EXHIBIT 4(D)
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EASTERN ENERGY LIMITED (ACN 064 651 118)
TO
THE BANK OF NEW YORK,
TRUSTEE
---------
INDENTURE
(FOR UNSECURED DEBT SECURITIES)
DATED AS OF DECEMBER 1, 1996
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TABLE OF CONTENTS
PARTIES..................................................................... 1
RECITAL OF THE COMPANY.......................................................7
ARTICLE ONE..................................................................7
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION......................7
SECTION 101. DEFINITIONS.................................................7
ACT....................................................................8
ADDITIONAL AMOUNTS.....................................................8
A$.....................................................................8
AFFILIATE..............................................................8
A-GAAP.................................................................8
ATTRIBUTABLE DEBT......................................................8
AUSTRALIA..............................................................8
AUTHENTICATING AGENT...................................................8
AUTHORIZED OFFICER.....................................................8
BOARD OF DIRECTORS.....................................................8
BOARD RESOLUTION.......................................................8
BUSINESS DAY...........................................................9
CAPITAL STOCK..........................................................9
COMMISSION.............................................................9
COMMON STOCK...........................................................9
COMPANY................................................................9
COMPANY REQUEST........................................................9
COMPANY ORDER..........................................................9
CONSOLIDATED NET TANGIBLE ASSETS.......................................9
CORPORATE TRUST OFFICE.................................................9
CORPORATION............................................................9
DEBT...................................................................9
DEFAULTED INTEREST.....................................................9
DOLLAR" or "$..........................................................9
EVENT OF DEFAULT.......................................................9
GOVERNMENTAL AUTHORITY.................................................9
GOVERNMENT OBLIGATIONS................................................10
HOLDER................................................................10
INDENTURE.............................................................10
INTEREST PAYMENT DATE.................................................10
JOINT VENTURE.........................................................10
MATURITY..............................................................10
MORTGAGE..............................................................10
OFFICER'S CERTIFICATE.................................................10
OPINION OF COUNSEL....................................................10
OUTSTANDING...........................................................11
PAYING AGENT..........................................................11
2
PERSON................................................................11
PLACE OF PAYMENT......................................................11
PREDECESSOR SECURITY..................................................12
PRINCIPAL PROPERTY....................................................12
REDEMPTION DATE.......................................................12
REDEMPTION PRICE......................................................12
REGULAR RECORD DATE...................................................12
RESPONSIBLE OFFICER...................................................12
RESTRICTED SUBSIDIARY.................................................12
SALE AND LEASE-BACK TRANSACTION.......................................12
SECURITIES............................................................12
SECURITY REGISTER.....................................................12
SECURITY REGISTRAR....................................................12
SPECIAL RECORD DATE...................................................12
STATED MATURITY.......................................................12
SUBSIDIARY............................................................13
TRUST INDENTURE ACT...................................................13
TRUSTEE...............................................................13
UNITED STATES.........................................................13
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.......................13
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.....................14
SECTION 104. ACTS OF HOLDERS............................................14
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.......................16
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER....................17
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT..........................17
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS...................17
SECTION 109. SUCCESSORS AND ASSIGNS.....................................18
SECTION 110. SEPARABILITY CLAUSE........................................18
SECTION 111. BENEFITS OF INDENTURE......................................18
SECTION 112. GOVERNING LAW..............................................18
SECTION 113. LEGAL HOLIDAYS.............................................18
SECTION 114. AGENT TO RECEIVE SERVICE OF PROCESS........................18
ARTICLE TWO.................................................................19
SECURITY FORMS..............................................................19
SECTION 201. FORMS GENERALLY............................................19
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION............19
ARTICLE THREE...............................................................20
The Securities..............................................................20
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.......................20
SECTION 302. DENOMINATIONS..............................................23
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.............23
SECTION 304. TEMPORARY SECURITIES.......................................25
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE........25
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES...........26
3
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.............27
SECTION 308. PERSONS DEEMED OWNERS......................................28
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.........................29
SECTION 310. COMPUTATION OF INTEREST....................................29
SECTION 311. ADDITIONAL AMOUNTS.........................................29
ARTICLE FOUR................................................................31
Redemption of Securities....................................................31
SECTION 401. APPLICABILITY OF ARTICLE...................................31
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE......................31
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.....................31
SECTION 404. NOTICE OF REDEMPTION.......................................32
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE......................33
SECTION 406. SECURITIES REDEEMED IN PART................................33
ARTICLE FIVE................................................................34
Sinking Funds...............................................................34
SECTION 501. APPLICABILITY OF ARTICLE...................................34
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES......34
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND..................34
ARTICLE SIX.................................................................35
Covenants...................................................................35
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.................35
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY............................35
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST..........36
SECTION 604. CORPORATE EXISTENCE........................................37
SECTION 605. MAINTENANCE OF PROPERTIES..................................38
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE..............38
SECTION 607. WAIVER OF CERTAIN COVENANTS................................38
SECTION 608. RESTRICTIONS ON SECURED DEBT...............................39
JOINT VENTURE.........................................................41
SECTION 609. LIMITATIONS ON SALE LEASE-BACK TRANSACTIONS................41
ATTRIBUTABLE DEBT.....................................................41
SALE AND LEASE-BACK TRANSACTION.......................................41
SECTION 610. DIVIDEND RESTRICTION.......................................41
ARTICLE SEVEN...............................................................42
Satisfaction and Discharge..................................................42
SECTION 701. DEFEASANCE.................................................42
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE....................44
SECTION 703. APPLICATION OF TRUST MONEY.................................45
ARTICLE EIGHT...............................................................46
Events of Default; Remedies.................................................46
SECTION 801. EVENTS OF DEFAULT..........................................46
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.........47
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.................................................48
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM...........................48
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SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.................................................49
SECTION 806. APPLICATION OF MONEY COLLECTED.............................49
SECTION 807. LIMITATION ON SUITS........................................50
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,.......50
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.........................51
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.............................51
SECTION 811. DELAY OR OMISSION NOT WAIVER...............................51
SECTION 812. CONTROL BY HOLDERS OF SECURITIES...........................51
SECTION 813. WAIVER OF PAST DEFAULTS....................................52
SECTION 814. UNDERTAKING FOR COSTS......................................52
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS...........................53
ARTICLE NINE................................................................53
The Trustee.................................................................53
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES........................53
SECTION 902. NOTICE OF DEFAULTS.........................................54
SECTION 903. CERTAIN RIGHTS OF TRUSTEE..................................54
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.....55
SECTION 905. MAY HOLD SECURITIES........................................55
SECTION 906. MONEY HELD IN TRUST........................................55
SECTION 907. COMPENSATION AND REIMBURSEMENT.............................55
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS....................56
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY....................56
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR..........57
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.....................59
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS................................................60
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY..........60
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES..........................61
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT........................62
ARTICLE TEN.................................................................64
Holders' Lists and Reports by Trustee and Company...........................64
SECTION 1001. LISTS OF HOLDERS..........................................64
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY............................64
ARTICLE ELEVEN..............................................................64
Consolidation, Merger, Conveyance or Other Transfer.........................64
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS......64
SECTION 1102. SUCCESSOR CORPORATION SUBSTITUTED.........................65
ARTICLE TWELVE..............................................................65
Supplemental Indentures.....................................................65
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS........65
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS...........67
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES......................68
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.........................69
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.......................69
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES........69
5
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE...............69
ARTICLE THIRTEEN............................................................70
Meetings of Holders; Action Without Meeting.................................70
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.................70
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS........................70
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS......................70
SECTION 1304. QUORUM; ACTION............................................71
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS;...71
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS...........72
SECTION 1307. ACTION WITHOUT MEETING....................................73
ARTICLE FOURTEEN............................................................73
Immunity of Incorporators, Stockholders, Officers and Directors.............73
SECTION 1401. LIABILITY SOLELY CORPORATE................................73
ARTICLE FIFTEEN.............................................................74
Securities of the First and Second Series...................................74
SECTION 1501. DESIGNATION OF SECURITIES OF THE FIRST AND SECOND SERIES..74
Testimonium.................................................................70
Signatures..................................................................70
Acknowledgements............................................................72
6
INDENTURE, dated as of December 1, 1996, between EASTERN
ENERGY LIMITED (ACN 064 651 118), a corporation duly organized and existing
under the laws of the State of Victoria, Commonwealth of Australia (herein
called the "Company"), having its principal office at Xxxxx 00, 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 0000, and THE BANK OF NEW YORK, a corporation of
the State of New York, having its principal corporate trust office at 000
Xxxxxxx Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000 as Trustee (herein called the
"Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), in an unlimited aggregate principal amount to be issued in one or
more series as contemplated herein; and all acts necessary to make this
Indenture a valid agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires, capitalized terms
used herein shall have the meanings assigned to them in Article One of this
Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(b) all terms used herein without definition which are defined in
the Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States at
the date of such computation or, at the election of the Company from time
to time, at the date of the execution and delivery of this Indenture; and
7
(d) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Nine, are defined in
that Article.
"ACT", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"ADDITIONAL AMOUNTS" has the meaning specified in Section 311.
"A$" means a dollar or other equivalent unit in such coin or
currency of Australia as at the time shall be legal tender for the payment of
public and private debts.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"CONTROL" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or through one or
more intermediaries, whether through the ownership of voting securities, by
contract or otherwise; and the terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"A-GAAP" means generally accepted accounting principles in
Australia, and, except as otherwise herein expressly provided, the term "A-GAAP"
with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in Australia at the date of such
computation or, at the election of the Company from time to time, at the date of
the execution and delivery of this Indenture; provided, however, that in
determining generally accepted accounting principles applicable to the Company,
the Company shall, to the extent required, conform to any order, rule or
regulation of any administrative agency, regulatory authority or other
governmental body having jurisdiction over the Company.
"ATTRIBUTABLE DEBT" has the meaning specified in Section 609.
"AUSTRALIA" means the Commonwealth of Australia.
"AUTHENTICATING AGENT" means any Person (other than the Company
or an Affiliate of the Company) authorized by the Trustee pursuant to Section
915 to act on behalf of the Trustee to authenticate one or more series of
Securities.
"AUTHORIZED OFFICER" means the Chairman, the Managing Director,
the Chief Financial Officer, the Controller, any General Manager, or any other
officer or agent of the Company duly authorized by the Board of Directors to act
in respect of matters relating to this Indenture.
"BOARD OF DIRECTORS" means either the board of directors of the
Company or any committee thereof duly authorized to act in respect of matters
relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or any Director of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
8
"BUSINESS DAY", when used with respect to a Place of Payment or
any other particular location specified in the Securities or this Indenture,
means any day, other than a Saturday or Sunday, which is not a day on which
banking institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation or executive
order to remain closed, except as may be otherwise specified as contemplated by
Section 301.
"CAPITAL STOCK" of a corporation means its common stock and its
preferred stock and preference stock, if any of such corporation.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the date of execution and delivery of
this Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body, if any, performing
such duties at such time.
"COMMON STOCK", when used in this Indenture with respect to an
Australian corporation, means the ordinary shares of such corporation.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or
order signed in the name of the Company by an Authorized Officer and delivered
to the Trustee.
"CONSOLIDATED NET TANGIBLE ASSETS" means the total amount of
assets (less depreciation, valuation and other applicable reserves) which under
A-GAAP would be included on a consolidated balance sheet of the Company and its
consolidated Subsidiaries after deducting therefrom all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of execution and delivery of this
Indenture is located at 000 Xxxxxxx Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
"CORPORATION" means a corporation, association, company, limited
liability company, joint stock company or business trust.
"DEBT" means notes, bonds, debentures or other similar evidences
of indebtedness for money borrowed.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DOLLAR" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal tender for
the payment of public and private debts.
"EVENT OF DEFAULT" has the meaning specified in Section 801.
"GOVERNMENTAL AUTHORITY" means the government of the United
States or of any State or Territory thereof or of the District of Columbia or of
any county, municipality or other political subdivision of any of the foregoing,
9
or any department, agency, authority or other instrumentality of any of the
foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the
United States and entitled to the benefit of the full faith
and credit thereof; and
(b) certificates, depositary receipts or other instruments
which evidence a direct ownership interest in obligations
described in clause (a) above or in any specific interest or
principal payments due in respect thereof; provided,
however, that the custodian of such obligations or specific
interest or principal payments shall be a bank or trust
company (which may include the Trustee or any Paying Agent)
subject to Federal or state supervision or examination with
a combined capital and surplus of at least $50,000,000; and
provided, further, that except as may be otherwise required
by law, such custodian shall be obligated to pay to the
holders of such certificates, depositary receipts or other
instruments the full amount received by such custodian in
respect of such obligations or specific payments and shall
not be permitted to make any deduction therefrom.
"HOLDER" means a Person in whose name a Security is registered in the
Security Register.
"INDENTURE" means this instrument as originally executed and delivered
and as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of a
particular series of Securities established as contemplated by Section
301.
"INTEREST PAYMENT DATE", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"JOINT VENTURE" has the meaning specified in Section 608.
"MATURITY", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal
becomes due and payable as provided in such Security or in this
Indenture, whether at the Stated Maturity, by declaration of
acceleration, upon call for redemption or otherwise.
"MORTGAGE" means any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or similar
encumbrance, whether on realty or personalty.
"OFFICER'S CERTIFICATE" means a certificate signed by an Authorized
Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Company, or other counsel reasonably acceptable to the
Trustee.
10
"OUTSTANDING", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in accordance with
Section 701; and
(c) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there
shall have been presented to the Trustee proof satisfactory
to it and the Company that such Securities are held by a
bona fide purchaser or purchasers in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this
Indenture, or the Outstanding Securities of any series, have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder or whether or not a quorum is present at a meeting of Holders of
Securities, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor
(unless the Company, such Affiliate or such obligor owns all Securities
Outstanding under this Indenture, or (except for purposes of actions to be
taken by Holders of more than one series voting as a class under Section
812) all Outstanding Securities of each such series, as the case may be,
determined without regard to this provision) shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which the
Trustee knows to be so owned shall be so disregarded; provided, however,
that Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor; and
provided, further, that, in the case of any Security the principal of
which is payable from time to time without presentment or surrender, the
principal amount of such Security that shall be deemed to be Outstanding
at any time for all purposes of this Indenture shall be the original
principal amount thereof less the aggregate amount of principal thereof
theretofore paid.
"PAYING AGENT" means any Person, including the Company, authorized by
the Company to pay the principal of, and premium, if any, or interest,
if any, on any Securities on behalf of the Company.
"PERSON" means any individual, corporation, partnership, joint venture,
trust or unincorporated organization or any Governmental Authority.
"PLACE OF PAYMENT", when used with respect to the Securities of any
series, means the place or places, specified as contemplated by Section
301, at which, subject to Section 602, principal of and premium, if
11
any, and interest, if any, on the Securities of such series are
payable.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition,
any Security authenticated and delivered under Section 306 in exchange
for or in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed (to the extent lawful) to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
"PRINCIPAL PROPERTY" means poles, towers, pole top structures,
conductors, lines, meters, timeswitches, substations, transformers, and
similar types of equipment (excluding all products marketed by the
Company or any of its Subsidiaries) constituting an electric
distribution system.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any
officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company which owns
a Principal Property.
"SALE AND LEASE-BACK TRANSACTION" has the meaning specified in Section
609.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any securities authenticated and
delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to
Section 307.
"STATED MATURITY", when used with respect to any obligation or any
installment of principal thereof or interest thereon, means the date on
which the principal of such obligation or such installment of principal
or interest is stated to be due and payable (without regard to any
provisions for redemption, prepayment, acceleration, purchase or
extension).
12
"SUBSIDIARY" means any corporation the majority of whose common stock
is owned by the Company or another Subsidiary.
"TRUST INDENTURE ACT" means, as of any time, the Trust Indenture Act of
1939, or any successor statute, as in effect at such time.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become
such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at
any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with
respect to Securities of that series.
"UNITED STATES" means the United States of America, its Territories,
its possessions and other areas subject to its political jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon
any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the
Company shall, if requested by the Trustee, furnish to the
Trustee an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to
the proposed action (including any covenants compliance with
which constitutes a condition precedent) have been complied
with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application
or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture
relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall
include:
(a) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such Person,
such Person has made such examination or investigation as is
necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
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SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as
to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable
care should know, that the certificate or opinion or
representations with respect to the matters upon which such
Officer's Certificate or opinion are based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or
opinion of, or representations by, any officer, employee or
agent of the Company stating that the information with respect
to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates,
statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form
one instrument.
Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officer's Certificate, Opinion of Counsel or
other document or instrument, a clerical, typographical or
other inadvertent or unintentional error or omission shall be
discovered therein, a new document or instrument may be
substituted therefor in corrected form with the same force and
effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution
and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or
delivered as of the date or dates required with respect to the
document or instrument for which it is substituted. Anything
in this Indenture to the contrary notwithstanding, if any such
corrective document or instrument indicates that action has
been taken by or at the request of the Company which could not
have been taken had the original document or instrument not
contained such error or omission, the action so taken shall
not be invalidated or otherwise rendered ineffective but shall
be and remain in full force and effect, except to the extent
that such action was a result of willful misconduct or bad
faith. Without limiting the generality of the foregoing, any
Securities issued under the authority of such defective
document or instrument shall nevertheless be the valid
obligations of the Company entitled to the benefits of this
Indenture equally and ratably with all other Outstanding
Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
14
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this
Indenture to be made, given or taken by Holders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing or, alternatively,
may be embodied in and evidenced by the record of Holders
voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called
and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 901) conclusive in
favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of
Holders shall be proved in the manner provided in Section
1306.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of
a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the
execution thereof or may be proved in any other manner which
the Trustee and the Company deem sufficient. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority.
(c) The principal amount and serial numbers of Securities
held by any Person, and the date of holding the same, shall
be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall
bind every future Holder of the same Security and the Holder
of every Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or
not notation of such action is made upon such Security.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite
percentage of principal amount of Securities for the action
contemplated by such instruments, any such instrument
executed and delivered by or on behalf of a Holder may be
revoked with respect to any or all of such Securities by
written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.
(f) Securities of any series authenticated and delivered
after any Act of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as
15
to any action taken by such Act of Holders. If the Company
shall so determine, new Securities of any series so modified
as to conform, in the opinion of the Trustee and the
Company, to such action may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
(g) If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, fix in advance a
record date for the determination of Holders entitled to
give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders
for the purposes of determining whether Holders of the
requisite proportion of the Outstanding Securities have
authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall
be computed as of the record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with, the Trustee by any Holder or
by the Company, or the Company by the Trustee or by any
Holder, shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and
delivered personally to an officer or other responsible
employee of the addressee, or transmitted by facsimile
transmission or other direct written electronic means to such
telephone number or other electronic communications address as
the parties hereto shall from time to time designate, or
transmitted by certified or registered mail, charges prepaid,
to the applicable address set opposite such party's name below
or to such other address as either party hereto may from time
to time designate:
If to the Trustee, to:
The Bank of New York
Corporate Trust Department
000 Xxxxxxx Xxxxxx, 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Vice President, Corporate Trust Administration
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Company, to:
Eastern Energy Limited (ACN 064 651 118)
16
Xxxxx 00, 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 0000
Attention: Chief Financial Officer
Telephone: (000) 0000-0000
Telecopy: (000) 0000-0000
Any communication contemplated herein shall be deemed to have
been made, given, furnished and filed if personally delivered,
on the date of delivery, if transmitted by facsimile
transmission or other direct written electronic means, on the
date of transmission, and if transmitted by certified or
registered mail, on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given, and shall be deemed given,
to Holders if in writing and mailed, first-class postage
prepaid, to each Holder affected by such event, at the address
of such Holder as it appears in the Security Register, not
later than the latest date, if any, and not earlier than the
earliest date, if any, prescribed for the giving of such
notice.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give
such notice to Holders by mail, then such notification as
shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders.
Any notice required by this Indenture may be waived in writing
by the Person entitled to receive such notice, either before
or after the event otherwise to be specified therein, and such
waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If and only if this Indenture becomes subject to the Trust
Indenture Act: if any provision of this Indenture limits,
qualifies or conflicts with another provision hereof which is
required or deemed to be included in this Indenture by, or is
otherwise governed by, any of the provisions of the Trust
Indenture Act, such other provision shall control; and if any
provision hereof otherwise conflicts with the Trust Indenture
Act, the Trust Indenture Act shall control, if applicable to
this Indenture.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
17
The Article and Section headings in this Indenture and the
Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
and Trustee shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties
hereto, their successors hereunder, and the Holders, any
benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and
construed in accordance with the internal laws of the State of
New York without regard to principles of conflicts of laws
thereof; provided, however, that all matters governing the
authorization by the Company of this Indenture and the
Securities will be governed by, and construed in accordance
with, the laws of the State of Victoria, Australia.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day
at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities other than a
provision in Securities of any series, or in the Board
Resolution or Officer's Certificate which establishes the
terms of the Securities of such series, which specifically
states that such provision shall apply in lieu of this
Section) payment of interest or principal and premium, if any,
need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place
of Payment, in each case with the same force and effect, and
in the same amount, as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, as the case may
be, and, if such payment is made or duly provided for on such
Business Day, no interest shall accrue on the amount so
payable for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be,
to such Business Day.
SECTION 114. AGENT TO RECEIVE SERVICE OF PROCESS.
18
Unless otherwise specified in an Officer's Certificate
delivered to the Trustee, Xxxx & Priest LLP in New York City
will be the authorized agent of the Company to receive service
of process in the State of New York.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the
indenture supplemental hereto establishing such series or in a
Board Resolution establishing such series, or in an Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required
or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with
the rules of any securities exchange or as may, consistently
herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
If the form or forms of Securities of any series are
established in a Board Resolution or in an Officer's
Certificate pursuant to a Board Resolution, such Board
Resolution and Officer's Certificate, if any, shall be
delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 301, the
Securities of each series shall be issuable in registered form
without coupons. The definitive Securities shall be produced
in such manner as shall be determined by the officers
executing such Securities, as evidenced by their execution
thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series
designated therein referred to in the
within-mentioned Indenture.
Dated:
--------------------------
as Trustee
By:
--------------------------------
Authorized Signatory
19
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Prior to
the authentication and delivery of Securities of any series
there shall be established by specification in a supplemental
indenture or in a Board Resolution, or in an Officer's
Certificate pursuant to a supplemental indenture or a Board
Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of
all other series);
(b) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
such series pursuant to Section 304, 305, 306, 406 or 1206
and except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific identification)
to whom interest on Securities of such series shall be
payable on any Interest Payment Date, if other than the
Persons in whose names such Securities (or one or more
Predecessor Securities) are registered at the close of
business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of the
Securities of such series is payable or any formulary or
other method or other means by which such date or dates
shall be determined, by reference or otherwise (without
regard to any provisions for redemption, prepayment,
acceleration, purchase or extension);
(e) the rate or rates at which the Securities of such series
shall bear interest, if any (including the rate or rates at
which overdue principal shall bear interest, if different
from the rate or rates at which such Securities shall bear
interest prior to Maturity, and, if applicable, the rate or
rates at which overdue premium or interest shall bear
interest, if any), or any formulary or other method or other
means by which such rate or rates shall be determined, by
reference or otherwise; the date or dates from which such
interest shall accrue; the Interest Payment Dates on which
such interest shall be payable and the Regular Record Date,
if any, for the interest payable on such Securities on any
Interest Payment Date; and the basis of computation of
interest, if other than as provided in Section 310;
(f) the place or places at which or methods by which (i) the
principal of and premium, if any, and interest, if any, on
Securities of such series shall be payable, (ii)
20
registration of transfer of Securities of such series may be
effected, (iii) exchanges of Securities of such series may
be effected and (iv) notices and demands to or upon the
Company in respect of the Securities of such series and this
Indenture may be served; the Security Registrar for such
series; and if such is the case, that the principal of such
Securities shall be payable without presentment or surrender
thereof;
(g) the period or periods within which, or the date or dates
on which, the price or prices at which and the terms and
conditions, if other than as provided in Article Four, upon
which the Securities of such series may be redeemed, in
whole or in part, at the option of the Company and any
restrictions on such redemptions, including but not limited
to a restriction on a partial redemption by the Company of
the Securities of any series, resulting in delisting of such
Securities from any national exchange;
(h) the obligation or obligations, if any, of the Company to
redeem or purchase the Securities of such series pursuant to
any sinking fund or other mandatory redemption provisions or
at the option of a Holder thereof and the period or periods
within which or the date or dates on which, the price or
prices at which and the terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in
part, pursuant to such obligation, and applicable exceptions
to the requirements of Section 404 in the case of mandatory
redemption or redemption at the option of the Holder;
(i) the denominations in which Securities of such series
shall be issuable if other than denominations of One Hundred
Thousand Dollars ($100,000) and any integral multiple of One
Thousand Dollars ($1,000) in excess thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and
premium, if any, and interest, if any, on the Securities of
such series shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or interest, if
any, on the Securities of such series are to be payable, at
the election of the Company or a Holder thereof, in a coin
or currency other than that in which the Securities are
stated to be payable, the period or periods within which and
the terms and conditions upon which, such election may be
made;
(l) if the principal of or premium, if any, or interest, if
any, on the Securities of such series are to be payable, or
are to be payable at the election of the Company or a Holder
thereof, in securities or other property, the type and
amount of such securities or other property, or the
formulary or other method or other means by which such
amount shall be determined, and the period or periods within
which, and the terms and conditions upon which, any such
election may be made;
(m) if the amount payable in respect of principal of or
premium, if any, or interest, if any, on the Securities of
such series may be determined with reference to an index or
other fact or event ascertainable outside this Indenture,
the manner in which such amounts shall be determined to the
21
extent not established pursuant to clause (e) of this
paragraph;
(n) if other than the principal amount thereof, the portion
of the principal amount of Securities of such series which
shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 802;
(o) any Events of Default, in addition to those specified in
Section 801, with respect to the Securities of such series,
and any covenants of the Company for the benefit of the
Holders of the Securities of such series, in addition to
those set forth in Article Six;
(p) the terms, if any, pursuant to which the Securities of
such series may be converted into or exchanged for shares of
Capital Stock or other securities of the Company or any
other Person;
(q) the obligations or instruments, if any, which shall be
considered to be Government Obligations in respect of the
Securities of such series denominated in a currency other
than Dollars or in a composite currency, and any additional
or alternative provisions for the reinstatement of the
Company's indebtedness in respect of such Securities after
the satisfaction and discharge thereof as provided in
Section 701;
(r) if the Securities of such series are to be issued in
global form, (i) any limitations on the rights of the Holder
or Holders of such Securities to transfer or exchange the
same or to obtain the registration of transfer thereof, (ii)
any limitations on the rights of the Holder or Holders
thereof to obtain certificates therefor in lieu of global
form and (iii) any and all other matters incidental to such
Securities;
(s) if the Securities of such series are to be issuable as
bearer securities, any and all matters incidental thereto
which are not specifically addressed in a supplemental
indenture as contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant to clause (r) of
this paragraph, any limitations on the rights of the Holders
of the Securities of such Series to transfer or exchange
such Securities or to obtain the registration of transfer
thereof; and if a service charge will be made for the
registration of transfer or exchange of Securities of such
series the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities
of such series;
(v) any collateral security, insurance or guarantee for
the Securities of such series;
(w) any rights or duties of another Person to assume the
obligations of the Company with respect to the Securities of
such series (whether as joint obligor, primary obligor,
secondary obligor or substitute obligor) and any rights or
duties to discharge and release any obligor with respect to
22
the Securities of such series or this Indenture to the
extent related to such series;
(x) any rights to change or eliminate any provision of this
Indenture or to add any new provision to this Indenture (by
supplemental indenture or otherwise) without the consent of
the Holders of the Securities of such series or with the
consent of the Holders of the Securities of such series as
specified for such series;
(y) the agent to receive service of process in the State of
New York, if other than Xxxx & Priest LLP in New York City;
and
(z) any other terms of the Securities of such series not
inconsistent with the provisions of this Indenture.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, the Securities of each
series shall be issuable in denominations of One Hundred
Thousand Dollars ($100,000) and any integral multiple of One
Thousand Dollars ($1,000) in excess thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, the Securities shall be
executed on behalf of the Company by an Authorized Officer and
may have the corporate seal of the Company affixed thereto or
reproduced thereon attested by any other Authorized Officer or
by the Secretary or an Assistant Secretary of the Company. The
signature of any or all of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution Authorized
Officers or the Secretary or an Assistant Secretary of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices
prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver Securities of a
series, for original issue, at one time or from time to time
in accordance with the Company Order referred to below, upon
receipt by the Trustee of:
(a) the instrument or instruments establishing the form or
forms and terms of such series, as provided in Sections
201 and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the
terms of such Securities shall not have been established in
an indenture supplemental hereto or in a Board Resolution,
23
or in an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated by
Sections 201 and 301, establishing such terms;
(c) the Securities of such series, executed on behalf of
the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities have been
duly authorized by the Company and have been
established in conformity with the provisions of
this Indenture;
(ii) the terms of such Securities have been duly
authorized by the Company and have been established
in conformity with the provisions of this
Indenture; and
(iii) such Securities, when authenticated and
delivered by the Trustee and issued and delivered
by the Company 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, and
enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or
affecting generally the enforcement of creditors'
rights, including, without limitation, bankruptcy
and insolvency laws and to general principles of
equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
If the form or terms of the Securities of any series have been
established by or pursuant to a Board Resolution or an
Officer's Certificate as permitted by Sections 201 or 301, the
Trustee shall not be required to authenticate such Securities
if the issuance of such Securities pursuant to this Indenture
will materially or adversely affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture
or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, each Security shall be
dated the date of its authentication.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, no Security shall be
entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee or an
Authenticating Agent by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder to the
Company, or any Person acting on its behalf, but shall never
have been issued and sold by the Company, and the Company
24
shall deliver such Security to the Trustee for cancellation as
provided in Section 309 together with a written statement
(which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in
lieu of which they are issued, with such appropriate
insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as
evidenced by their execution of such Securities; provided,
however, that temporary Securities need not recite specific
redemption, sinking fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, after the preparation
of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable, without
charge to the Holder thereof, for definitive Securities of
such series upon surrender of such temporary Securities at the
office or agency of the Company maintained pursuant to Section
602 in a Place of Payment for such Securities. Upon such
surrender of temporary Securities for such exchange, the
Company shall, except as aforesaid, execute and the Trustee
shall authenticate and deliver in exchange therefor definitive
Securities of the same series, of authorized denominations and
of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to
the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated
and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in each office designated
pursuant to Section 602, with respect to the Securities of
each series, a register (all registers kept in accordance with
this Section being collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the
registration of Securities of such series and the registration
of transfer thereof. The Company shall designate one Person to
maintain the Security Register for the Securities of each
series on a consolidated basis, and such Person is referred to
herein, with respect to such series, as the "Security
Registrar." Anything herein to the contrary notwithstanding,
the Company may designate one or more of its offices as an
office in which a register with respect to the Securities of
one or more series shall be maintained, and the Company may
25
designate itself the Security Registrar with respect to one or
more of such series. The Security Register shall be open for
inspection by the Trustee and the Company at all reasonable
times.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, upon surrender
for registration of transfer of any Security of such series at
the office or agency of the Company maintained pursuant to
Section 602 in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one
or more new Securities of the same series, of authorized
denominations and of like tenor and aggregate principal
amount.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, any Security of
such series may be exchanged at the option of the Holder, for
one or more new Securities of the same series, of authorized
denominations and of like tenor and aggregate principal
amount, upon surrender of the Securities to be exchanged at
any such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities delivered upon any registration of transfer or
exchange of Securities shall be valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered
upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company,
the Trustee or the Security Registrar) be duly endorsed or
shall be accompanied by a written instrument of transfer in
form satisfactory to the Company, the Trustee or the Security
Registrar, as the case may be, duly executed by the Holder
thereof or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301 with
respect to Securities of any series, no service charge shall
be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer
or exchange of Securities, other than exchanges pursuant to
Section 304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or to provide for
the registration of transfer of or the exchange of (a)
Securities of any series during a period of 15 days
immediately preceding the date of the mailing of any notice of
redemption of such Securities called for redemption or (b) any
Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed
in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
26
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same
series, and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the ownership of and the
destruction, loss or theft of any Security and (b) such
security or indemnity as may be reasonably required by them to
save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee
that such Security is held by a Person purporting to be the
owner of such Security, the Company shall execute and the
Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same
series, and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security
shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone other than
the Holder of such new Security, and any such new Security
shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities
of such series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, interest on any
Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to
the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the Holder on the
related Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the
27
Company, at its election in each case, as provided in clause
(a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a date (herein called
a "Special Record Date") for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of
such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on
or prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at
the expense of the Company, shall promptly cause notice of
the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such series
at the address of such Holder as it appears in the Security
Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the
close of business on such Special Record Date.
(b) The Company may make payment of any Defaulted Interest
on the Securities of any series in any other lawful manner
not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon
such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such
Security is registered as the absolute owner of such Security
for the purpose of receiving payment of principal of and
premium, if any, and (subject to Sections 305 and 307)
28
interest, if any, on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to
any Person other than the Security Registrar, be delivered to
the Security Registrar and, if not theretofore canceled, shall
be promptly canceled by the Security Registrar. The Company
may at any time deliver to the Security Registrar for
cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any
manner whatsoever or which the Company shall not have issued
and sold, and all Securities so delivered shall be promptly
canceled by the Security Registrar. No Securities shall be
authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by
the Security Registrar shall be disposed of in accordance with
a Company Order delivered to the Security Registrar and the
Trustee, and the Security Registrar shall promptly deliver a
certificate of disposition to the Trustee and the Company
unless, by a Company Order, similarly delivered, the Company
shall direct that canceled Securities be returned to it. The
Security Registrar shall promptly deliver evidence of any
cancellation of a Security in accordance with this Section 309
to the Trustee and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of
each series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months and for any period shorter
than a full month, on the basis of the actual number of days
elapsed in such period.
SECTION 311. ADDITIONAL AMOUNTS.
All payments of, or in respect of, principal of, and any
interest on, the Securities of the First Series shall be made
without withholding or deduction for, or on account of, any
present or future taxes, duties, assessments or governmental
charges of whatever nature imposed or levied by or on behalf
of Australia or any political subdivision or taxing authority
thereof or therein, unless such taxes, duties, assessments or
governmental charges are required by Australia or any
political subdivision or taxing authority thereof or therein
to be withheld or deducted. In that event, the Company will
pay such additional amounts of, or in respect of, principal
of, and any interest on, such Securities ("Additional
Amounts") as will result (after deduction of such taxes,
duties, assessments or governmental charges and any additional
taxes, duties, assessments or governmental charges payable in
respect of such payment) in the payment to the Holder of such
Security of the amounts which would have been payable in
respect of such Security had no such withholding or deduction
been required, except that no Additional Amounts shall be so
payable for or on account of:
29
(a) any tax, duty, assessment or other governmental charge
that would not have been imposed but for the fact that such
Holder
(i) was a resident, domiciliary or national of, or
engaged in business or maintained a permanent
establishment or was physically present in,
Australia or otherwise has some connection with
Australia other than the mere ownership of, or
receipt of payment under, such Security; or
(ii) presented such Security for payment in
Australia, unless such Security could not have been
presented for payment elsewhere; or
(iii) presented such Security more than 30 days
after the date on which the payment in respect of
such Security first became due and payable or
provided for, whichever is later, except to the
extent that the Holder would have been entitled to
such Additional Amounts if it had presented such
Security for payment on any day within such period
of 30 days; or
(b) any estate, inheritance, gift, sales, transfer,
personal property or similar tax, assessment or other
governmental charge;
(c) any tax, assessment or other governmental charge which
is payable otherwise than by withholding from payments of
(or in respect of) principal of, or any interest on such
Securities;
(d) any withholding or deduction from payments to an
Australian resident which would not have been required if
the Holder had provided the Company with a tax file number,
within the meaning of the Income Tax Assessment Act, 1936
(Commonwealth of Australia), prior to the payment from which
such withholding or deduction is made;
(e) any tax, assessment or other governmental charge that is
imposed or withheld by reason of the failure to comply by
the Holder or the beneficial owner of such Security with a
request of the Company addressed to such Holder
(i) to provide information concerning the
nationality, residence or identity of such Holder
or such beneficial owner, or
(ii) to make any declaration or other similar claim
or satisfy any information or reporting
requirements, which, in the case of (i) or (ii), is
required or imposed by a statute, treaty,
regulation or administrative practice of the taxing
jurisdiction as a precondition to exemption from
all or part of such tax, assessment or other
governmental charge; or
(f) any combination of items (a), (b), (c), (d) and (e); nor
shall Additional Amounts be paid with respect to any payment
of, or in respect of, the principal of, or any interest on,
any such Security to any such Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such
payment to the extent such payment would be required by the
laws of Australia or any political subdivision or taxing
authority thereof or therein to be included in the income
30
for tax purposes of a beneficiary or settlor with respect to
such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to such
Additional Amounts had it been the Holder of such Security.
Whenever there is mentioned, in any context, the payment
of the principal of, or any interest on, or in respect of,
any such Security, such mention shall be deemed to include
mention of the payment of Additional Amounts provided for
in this Indenture to the extent that, in such context,
Additional Amounts are, were or would be payable in
respect thereof pursuant to this Indenture.
As to any Additional Amounts provided for in this
Indenture, the Trustee shall be entitled to receive and
shall be fully protected in relying upon an Officer's
Certificate setting forth the amount of such Additional
Amounts, and the Trustee shall not be required to verify
the calculation of such Additional Amounts.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of such series)
in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall
be evidenced by a Board Resolution or an Officer's
Certificate. The Company shall, at least 45 days prior to
the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date and of the
principal amount of such Securities to be redeemed. In the
case of any redemption of Securities (a) prior to the
expiration of any restriction on such redemption provided
in the terms of such Securities or elsewhere in this
Indenture or (b) pursuant to an election of the Company
which is subject to a restriction or condition specified
in the terms of such Securities, the Company shall furnish
the Trustee with an Officer's Certificate evidencing
compliance with such restriction or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall
be selected by the Trustee from the Outstanding Securities
of such series not previously called for redemption, by
such method as shall be provided for any particular
series, or, in the absence of any such provision, by such
method as the Trustee shall deem fair and appropriate and
31
which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for
Securities of such series or any integral multiple
thereof) of the principal amount of Securities of such
series of a denomination larger than the minimum
authorized denomination for Securities of such series;
provided, however, that if, as indicated in an Officer's
Certificate, the Company shall have offered to purchase
all or any principal amount of the Securities then
Outstanding of any series, and less than all of such
Securities as to which such offer was made shall have been
tendered to the Company for such purchase, the Trustee, if
so directed by Company Order, shall select for redemption
all or any principal amount of such Securities which have
not been so tendered.
The Trustee shall promptly notify the Company and the
Security Registrar in writing of the Securities selected
for redemption and, in the case of any Securities selected
to be redeemed in part, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the
redemption of Securities shall relate, in the case of any
Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which
has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided
in Section 106 to the Holders of the Securities to be
redeemed not less than 30 nor more than 60 days prior to
the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series are to be
redeemed, the identification of the particular Securities to
be redeemed and the portion of the principal amount of any
Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption
Date, will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued
interest, if any, unless it shall have been specified as
contemplated by Section 301 with respect to such Securities
that such surrender shall not be required,
(f) that the redemption is for a sinking or other fund,
if such is the case, and
32
(g) such other matters as the Company shall deem desirable
or appropriate.
Unless otherwise specified with respect to any Securities in
accordance with Section 301, with respect to any notice of
redemption of Securities at the election of the Company,
unless, upon the giving of such notice, such Securities shall
be deemed to have been paid in accordance with Section 701,
such notice may state that such redemption shall be
conditional upon the receipt by the Paying Agent or Agents for
such Securities, on or prior to the date fixed for such
redemption, of money sufficient to pay the principal of and
premium, if any, and interest, if any, on such Securities and
that if such money shall not have been so received such notice
shall be of no force or effect and the Company shall not be
required to redeem such Securities. In the event that such
notice of redemption contains such a condition and such money
is not so received, the redemption shall not be made and
within a reasonable time thereafter notice shall be given, in
the manner in which the notice of redemption was given, that
such money was not so received and such redemption was not
required to be made, and the Paying Agent or Agents for the
Securities otherwise to have been redeemed shall promptly
return to the Holders thereof any of such Securities which had
been surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the
election of the Company, and any notice of non-satisfaction of
a condition for redemption as aforesaid, shall be given by the
Company or, at the Company's request, by the Trustee in the
name and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given by the Trustee in the
name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been
satisfied, the Securities or portions thereof so to be
redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after
such date (unless, in the case of an unconditional notice of
redemption, the Company shall default in the payment of the
Redemption Price and accrued interest, if any) such Securities
or portions thereof, if interest-bearing, shall cease to bear
interest. Upon surrender of any such Security for redemption
in accordance with such notice, such Security or portion
thereof shall be paid by the Company at the Redemption Price,
together with accrued interest, if any, to the Redemption
Date; provided, however, that no such surrender shall be a
condition to such payment if so specified as contemplated by
Section 301 with respect to such Security; and provided,
further, that except as otherwise specified as contemplated by
Section 301 with respect to such Security, any installment of
interest on any Security the Stated Maturity of which
installment is on or prior to the Redemption Date shall be
payable to the Holder of such Security, or one or more
Predecessor Securities, registered as such at the close of
business on the related Regular Record Date according to the
terms of such Security and subject to the provisions of
Section 307.
SECTION 406. SECURITIES REDEEMED IN PART.
33
Upon the surrender of any Security which is to be redeemed
only in part at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge, a new
Security or Securities of the same series, of any authorized
denomination requested by such Holder and of like tenor and in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Securities of any
series, except as otherwise specified as contemplated by
Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as
a "mandatory sinking fund payment", and any payment in excess
of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of
any series, the cash amount of any mandatory sinking fund
payment may be subject to reduction as provided in Section
502. Each sinking fund payment shall be applied to the
redemption of Securities of the series in respect of which it
was made as provided for by the terms of such Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption)
of a series in respect of which a mandatory sinking fund
payment is to be made and (b) may apply as a credit Securities
of such series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities or
Outstanding Securities purchased by the Company, in each case
in satisfaction of all or any part of such mandatory sinking
fund payment with respect to the Securities of such series;
provided, however, that no Securities shall be applied in
satisfaction of a mandatory sinking fund payment if such
Securities shall have been previously so applied. Securities
so applied shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking
fund and the amount of such mandatory sinking fund payment
shall be reduced accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
34
Not less than 45 days prior to each sinking fund payment date
for the Securities of any series, the Company shall deliver to
the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking
fund payment for such series;
(b) the amount, if any, of the optional sinking fund payment
to be made together with such mandatory sinking fund
payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by the payment of cash; and
(e) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by delivering and crediting
Securities of such series pursuant to Section 502 and
stating the basis for such credit and that such Securities
have not previously been so credited, and the Company shall
also deliver to the Trustee any Securities to be so
delivered. If the Company shall not deliver such Officer's
Certificate, the next succeeding sinking fund payment for
such series shall be made entirely in cash in the amount of
the mandatory sinking fund payment. Not less than 30 days
before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 403 and
cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner
provided in Section 404. Such notice having been duly given,
the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 405 and 406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if any,
and interest, if any, on the Securities of each series in
accordance with the terms of such Securities and this
Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for the
Securities of each series an office or agency where payment of
such Securities shall be made, where the registration of
transfer or exchange of such Securities may be effected and
where notices and demands to or upon the Company in respect of
such Securities and this Indenture may be served. The Company
shall give prompt written notice to the Trustee of the
location, and any change in the location, of each such office
35
or agency and prompt notice to the Holders of any such change
in the manner specified in Section 106. If at any time the
Company shall fail to maintain any such required office or
agency in respect of Securities of any series, or shall fail
to furnish the Trustee with the address thereof, payment of
such Securities shall be made, registration of transfer or
exchange thereof may be effected and notices and demands in
respect thereof may be served at the Corporate Trust Office of
the Trustee, and the Company hereby appoints the Trustee as
its agent for all such purposes in any such event.
The Company may also from time to time designate one or more
other offices or agencies with respect to the Securities of
one or more series, for any or all of the foregoing purposes
and may from time to time rescind such designations; provided,
however, that, unless otherwise specified as contemplated by
Section 301 with respect to the Securities of such series, no
such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency for
such purposes in each Place of Payment for such Securities in
accordance with the requirements set forth above. The Company
shall give prompt written notice to the Trustee, and prompt
notice to the Holders in the manner specified in Section 106,
of any such designation or rescission and of any change in the
location of any such other office or agency.
Anything herein to the contrary notwithstanding, any office or
agency required by this Section may be maintained at an office
of the Company, in which event the Company shall perform all
functions to be performed at such office or agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent
with respect to the Securities of any series, it shall, on or
before each due date of the principal of and premium, if any,
and interest, if any, on any of such Securities, segregate and
hold in trust for the benefit of the Persons entitled thereto
a sum sufficient to pay the principal and premium or interest
so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided. The Company shall
promptly notify the Trustee of any failure by the Company (or
any other obligor on such Securities) to make any payment of
principal of or premium, if any, or interest, if any, on such
Securities.
Whenever the Company shall have one or more Paying Agents for
the Securities of any series, it shall, on or before each due
date of the principal of and premium, if any, and interest, if
any, on such Securities, deposit with such Paying Agents sums
sufficient (without duplication) to pay the principal and
premium or interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company shall promptly notify the Trustee
of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities
of any series, other than the Company or the Trustee, to
execute and deliver to the Trustee an instrument in which such
36
Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on
such Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the Company
(or any other obligor upon such Securities) to make any
payment of principal of or premium, if any, or interest, if
any, on such Securities; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such Paying Agent
and furnish to the Trustee such information as it possesses
regarding the names and addresses of the Persons entitled to
such sums.
The Company may at any time pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust
by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent and, if so
stated in a Company Order delivered to the Trustee, in
accordance with the provisions of Article Seven; and, upon
such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the
principal of and premium, if any, or interest, if any, on any
Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or,
if then held by the Company, shall be discharged from such
trust; and, upon such payment or discharge, the Holder of such
Security shall, as an unsecured general creditor and not as a
Holder of an Outstanding Security, look only to the Company
for payment of the amount so due and payable and remaining
unpaid, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being
required to make any such payment to the Company, may at the
expense of the Company cause to be mailed, on one occasion
only, notice to such Holder that such money remains unclaimed
and that, after a date specified therein, which shall not be
less than 30 days from the date of such mailing, any unclaimed
balance of such money then remaining will be paid to the
Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article Eleven, the
Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate
existence.
37
SECTION 605. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) all its
properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working
order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be
made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as, in the judgment
of the Company, may be necessary so that the business carried
on in connection therewith may be properly conducted;
provided, however, that nothing in this Section shall prevent
the Company from discontinuing, or causing the discontinuance
of, the operation and maintenance of any of its properties if
such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than November 1 in each year, commencing November 1,
1997, the Company shall deliver to the Trustee an Officer's
Certificate which need not comply with Section 102, executed
by the principal executive officer, the principal financial
officer or the principal accounting officer of the Company, as
to such officer's knowledge of the Company's compliance with
all conditions and covenants under this Indenture, such
compliance to be determined without regard to any period of
grace or requirement of notice under this Indenture.
SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in
(a) any covenant or restriction specified with respect to
the Securities of any one or more series, as contemplated by
Section 301, if before the time for such compliance the
Holders of at least a majority in aggregate principal amount
of the Outstanding Securities of all series with respect to
which compliance with such covenant or restriction is to be
omitted, considered as one class, shall, by Act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition; provided, however, that no such waiver shall be
effective as to any of the matters contemplated in clause
(a), (b) or (c) in Section 1202 without the consent of the
Holders specified in such clause; and
(b) Section 604, 605 or Article Eleven if before the time
for such compliance the Holders of at least a majority in
principal amount of Securities Outstanding under this
Indenture shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance
with such term, provision or condition;
but, in the case of (a) or (b), no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of
38
the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
SECTION 608. RESTRICTIONS ON SECURED DEBT.
So long as the Securities of the First Series remain
Outstanding, neither the Company nor any Restricted Subsidiary
may create, assume or guarantee any Debt secured by a Mortgage
on any Principal Property owned by the Company or a Subsidiary
or on any shares of Capital Stock or Debt issued by any
Restricted Subsidiary and held by the Company or any
Subsidiary, unless the Company also secures, or causes such
Restricted Subsidiary to secure, the Securities (and, if the
Company so elects, any other Debt of the Company or such
Restricted Subsidiary which is not subordinate to the
Securities) equally and ratably with (or prior to) such
secured Debt, so long as such secured Debt shall be so
secured, unless after giving effect thereto the aggregate
amount of all such secured Debt, together with all
Attributable Debt of the Company and its Restricted
Subsidiaries in respect of Sale and Lease-Back Transactions
(other than those described in clause (a) of Section 609)
would not exceed 10% of Consolidated Net Tangible Assets.
This restriction will not apply to, and there will be excluded
in computing secured Debt for the purpose of such restriction,
Debt secured by
(a) Mortgages existing on the date of this Indenture;
(b) Mortgages on any property, shares of Capital Stock or
Debt existing at the time of acquisition thereof or
Mortgages on property acquired after the date of this
Indenture to secure the payment of all or any part of the
purchase price or construction cost of such property,
including any improvements to such property, or to secure
any Debt incurred no later than one year after, the
acquisition or completion of construction of property for
the purpose of financing all or any part of the purchase
price or construction cost thereof, provided that such
Mortgage only extend to such property (together with
improvements thereto and renewals and replacements thereof),
shares of Capital Stock or Debt;
(c) Mortgages on property of, or on any shares of Capital
Stock or Debt of, any corporation existing at the time such
corporation becomes a Restricted Subsidiary, provided that
such Mortgage only extend to such property (together with
improvements thereto and renewals and replacements thereof),
shares of Capital Stock or Debt;
(d) Mortgages in favor of the Company or a Restricted
Subsidiary, other than a Mortgage from the Company in
favor of a Restricted Subsidiary;
(e) Mortgages under workers' compensation laws, unemployment
insurance laws or similar legislation; Mortgages incurred in
the ordinary course of business to secure surety or appeal
bonds to which the Company or any Restricted Subsidiary is a
party or in lieu of such bonds; Mortgages imposed by law in
favor of governmental entities for other than taxes,
assessments or other applicable governmental charges or
levies;
39
(f) any Mortgage securing taxes or assessments or franchise
fees or license fees or other applicable governmental
charges or levies, including sales taxes, value added taxes
and customs and excise taxes and duties that either
(i) are not yet delinquent by more than 30 days,
or
(ii) are being contested in good faith by
appropriate proceedings and as to which appropriate
reserves or provisions, if any, as are required in
accordance with A-GAAP shall have been made;
(g) any judgment or other similar Mortgage arising in
connection with court proceedings, provided that either
(i) the execution or enforcement of each such
Mortgage is effectively stayed within 30 days after
entry of such judgment (or such judgment has been
discharged within such 30 day period) and the
claims secured thereby are being contested in good
faith by appropriate proceedings timely commenced
and diligently prosecuted;
(ii) the payment of which judgment or other similar
Mortgage is covered in full by insurance and the
insurance company has not denied or contested
coverage thereof; or
(iii) so long as each Mortgage is adequately
bonded, any appropriate legal proceedings that may
have been duly initiated for the review of such
judgment, decree or order shall not have been fully
terminated or the period within which such
proceedings may be initiated shall not have
expired;
(h) Mortgages on or over property employed in any Joint
Venture, of which the Company and its Subsidiaries own less
than 50% of the ownership interest, to secure Debt of such
Joint Venture provided that such Debt is non-recourse to the
Company or any of its Subsidiaries;
(i) Mortgages on or over all or any part of the ownership
interest of the Company or any of its Subsidiaries in any
Joint Venture, to secure the due payment of amounts payable
under or in respect of such Joint Venture to the Joint
Venture or any of the Joint Venturers; and
(j) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in
part, of any Mortgage referred to in the foregoing clauses
(a) through (i), inclusive, provided that such extension,
renewal or replacement Mortgage is limited to all or a part
of the same property, shares of Capital Stock or Debt that
secured the Mortgage extended, renewed or replaced (plus
improvements on the property) and the Debt so secured, at
the time of the extension, renewal or replacement, is not
increased.
40
"JOINT VENTURE" means any partnership, joint venture, joint
tenancy or other co-ownership arrangement with respect to
property where the Company or any of its Subsidiaries is an
owner of an undivided interest in such property.
SECTION 609. LIMITATIONS ON SALE LEASE-BACK TRANSACTIONS.
So long as the Securities of the First Series remain
Outstanding, neither the Company nor any Restricted
Subsidiary will enter into any Sale and Lease-Back
Transaction with respect to any assets or property unless
(a) such transaction is between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries; or
(b) the Company would be entitled to incur indebtedness
secured by a mortgage on the assets or property involved in
such transaction at least equal in amount to the
Attributable Debt with respect to such Sale and Lease-Back
Transaction, without equally and ratably securing the
Securities, pursuant to the limitation on secured Debt
contained in Section 608.
"ATTRIBUTABLE DEBT" means, with regard to a Sale and
Lease-Back Transaction with respect to any assets or
property of any character at the time of determination,
the greater of: (a) the fair market value of such assets
or property (as determined in good faith by the Board of
Directors); or (b) the present value of the total net
amount of rent required to be paid under such lease during
the remaining term thereof (including any period for which
such lease has been extended), discounted at the rate of
interest set forth or implicit in the terms of such lease
(or, if not practicable to determine such rate, the
interest rate per annum borne by the Securities)
compounded semi-annually. In the case of any lease which
is terminable by the lessee upon the payment of a penalty,
such net amount shall be the lesser of the net amount
determined assuming termination upon the first date such
lease may be terminated (in which case the net amount
shall also include the amount of the penalty, but no rent
shall be considered as required to be paid under such
lease subsequent to the first date upon which it may be so
terminated) or the net amount determined assuming no such
termination.
"SALE AND LEASE-BACK TRANSACTION" means any arrangement
with any lender or investor providing for the leasing by
the Company or any Restricted Subsidiary of any Principal
Property which has been or is to be sold or transferred by
the Company or such Restricted Subsidiary to such lender
or investor or to any person to whom funds have been or
are to be advanced by such lender or investor on the
security of such Principal Property.
SECTION 610. DIVIDEND RESTRICTION.
So long as any Securities of the First Series remain
Outstanding, the Company covenants that it shall not
declare and pay any dividends in cash or property on any
shares of its Capital Stock or make any other
distributions in cash or property to its capital
shareholders or acquire any shares of its Capital Stock if
41
(a) the aggregate amount of dividends and distributions
paid to capital shareholders, from January 1, 1996 to the
date of such declaration of dividend or distribution,
including the amount of such dividend or distribution,
would exceed (b) the sum of the Company's accumulated net
income or accumulated net cash flows after capital
expenditures, whichever is greater, from January 1, 1996
to the date of such declaration of dividend or
distribution and the amount of aggregate consideration
received by the Company for any of its Capital Stock
issued after the date of this Indenture and before the
date of such declaration of dividend or distribution;
provided that this restriction shall not apply to the
creation of any subordinated shareholder loans in exchange
for equity (but shall apply to the repayment of such
loans).
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. DEFEASANCE.
Any Security or Securities, or any portion of the
principal amount thereof, shall be deemed to have been
paid for all purposes of this Indenture, and the entire
indebtedness of the Company in respect thereof shall be
deemed to have been satisfied and discharged, if there
shall have been irrevocably deposited with the Trustee or
any Paying Agent (other than the Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of
such Securities or portions thereof, Government Obligations,
which shall not contain provisions permitting the redemption
or other prepayment thereof at the option of the issuer
thereof, the principal of and the interest on which when
due, without any regard to reinvestment thereof, will
provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying Agent,
shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if
any, due and to become due on such Securities or portions thereof on or
prior to Maturity; provided, however, that in the case of the provision
for payment or redemption of less than all the Securities of any series,
such Securities or portions thereof shall have been selected by the
Trustee as provided herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have been given or
irrevocable authority shall have been given by the Company to the Trustee
to give such notice, under arrangements satisfactory to the Trustee; and
provided, further, that the Company shall have delivered to the Trustee
and such Paying Agent:
(x) if such deposit shall have been made prior to
the Maturity of such Securities, a Company Order
stating that the money and Government Obligations
42
deposited in accordance with this Section shall be
held in trust, as provided in Section 703; and
(y) if Government Obligations shall have been
deposited, an opinion of an independent public
accountant of nationally recognized standing,
selected by the Company, to the effect that the
requirements set forth in clause (b) above have
been satisfied; and
(z) if such deposit shall have been made prior to
the Maturity of such Securities, an Opinion of
Counsel to the effect that the Holders will not
recognize income, gain or loss for Federal income
tax purposes as a result of the satisfaction and
discharge of the Company's indebtedness in respect
of such Securities, and such Holders will be
subject to Federal income taxation on the same
amounts and in the same manner and at the same
times as if such satisfaction and discharge had not
occurred. Such Opinion of Counsel shall be based
upon a change in law occurring after the date
hereof, or a regulation, ruling or other official
statement of the Internal Revenue Service of the
United States issued after the date hereof.
Upon the deposit of money or Government Obligations, or both,
in accordance with this Section, together with the documents
required by clauses (x), (y) and (z) above, the Trustee shall,
upon receipt of a Company Request, acknowledge in writing that
the Security or Securities or portions thereof with respect to
which such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire
indebtedness of the Company in respect thereof has been
satisfied and discharged as contemplated in this Section. In
the event that all of the conditions set forth in the
preceding paragraph shall have been satisfied in respect of
any Securities or portions thereof except that, for any
reason, the Opinion of Counsel specified in clause (z) shall
not have been delivered, such Securities or portions thereof
shall nevertheless be deemed to have been paid for all
purposes of this Indenture, and the Holders of such Securities
or portions thereof shall nevertheless be no longer entitled
to the benefits of this Indenture or of any of the covenants
of the Company under Article Six (except the covenants
contained in Sections 602 and 603) or any other covenants made
in respect of such Securities or portions thereof as
contemplated by Section 301, but the indebtedness of the
Company in respect of such Securities or portions thereof
shall not be deemed to have been satisfied and discharged
prior to Maturity for any other purpose, and the Holders of
such Securities or portions thereof shall continue to be
entitled to look to the Company for payment of the
indebtedness represented thereby; and, upon Company Request,
the Trustee shall acknowledge in writing that such Securities
or portions thereof are deemed to have been paid for all
purposes of this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series is to be provided for in the manner
and with the effect provided in this Section, the Security
Registrar shall select such Securities, or portions of
principal amount thereof, in the manner specified by Section
403 for selection for redemption of less than all the
Securities of a series.
43
In the event that Securities which shall be deemed to have
been paid for purposes of this Indenture, and, if such is the
case, in respect of which the Company's indebtedness shall
have been satisfied and discharged, all as provided in this
Section do not mature and are not to be redeemed within the 60
day period commencing with the date of the deposit of moneys
or Government Obligations, as aforesaid, the Company shall, as
promptly as practicable, give a notice, in the same manner as
a notice of redemption with respect to such Securities, to the
Holders of such Securities to the effect that such deposit has
been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have
been paid for purposes of this Indenture, as aforesaid, the
obligations of the Company and the Trustee in respect of such
Securities under Sections 304, 305, 306, 404, 503 (as to
notice of redemption), 602, 603, 907, 909, 910 and 915 and
this Article Seven shall survive.
The Company shall pay, and shall indemnify the Trustee or any
Paying Agent with which Government Obligations shall have been
deposited as provided in this Section against, any tax, fee or
other charge imposed on or assessed against such Government
Obligations or the principal or interest received in respect
of such Government Obligations, including, but not limited to,
any such tax payable by any entity deemed, for tax purposes,
to have been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at
any time after a Security would be deemed to have been paid
for purposes of this Indenture, and, if such is the case, the
Company's indebtedness in respect thereof would be deemed to
have been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the
Trustee or any Paying Agent, as the case may be, shall be
required to return the money or Government Obligations, or
combination thereof, deposited with it as aforesaid to the
Company or its representative under any applicable Federal or
State bankruptcy, insolvency or other similar law, such
Security shall thereupon be deemed retroactively not to have
been paid and any satisfaction and discharge of the Company's
indebtedness in respect thereof shall retroactively be deemed
not to have been effected, and such Security shall be deemed
to remain Outstanding and (b) any satisfaction and discharge
of the Company's indebtedness in respect of any Security shall
be subject to the provisions of the last paragraph of Section
603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of
further effect (except as hereinafter expressly provided), and
the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(a) no Securities remain Outstanding hereunder; and
44
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of
Section 701, any Security, previously deemed to have been paid for
purposes of this Indenture, shall be deemed retroactively not to have been
so paid, this Indenture shall thereupon be deemed retroactively not to
have been satisfied and discharged, as aforesaid, and to remain in full
force and effect, and the Company shall execute and deliver such
instruments as the Trustee shall reasonably request to evidence and
acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the
Trustee under Sections 304, 305, 306, 404, 503 (as to notice
of redemption), 602, 603, 907, 909, 910 and 915 and this
Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as provided
in this Section, the Trustee shall assign, transfer and turn
over to the Company, subject to the lien provided by Section
907, any and all money, securities and other property then
held by the Trustee for the benefit of the Holders of the
Securities other than money and Government Obligations held by
the Trustee pursuant to Section 703.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Government Obligations nor the money deposited
pursuant to Section 701, nor the principal or interest
payments on any such Government Obligations, shall be
withdrawn or used for any purpose other than, and shall be
held in trust for, the payment of the principal of and
premium, if any, and interest, if any, on the Securities or
portions of principal amount thereof in respect of which such
deposit was made, all subject, however, to the provisions of
Section 603; provided, however, that, so long as there shall
not have occurred and be continuing an Event of Default any
cash received from such principal or interest payments on such
Government Obligations, if not then needed for such purpose,
shall, to the extent practicable, be invested in Government
Obligations of the type described in clause (b) in the first
paragraph of Section 701 maturing at such times and in such
amounts as shall be sufficient, together with any other moneys
and the principal of and interest on any other Governmental
Obligations then held by the Trustee, to pay when due the
principal of and premium, if any, and interest, if any, due
and to become due on such Securities or portions thereof on
and prior to the Maturity thereof, and interest earned from
such reinvestment shall be paid over to the Company as
received, free and clear of any trust, lien or pledge under
this Indenture except the lien provided by Section 907; and
provided, further, that, so long as there shall not have
occurred and be continuing an Event of Default, any moneys
held in accordance with this Section on the Maturity of all
such Securities in excess of the amount required to pay the
principal of and premium, if any, and interest, if any, then
due on such Securities shall be paid over to the Company free
and clear of any trust, lien or pledge under this Indenture
except the lien provided by Section 907; and provided,
further, that if an Event of Default shall have occurred and
be continuing, moneys to be paid over to the Company pursuant
45
to this Section shall be held until such Event of Default
shall have been waived or cured.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following
events:
(a) failure to pay interest, if any, on any Security of
such series within 30 days after the same becomes due and
payable; or
(b) failure to pay the principal of or premium, if any, on
any Security of such series when the same becomes due and
payable whether at Maturity, upon redemption or otherwise;
or
(c) failure to perform or breach of any covenant or warranty
of the Company in this Indenture (other than a covenant or
warranty a default in the performance of which or breach of
which is elsewhere in this Section specifically dealt with
or which has expressly been included in this Indenture
solely for the benefit of one or more series of Securities
other than such series) for a period of 60 days after there
has been given, by registered or certified mail, to the
Company by the Trustee, or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the
Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of
Default" hereunder, unless the Trustee, or the Trustee and
the Holders of a principal amount of Securities of such
series not less than the principal amount of Securities the
Holders of which gave such notice, as the case may be, shall
agree in writing to an extension of such period prior to its
expiration; or
(d) an order is made by a court of competent jurisdiction
that the Company be wound up or dissolved or an order is
made appointing a liquidator or provisional liquidator in
respect of the Company or a liquidator or provisional
liquidator is appointed in respect of the Company (whether
or not under an order) and such order is not vacated or such
liquidator is not removed within 90 days;
(e) the Company enters into, or resolves to enter into, a
scheme of arrangement, deed of company arrangement or
composition with, or assignment for the benefit of, all or
any class of its creditors or it proposes a reorganization,
moratorium or other administration, in each case under any
applicable Australian, Federal or State bankruptcy,
insolvency or other similar law, involving any of them or
the Company resolves to wind itself up or otherwise dissolve
itself or gives notice of intention to do so.
46
(f) the Company is or states that it is insolvent or, as a
result of the operation of section 459F(1) of the Australian
Corporations Law, is taken to have failed to comply with a
statutory demand; or
(g) the Company or the directors or shareholders of the
Company take any step to obtain protection or the Company is
granted protection from the creditors of the Company
(including, without limitation, summoning a creditors'
meeting to consider a proposal for corporate voluntary
arrangement) under any applicable legislation or an
administrator is appointed to the Company and such step is
not reversed or such administrator is not removed within 90
days;
(h) a controller (as defined in the Australian Corporations
Law) is appointed in respect of any substantial part of the
property of the Company and such controller is not removed
within 90 days;
(i) anything analogous or having a substantially similar
effect to any of the events specified in paragraphs (d),
(e), (f), (g), and (h) above happens under the law of any
applicable jurisdiction; or
(j) any other Event of Default specified with respect to
Securities of such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default other than those specified by Sections
801(d)-(i) shall have occurred and be continuing, either the
Trustee or the Holders of not less than 25% in principal
amount of the Securities of such series may then declare the
principal of all Securities of such series and interest
accrued thereon to be due and payable immediately. If an Event
of Default specified in Section 801(d)-(i) shall have occurred
and be continuing, the principal of all Securities then
Outstanding and interest accrued thereon shall become due and
payable immediately without any declaration or other act by
the Trustee or any Holder.
At any time after such a declaration of acceleration with
respect to Securities of any series shall have been made and
before a judgment or decree for payment of the money due shall
have been obtained by the Trustee as hereinafter in this
Article provided, the Event or Events of Default giving rise
to such declaration of acceleration may be waived by the
Holders of a majority in aggregate principal amount of the
Securities of such series then Outstanding, and such
declaration and its consequences shall, without further act,
be deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the
Trustee a sum sufficient to pay
(i) all overdue interest on all Securities of such
series;
(ii) the principal of and premium, if any, on any
Securities of such series which have become due
otherwise than by such declaration of acceleration
47
and interest thereon at the rate or rates
prescribed therefor in such Securities;
(iii) to the extent that payment of such interest
is lawful, interest upon overdue interest, if any,
at the rate or rates prescribed therefor in such
Securities;
(iv) all amounts due to the Trustee under Section
907;
and
(b) any other Event or Events of Default with respect to
Securities of such series, other than the nonpayment of the
principal of Securities of such series which shall have
become due solely by such declaration of acceleration, shall
have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair
any right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
If an Event of Default described in clause (a) or (b) of
Section 801 shall have occurred and be continuing, the Company
shall, upon demand of the Trustee, pay to it, for the benefit
of the Holders of the Securities of the series with respect to
which such Event of Default shall have occurred, the whole
amount then due and payable on such Securities for principal
and premium, if any, and interest, if any, and, to the extent
permitted by law, interest on premium, if any, and on any
overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover
any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the
same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of
the Company or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee may
in its discretion proceed to protect and enforce its rights
and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM.
48
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative
to the Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal
of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim
for amounts due to the Trustee under Section 907) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amounts due it under
Section 907.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the
rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such
proceeding.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery
of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders in respect of which such judgment has
been recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such
money on account of principal or premium, if any, or interest,
if any, upon presentation of the Securities in respect of
which or for the benefit of which such money shall have been
collected and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
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FIRST: To the payment of all amounts due the Trustee under
Section 907;
SECOND: To the payment of the amounts then due and unpaid
upon the Securities for principal of and premium, if any,
and interest, if any, in respect of which or for the benefit
of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts
due and payable on such Securities for principal, premium,
if any, and interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company or to whomsoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may
direct.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder shall have previously given written notice
to the Trustee of a continuing Event of Default with respect
to the Securities of such series;
(b) the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of such
series in respect of which an Event of Default shall have
occurred and be continuing shall have made written request
to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request
shall have been given to the Trustee during such 60-day
period by the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series in
respect of which an Event of Default shall have occurred and
be continuing, considered as one class;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
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Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of and
premium, if any, and (subject to Section 307) interest, if
any, on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such
proceeding shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee
or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, and Trustee and
such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and
remedies of the Trustee and such Holder shall continue as
though no such proceeding had been instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to
the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be continuing
in respect of a series of Securities, the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of such series shall have the right to direct the
time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the Securities
of such series; provided, however, that if an Event of Default
shall have occurred and be continuing with respect to more
than one series of Securities, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of
all such series, considered as one class, shall have the right
51
to make such direction, and not the Holders of the Securities
of any one of such series; and provided, further, that such
direction shall not be in conflict with any rule of law or
with this Indenture. The Trustee may take any other action,
deemed proper by the Trustee, which is not inconsistent with
such direction. Before proceeding to exercise any right or
power hereunder at the direction of such Holders, the Trustee
shall be entitled to receive from such Holders reasonable
security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with
any such direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series
waive any past default hereunder with respect to such series
and its consequences, except a default
(a) in the payment of the principal of or premium, if any,
or interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under
Section 1202 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to exist, and
any and all Events of Default arising therefrom shall be
deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by his
acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply
to any suit instituted by the Company, to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in
aggregate principal amount of the Outstanding Securities of
all series in respect of which such suit may be brought,
considered as one class, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of
or premium, if any, or interest, if any, on any Security on or
after the Stated Maturity or Maturities expressed in such
52
Security (or, in the case of redemption, on or after the
Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been
enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Upon receipt of a notice from the Company that this
Indenture is subject to the Trust Indenture Act, the Trustee
shall have and be subject to all the duties and
responsibilities specified with respect to an indenture
trustee in the Trust Indenture Act. Prior to receipt of any
such notice, the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture; provided, however, that if an Event of Default
shall have occurred and be continuing, with respect to one
or more series of Securities, the Trustee shall comply with
Section 315(c) of the Trust Indenture Act, unless otherwise
directed by the Holders of such Securities, in accordance
with Section 812. No implied covenants or obligations shall
be read into this Indenture against the Trustee.
(b) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(c) Notwithstanding anything contained in this Indenture to
the contrary and whether or not this Indenture is qualified
under the Trust Indenture Act, the duties and
responsibilities of the Trustee under this Indenture shall
be subject to the protections, exculpations and limitations
on liability afforded to a trustee under the provisions of
Section 315(d) of the Trust Indenture Act.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
53
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder with
respect to the Securities of any series to the Holders of
Securities of such series in the manner and to the extent
required to do so by the Trust Indenture Act, unless such
default shall have been cured or waived; provided, however,
that in the case of any default of the character specified in
Section 801(c), no such notice to Holders shall be given until
at least 45 days after the occurrence thereof. For the purpose
of this Section, the term "default" means any event which is,
or after notice or lapse of time, or both, would become, an
Event of Default.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the provisions
of the Trust Indenture Act, if this Indenture becomes subject
to the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or
Company Order, or as otherwise expressly provided herein,
and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(e) 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 Holder pursuant to this
Indenture, unless such Holder shall have offered to the
Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further
54
inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall (subject to
applicable legal requirements) be entitled to examine,
during normal business hours, the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Trustee shall not
be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be charged with knowledge of any
default or Event of Default, as the case may be, with
respect to the Securities of any series for which it is
acting as Trustee unless either (i) a Responsible Officer of
the Trustee shall have actual knowledge of the default or
Event of Default, as the case may be, or (ii) written notice
of such default or Event of Default, as the case may be,
shall have been given to the Trustee by the Company, any
other obligor on such Securities or by any Holder of such
Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities (except
the Trustee's certificates of authentication) shall be taken
as the statements of the Company, and neither the Trustee nor
any Authenticating Agent assumes responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the
Securities. Neither the Trustee nor any Authenticating Agent
shall be accountable for the use or application by the Company
of Securities or the proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become
the owner or pledgee of Securities and, subject to Sections
908 and 913, may otherwise deal with the Company with the same
rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by
law. The Trustee shall be under no liability for interest on
any money received by it hereunder except as expressly
provided herein or otherwise agreed with, and for the sole
benefit of, the Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
55
(a) pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances reasonably incurred or made by
the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
except to the extent that any such expense, disbursement or
advance may be attributable to the Trustee's negligence,
wilful misconduct or bad faith; and
(c) indemnify the Trustee for, and hold it harmless from and
against, any loss, liability or expense reasonably incurred
by it arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or the
performance of its duties hereunder, including the
reasonable costs and expenses of defending itself against
any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except
to the extent any such loss, liability or expense may be
attributable to its negligence, wilful misconduct, bad faith
or breach of its obligations under this Indenture.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or
collected by the Trustee as such other than property and funds
held in trust under Section 703 (except as otherwise provided
in Section 703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee
hereunder shall not affect the rights of any other Trustee
hereunder.
In addition to the rights provided to the Trustee pursuant to
the provisions of the immediately preceding paragraph of this
Section 907, when the Trustee incurs expenses or renders
services in connection with an Event of Default specified in
Section 801(d) or Section 801(e), the expenses (including the
reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute
expenses of administration under any applicable Australian,
Federal or State bankruptcy, insolvency or other similar law.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting interest
within the meaning of the Trust Indenture Act, it shall either
eliminate such conflicting interest or resign to the extent,
in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust
Indenture Act and to the extent permitted thereby, the
Trustee, in its capacity as trustee in respect of the
Securities of any series, shall not be deemed to have a
conflicting interest arising from its capacity as trustee in
respect of the Securities of any other series.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
56
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the
laws of the United States, any State or Territory thereof or
the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authority, or
(b) if and to the extent permitted by the Commission by
rule, regulation or order upon application, a corporation or
other Person organized and doing business under the laws of
a foreign government, authorized under such laws to exercise
corporate trust powers, having a combined capital and
surplus of at least $50,000,000 or the Dollar equivalent of
the applicable foreign currency and subject to supervision
or examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to
supervision or examination applicable to United States
institutional trustees,
and, in either case, qualified and eligible under this Article and the
Trust Indenture Act. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of such supervising
or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment
by the successor Trustee in accordance with the applicable
requirements of Section 911.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 911 shall not have
been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a
majority in principal amount of the Outstanding Securities
of such series delivered to the Trustee and to the Company.
(d) If at any time:
(i)the Trustee shall fail to comply with Section 908 after
written request therefor by the Company or by any Holder
who has been a bona fide Holder for at least six months, or
57
(ii) the Trustee shall cease to be eligible under Section 909
and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove
the Trustee with respect to all Securities or (y) subject to Section 814,
any Holder who has been a bona fide Holder for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause (other than as contemplated
in clause (y) in subsection (d) of this Section), with
respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with
the applicable requirements of Section 911. If, within one
year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect
to the Securities of any series shall be appointed by Act of
the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements
of Section 911, become the successor Trustee with respect to
the Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on
behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after notice or lapse
of time, or both, would become, an Event of Default shall
have occurred and be continuing, and except with respect to
a Trustee appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities pursuant to
subsection (e) of this Section, if the Company shall have
delivered to the Trustee (i) a Board Resolution appointing a
successor Trustee, effective as of a date specified therein,
and (ii) an instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee in
accordance with Section 911, the Trustee shall be deemed to
have resigned as contemplated in subsection (b) of this
Section, the successor Trustee shall be deemed to have been
appointed by the Company pursuant to subsection (e) of this
58
Section and such appointment shall be deemed to have been
accepted as contemplated in Section 911, all as of such
date, and all other provisions of this Section and Section
911 shall be applicable to such resignation, appointment and
acceptance except to the extent inconsistent with this
subsection (f).
(g) The Company (or, should the Company fail to so act as
promptly as practicable, the successor Trustee at the
expense of the Company) shall give notice of each
resignation and each removal of the Trustee with respect to
the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any
series by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of
Securities of such series as their names and addresses
appear in the Security Register. Each notice shall include
the name of the successor Trustee with respect to the
Securities of such series and the address of its corporate
trust office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of all series, every
such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment
of all sums owed to it, execute and deliver an instrument
transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but
not all) series, the Company, the retiring Trustee and each
successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall
accept such appointment and which (i) shall contain such
provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates, (ii) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee and
(iii) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee
shall be trustee of a trust or trusts hereunder separate and
59
apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the extent
provided therein and each such successor Trustee, without
any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee, upon payment of
all sums owed to it, shall duly assign, transfer and deliver
to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any instruments which fully vest in and
confirm to such successor Trustee all such rights, powers
and trusts referred to in subsection (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall
be qualified and eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company or
any other obligor upon the Securities (other than by reason of
a relationship described in Section 311(b) of the Trust
Indenture Act), the Trustee shall be subject to any and all
provisions of the Trust Indenture Act regarding the collection
of claims against the Company or such other obligor if the
Trust Indenture Act shall at that time be applicable. For
purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities
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in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, xxxx
of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or
a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor
relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, xxxx of
exchange, acceptance or obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Company and
the Trustee shall have power to appoint, and, upon the written
request of the Trustee or of the Holders of at least 33% in
principal amount of the Securities then Outstanding, the
Company shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved
by the Trustee either to act as co-trustee, jointly with the
Trustee, or to act as separate trustee, in either case with
such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons, in the
capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of
this Section. If the Company does not join in such appointment
within 15 days after the receipt by it of a request so to do,
or if an Event of Default shall have occurred and be
continuing, the Trustee alone shall have power to make such
appointment.
Should any written instrument or instruments from the Company
be required by any co-trustee or separate trustee so appointed
to more fully confirm to such co-trustee or separate trustee
such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and
delivered by the Company.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed
subject to the following conditions:
(a) the Securities shall be authenticated and delivered, and
all rights, powers, duties and obligations hereunder in
respect of the custody of securities, cash and other
personal property held by, or required to be deposited or
pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed either by the
Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument
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appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which
any particular act is to be performed, the Trustee shall be
incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or separate
trustee;
(c) the Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Company, may
accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, if an
Event of Default shall have occurred and be continuing, the
Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Company. Upon the written request of the
Trustee, the Company shall join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner
provided in this Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be
deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Securities of one or more series, which shall
be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issuance and
upon exchange, registration of transfer or partial redemption
thereof or pursuant to Sections 304, 306 or 1206, and
Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on
behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the
Trustee by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws of the
United States, any State or Territory thereof or the District
of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions
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of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section,
the Trustee may appoint a successor Authenticating Agent which
shall be acceptable to the Company. Any successor
Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under
the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under
this Section, and the Trustee shall be entitled to be
reimbursed for such payments, in accordance with, and subject
to the provisions of Section 907.
The provisions of Sections 308, 904 and 905 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Securities of one or
more series shall be made pursuant to this Section, the
Securities of such series may have endorsed thereon, in lieu
of the Trustee's certificate of authentication, an alternate
certificate of authentication substantially in the following
form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
-----------------------------
As Trustee
By
---------------------------
As Authenticating
Agent
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By
--------------------------
Authorized Signatory
If all of the Securities of a series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel), shall appoint, in accordance with this Section and in
accordance with such procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment designated by the
Company with respect to such series of Securities.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than May 1 and November 1 in each
year, commencing November 1, 1997, and at such other times as the Trustee may
request in writing, the Company shall furnish or cause to be furnished to the
Trustee information as to the names and addresses of the Holders, and the
Trustee shall preserve such information and similar information received by it
in any other capacity and afford to the Holders access to information so
preserved by it, all to such extent, if any, and in such manner as shall be
required by the Trust Indenture Act; provided, however, that no such list need
be furnished so long as the Trustee shall be the Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Not later than June 1 in each year, commencing June 1, 1997,
the Trustee shall transmit to the Holders and the Commission a report, dated as
of the next preceding December 31 with respect to any events and other matters
described in Section 313(a) of the Trust Indenture Act, in such manner and to
the extent, if any, required by the Trust Indenture Act. The Trustee shall
transmit to the Holders and the Commission, and the Company shall file with the
Trustee (within 30 days after filing with the Commission in the case of reports
which pursuant to the Trust Indenture Act must be filed with the Commission and
furnished to the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such manner, as shall
be required by the Trust Indenture Act.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
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The Company shall not consolidate with or merge into any other
corporation, or convey or otherwise transfer or lease its properties and assets
substantially as an entirety to any Person, unless
(a) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a Person organized and validly
existing under the laws of Australia, any State thereof or territory
therein, or the United States, any State thereof or the District of
Columbia, and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of and
premium, if any, and interest, if any, on all Outstanding Securities
and the performance of every covenant of this Indenture on the part of
the Company to be performed or observed;
(b) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, or other transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transactions have been
complied with.
SECTION 1102. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, or other transfer or lease
of the properties and assets of the Company substantially as an entirety in
accordance with Section 1101, the successor corporation formed by such
consolidation or into which the Company is merged or the Person to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities Outstanding hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
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(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities, all as provided in Article
Eleven; or
(b) to add one or more covenants of the Company or other
provisions for the benefit of all Holders or for the benefit of the
Holders of, or to remain in effect only so long as there shall be
Outstanding, Securities of one or more specified series, or to
surrender any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default with respect to
all or any series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or
to add any new provision to this Indenture; provided, however, that if
such change, elimination or addition shall adversely affect the
interests of the Holders of Securities of any series (other than any
series the terms of which permit such change, elimination or addition)
Outstanding on the date of such indenture supplemental hereto, such
change, elimination or addition shall become effective with respect to
such series only pursuant to the provisions of Section 1202 hereof or
when no Security of such series remains Outstanding; or
(e) to provide collateral security for all but not part of
the Securities; or
(f) to establish the form or terms of Securities of any
series as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest, if
any, thereon and for the procedures for the registration, exchange and
replacement thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders thereof, and for
any and all other matters incidental thereto; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee or co-trustee with respect
to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more than
one Trustee, pursuant to the requirements of Section 911(b); or
(i) to provide for the procedures required to permit the
Company to utilize, at its option, a noncertificated system of
registration for all, or any series of, the Securities; or
(j) to change any place or places where (i) the principal of
and premium, if any, and interest, if any, on all or any series of
Securities shall be payable, (ii) all or any series of Securities may
be surrendered for registration of transfer, (iii) all or any series of
Securities may be surrendered for exchange and (iv) notices and demands
66
to or upon the Company in respect of all or any series of Securities
and this Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other changes to the provisions hereof
or to add other provisions with respect to matters or questions arising
under this Indenture, provided that such other changes or additions
shall not adversely affect the interests of the Holders of Securities
of any series.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery of this
Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more
changes to any provisions hereof or the inclusion herein of
any additional provisions, or shall by operation of law be
deemed to effect such changes or incorporate such provisions
by reference or otherwise, this Indenture shall be deemed to
have been amended so as to conform to such amendment to the
Trust Indenture Act, and the Company and the Trustee may,
without the consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes or
additional provisions; or
(y) if any such amendment shall permit one or more
changes to, or the elimination of, any provisions hereof
which, at the date of the execution and delivery hereof or at
any time thereafter, are required by the Trust Indenture Act
to be contained herein, this Indenture shall be deemed to have
been amended to effect such changes or elimination, and the
Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to
evidence such amendment hereof.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series then Outstanding
under this Indenture, considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or modifying
in any manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that if there shall be Securities of more than one
series Outstanding hereunder and if a proposed supplemental indenture shall
directly affect the rights of the Holders of Securities of one or more, but less
than all, of such series, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all series so
directly affected, considered as one class, shall be required; and provided,
further, that no such supplemental indenture and no supplemental indenture
executed pursuant to Section 1201 shall:
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(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon (or the amount
of any installment of interest thereon) or change the method of
calculating such rate or reduce any premium payable upon the redemption
thereof, or change the coin or currency (or other property), in which
any Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity of any Security (or, in the
case of redemption, on or after the Redemption Date), without, in any
such case, the consent of the Holder of such Security, or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of the Holders of
which is required for any such supplemental indenture, or the consent
of the Holders of which is required for any waiver of compliance with
any provision of this Indenture or of any default hereunder and its
consequences, or reduce the requirements of Section 1304 for quorum or
voting, without, in any such case, the consent of the Holder of each
Outstanding Security of such series, or
(c) modify any of the provisions of this Section, Section 607
or Section 813 with respect to the Securities of any series, except to
increase the percentages in principal amount referred to in this
Section or such other Sections or to provide that other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent of
any Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section, or the deletion of this
proviso, in accordance with the requirements of Sections 911(b) and
1201(h).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof. A
waiver by a Holder of such Holder's right to consent under this Section shall be
deemed to be a consent of such Holder.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 901) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
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shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and, upon the execution and
delivery thereof, any such restatement shall supersede this Indenture as
theretofore in effect for all purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect
if this Indenture is at the time subject to the Trust Indenture Act.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Securities shall have
been established in a Board Resolution or an Officer's Certificate as
contemplated by Section 301, and not in an indenture supplemental hereto,
additions to, changes in or the elimination of any of such terms may be effected
by means of a supplemental Board Resolution or Officer's Certificate, as the
case may be, delivered to, and accepted by, the Trustee; provided, however, that
such supplemental Board Resolution or Officer's Certificate shall not be
accepted by the Trustee or otherwise be effective unless all conditions set
forth in this Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a supplemental indenture
shall have been appropriately satisfied. Upon the acceptance thereof by the
Trustee, any such supplemental Board Resolution or Officer's Certificate shall
be deemed to be a "supplemental indenture" for purposes of this Article Twelve.
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ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or all,
series may be called at any time and from time to time pursuant to this Article
to make, give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series for any purpose specified in
Section 1301, to be held at such time and at such place in the Borough
of Manhattan, The City of New York, as the Trustee shall determine, or,
with the approval of the Company, at any other place. Notice of every
such meeting, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting, shall
be given, in the manner provided in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting
of the Holders of Securities of one or more, or all, series by the
Company or by the Holders of 33% in aggregate principal amount of all
of such series, considered as one class, for any purpose specified in
Section 1301, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not
have given the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be
held as provided herein, then the Company or the Holders of Securities
of such series in the amount above specified, as the case may be, may
determine the time and the place in the Borough of Manhattan, The City
of New York, or in such other place as shall be determined or approved
by the Company, for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (a) of this
Section.
(c) Any meeting of Holders of Securities of one or more, or
all, series shall be valid without notice if the Holders of all
Outstanding Securities of such series are present in person or by proxy
and if representatives of the Company and the Trustee are present, or
if notice is waived in writing before or after the meeting by the
Holders of all Outstanding Securities of such series, or by such of
them as are not present at the meeting in person or by proxy, and by
the Company and the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities
of one or more, or all, series a Person shall be (a) a Holder of one or more
Outstanding Securities of such series, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
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Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to attend any meeting of Holders of Securities of
any series shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of the series with respect to which a
meeting shall have been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders of Securities of such
series; provided, however, that if any action is to be taken at such meeting
which this Indenture expressly provides may be taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of such series, considered as one class, the Persons
entitled to vote such specified percentage in principal amount of the
Outstanding Securities of such series, considered as one class, shall constitute
a quorum. In the absence of a quorum within one hour of the time appointed for
any such meeting, the meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case the meeting may be
adjourned for such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for such
period as may be determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Except as provided by Section 1305(e),
notice of the reconvening of any meeting adjourned for more than 30 days shall
be given as provided in Section 1302(a) not less than 10 days prior to the date
on which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by Section 1202, any resolution presented to
a meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of the
series with respect to which such meeting shall have been called, considered as
one class; provided, however, that, except as so limited, any resolution with
respect to any action which this Indenture expressly provides may be taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series, considered as one
class, may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Securities
of such series, considered as one class.
Any resolution passed or decision taken at any meeting of
Holders of Securities duly held in accordance with this Section shall be binding
on all the Holders of Securities of the series with respect to which such
meeting shall have been held, whether or not present or represented at the
meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS;
CONDUCT AND ADJOURNMENT OF MEETINGS.
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(a) Attendance at meetings of Holders of Securities may be in
person or by proxy; and, to the extent permitted by law, any such proxy
shall remain in effect and be binding upon any future Holder of the
Securities with respect to which it was given unless and until
specifically revoked by the Holder or future Holder of such Securities
before being voted.
(b) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities in regard to proof
of the holding of such Securities and of the appointment of proxies and
in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence
of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise permitted
or required by any such regulations, the holding of Securities shall be
proved in the manner specified in Section 104 and the appointment of
any proxy shall be proved in the manner specified in Section 104. Such
regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders as provided in Section 1302(b), in
which case the Company or the Holders of Securities of the series
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Persons entitled to vote a
majority in aggregate principal amount of the Outstanding Securities of
all series represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to
one vote for each $1 principal amount of Securities held or represented
by him; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder
of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which
a quorum is present may be adjourned from time to time by Persons
entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series represented at the meeting,
considered as one class; and the meeting may be held as so adjourned
without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed the signatures
of the Holders or of their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities, of the series with respect to
which the meeting shall have been called, held or represented by them. The
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permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the proceedings of each
meeting of Holders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization, direction,
notice, consent, waiver or other action may be made, given or taken by Holders
by written instruments as provided in Section 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Securities, or any part thereof,
or for any claim based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation, covenant or agreement
under this Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future of the Company or of any predecessor
or successor corporation (either directly or through the Company or a
predecessor or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or future, of the
Company or of any predecessor or successor corporation, either directly or
indirectly through the Company or any predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or to be implied herefrom or therefrom, and that any such
personal liability is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution of this Indenture and the
issuance of the Securities.
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ARTICLE FIFTEEN
SECURITIES OF THE FIRST AND SECOND SERIES
SECTION 1501. DESIGNATION OF SECURITIES OF THE FIRST AND SECOND SERIES.
There is hereby created a series of Securities designated
"6.75% Senior Notes due 2006" (herein sometimes referred to as "Securities of
the First Series") and limited in aggregate principal amount (except as
contemplated in Section 301(b) hereof) to Two Hundred Fifty Million Dollars
($250,000,000). The form and terms of the Securities of the First Series shall
be established in an Officer's Certificate.
There is hereby created a series of Securities designated
"7.25% Senior Notes due 2016" (herein sometimes referred to as "Securities of
the Second Series") and limited in aggregate principal amount (except as
contemplated in Section 301(b) hereof) to One Hundred Million Dollars
($100,000,000). The form and terms of the Securities of the Second Series shall
be established in an Officer's Certificate.
-------------------------
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
EASTERN ENERGY LIMITED (ACN 064 651 118)
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
00
XXX XXXX XX XXX XXXX, Trustee
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
Vice President
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 21st day of November, 1996, before me personally came
Xxxxxxx X. Xxxxxx, to me known, who, being by me duly sworn, did depose and say
that he is the Managing Director of Eastern Energy Limited (ACN 064 651 118),
one of the corporations described in and which executed the foregoing instrument
and that he signed his name thereto by authority of the Board of Directors.
/s/ Illegible
-----------------------------------------
Notary Public
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 2nd day of December, 1996, before me personally came
Xxxxxx X. Xxxxxx, to me known, who, being by me duly sworn, did depose and say
that he is a Vice President of The Bank of New York, one of the corporations
described in and which executed the foregoing instrument and that he signed his
name thereto by authority of the Board of Directors.
/s/ Illegible
-----------------------------------------
Notary Public
78
