4) waive a Default in the payment of the Principal or
interest on any Debt Security;
(5) make any Debt Security or any interest thereon payable at
any Place of Payment or in currency or currencies other than as stated
in the Debt Security; or
(6) make any change in Section 6.04, 6.07 or 9.03.
After an amendment or waiver under this Article 9 becomes
effective, the Company shall give a notice in the manner provided in Section
10.02 to the Debt Securityholders briefly describing the amendment or waiver.
SECTION 9.04. COMPLIANCE WITH TRUST INDENTURE ACT. Every
amendment to this Indenture or the Debt Securities shall be set forth in a
supplemental indenture that complies with the TIA as then in effect. The Trustee
is entitled to, and the Company shall provide, an Opinion of Counsel and an
Officers' Certificate stating that the Trustee's execution of any amendment or
supplemental indenture is permitted under this Article 9.
SECTION 9.05. REVOCATION AND EFFECT OF CONSENTS. Until an
amendment or waiver becomes effective, a consent to it by a Holder of a Debt
Security is a continuing consent by the Holder and every subsequent Holder of a
Debt Security or portion of a Debt Security that evidences the same debt as the
consenting Holder's Debt Security, even if notation of the consent is not made
on any Debt Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Debt Security or
36
portion of his Debt Security if the Trustee receives the notice of revocation
before the date the amendment or waiver becomes effective.
An amendment or waiver becomes effective in accordance with
its terms and thereafter binds every Debt Securityholder.
SECTION 9.06. NOTATION ON OR EXCHANGE OF DEBT SECURITIES. The
Trustee may place an appropriate notation about an amendment or waiver on any
Debt Security thereafter authenticated. The Company in exchange for Debt
Securities may issue and the Trustee shall authenticate new Debt Securities that
reflect the amendment or waiver.
SECTION 9.07. TRUSTEE PROTECTED. The Trustee need not sign any
supplemental indenture that adversely affects its rights.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS. If any provision
of this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 10.02. NOTICES. Any notice or communication by the
Company or the Trustee to the other is duly given if in writing and delivered in
Person or mailed by first-class mail:
If to the Company:
Ryder System, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Office of the Treasurer
If to the Trustee:
X.X. Xxxxxx Trust Company, National Association
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication to a Registered Debt
Securityholder shall be mailed by first-class mail to the address shown on the
register kept by the Registrar. Failure to mail a notice or communication to a
Registered Debt Securityholder or any
37
defect in it shall not affect its sufficiency with respect to other Registered
Debt Security-holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Registered
Debt Securityholders, it shall mail a copy to the Trustee and each Agent at the
same time.
SECTION 10.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Debt Securityholders may communicate pursuant to TIA ss. 312(b) with other Debt
Securityholders with respect to their rights under this Indenture or the Debt
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT. Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the Person 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 Person, 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
Person, such condition or covenant has been complied with.
SECTION 10.06. RULES BY TRUSTEE AND AGENTS. The Trustee may
make reasonable rules for action by or a meeting of Debt Securityholders. The
Paying Agent or Registrar may make reasonable rules and set reasonable
requirements for its functions.
38
SECTION 10.07. LEGAL HOLIDAYS. If a payment date is not a
Business Day at a Place of Payment, payment may be made at that place on the
next succeeding day that is a Business Day, and no interest shall accrue for the
intervening period. If a regular record date is not a Business Day at a Place of
Payment, then the record date shall be the next preceding day that is a Business
Day.
SECTION 10.08. GOVERNING LAW. The laws of the State of New
York (including, without limitation, Section 5-1401 of the New York General
Obligations Law or any successor to such statute) shall govern this Indenture
and the Debt Securities.
SECTION 10.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 10.10. NO RECOURSE AGAINST OTHERS. All liability
described in the Debt Securities of any director, officer, employee or
stockholder, as such, of the Company is waived and released.
SECTION 10.11. DUPLICATE ORIGINALS. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 10.12. SEVERABILITY. In case any one or more of the
provisions in this Indenture or in the Debt Securities shall be held invalid,
illegal or unenforceable, in any respect for any reason, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions shall not in any way be affected or impaired thereby, it
being intended that all of the provisions hereof shall be enforceable to the
full extent permitted by law.
SIGNATURES
RYDER SYSTEM, INC.
By:
-------------------------------------
Title:
X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------------
Title:
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
Before me personally appeared [Name], to me known and known to
me to be the individuals described in and who executed the foregoing instrument
as the [Title] of the above named RYDER SYSTEM, INC., a Florida corporation, and
acknowledged to and before me that he executed such instrument as such [Title]
of said corporation, and that he signed his name thereto by authority of the
Board of Directors of said corporation.
WITNESS my hand and official seal this day of , 2003.
------------------------------
Notary Public
My Commission Expires:
--------------------------
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
Before me personally appeared [Name], to me known and known to
me to be the individual described in and who executed the foregoing instrument
as the [Title] of X.X. XXXXXX XXXXX BANK, NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the United States
of America, and acknowledged to and before me that he executed such instrument
as such [Title] of said association and that he signed his name thereto by
authority of the Board of Directors of said association.
WITNESS my hand and official seal this day of , 2003.
------------------------------
Notary Public
My Commission Expires:
--------------------------
41
