1
EXHIBIT 4.1
________________________________________________________________________________
XXXXXX PHARMACEUTICALS, INC.
TO
FIRST UNION NATIONAL BANK
TRUSTEE
SENIOR INDENTURE
Dated as of __________, 1998
________________________________________________________________________________
2
XXXXXX PHARMACEUTICALS, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE DATED AS OF ____________, 1998
Trust Indenture
Act Section
------- ---------
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . 608
. . . . . . . . . . . . . . . . . . . . . . . . 610
Section 311(a) . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . . . . . 701
. . . . . . . . . . . . . . . . . . . . . . . . 702
(b) . . . . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . . . . 702
Section 313(a) . . . . . . . . . . . . . . . . . . . . 703
(b) . . . . . . . . . . . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . . . . . . . . . . . . . 703
Section 314(a)(1)-(3) . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . 101
. . . . . . . . . . . . . . . . . . . . . . . . 1004
(b) . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . 502
. . . . . . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . Not applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . 104
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . 108
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be part of the Indenture.
3
TABLE OF CONTENTS
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONSOF GENERAL APPLICATION .. . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 106. Notice to Holders of Securities; Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 107. Language of Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 108. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 109. Effect of Headings and Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 110. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 111. Separability Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 112. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 113. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 114. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE TWO
SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 203. Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 204. Form of Legend for Book-Entry Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE THREE
THE SECURITIES . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . 16
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons . . . . . . . . . . . . . . . . . 18
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . 23
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons . . . . . . . . . . . . 23
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest . . . . . . . . . . 25
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
i
4
SECTION 512. Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 602. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . 27
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . 30
SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders. . . . . . . . . . . . . . . . . . . 32
SECTION 702. Preservation of Information: Communications to Holders . . . . . . . . . . . . . . . . . . . 32
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 704. Reports by Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE EIGHT
CONSOLIDATION, MERGER OR SALE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms. . . . . . . . . . . . . . . . . . . . . 33
SECTION 802. Successor Substituted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 901. Supplemental Indentures without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 905. Conformity with Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE TEN
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 1004. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 1005. Purchase of Securities by Company or Subsidiary . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 1006. Statement by Officer as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 1007. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 1008. Limitation on Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 1009. Limitations On Sale And Leaseback Transactions. . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 1010. Subsidiary Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 1011. Additional Guarantors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 1012. Restrictions On Subsidiary Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ii
5
ARTICLE ELEVEN
REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 1103. Selection of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 1107. Securities Redeemed in Part. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE TWELVE
SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . . . . . 45
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . 46
SECTION 1302. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1304. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 1306. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 1401. Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 1402. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 1403. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 1404. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings . . . . . . . . . . . . . 49
SECTION 1406. Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . . . . . . . . 50
iii
6
INDENTURE, dated as of _________, 1998, between Xxxxxx
Pharmaceuticals, Inc., a corporation duly organized and existing under the laws
of the State of Nevada (herein called the "Company"), having its principal
office at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000, and First Union National
Bank, a National Banking Association, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as provided in this
Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE,
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of a 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:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as may be approved by a
significant segment of the accounting profession as in effect on the
Issue Date, referred to as "U.S. GAAP;" and
(4) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision, and the
words "date of this Indenture" and "date hereof" and other words of
similar import refer to the effective date of the original execution
and delivery of this Indenture, viz. ______________, 1998.
"Act," when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" shall mean, as of any particular time, the present
value, discounted at a rate per annum equal to the weighted average interest
rate of all Securities Outstanding at the time under this Indenture compounded
semi-annually of the obligation of a lessee for rental payments during the
remaining term of lease on any portion of any Principal Property (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended); the net amount of rent required to be paid for any such
period shall be the total amount of the rent payable
7
by the lessee with respect to such period, but may exclude amounts required to
be paid on account of maintenance and repairs, insurance, taxes, assessments,
water rates and similar charges; and, in the case of any lease which is
terminable by the lessee upon the payment of a penalty, such net amount shall
also include the amount of such penalty.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business Day.
For purposes of Section 106, the Bond buyer shall be deemed to be an Authorized
Newspaper in the City of New York.
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer, including, without limitation, a
Security in temporary or permanent global form.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security bearing the legend specified in
Section 204, evidencing all or part of a series of Securities, issued to the
Depository for such series or its nominee, and registered in the name of such
Depository or nominee. Book-Entry Securities shall not be deemed to be
Securities in global form for purposes of Sections 201 and 203 and Article
Three of this Indenture.
"Business Day," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in that Place of Payment or other location is
authorized or obligated by law or executive order to close.
"Certification Date" means with respect to Securities of any series
(1) if Bearer Securities of such series are not to be initially represented by
a temporary global Security, the date of delivery of the definitive Bearer
Security and (2) if Bearer Securities of such series are initially represented
by a temporary global Security, the earlier of (A) the Exchange Date with
respect to Securities of such series and (B) if the first Interest Payment Date
with respect to Securities of such series is prior to such Exchange Date, such
Interest Payment Date.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such,
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President
or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Worth" of any Person means the excess of (1) the
consolidated assets of such Person and its Subsidiaries after all appropriate
deductions in accordance with U.S. GAAP (including without limitation, reserves
for doubtful receivables, obsolescence, depreciation and amortization) less (2)
the consolidated liabilities of such Person and its Subsidiaries, in each case
computed and consolidated in accordance with U.S. GAAP.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered
or any such office subsequently designated by the Trustee.
2
8
The term "corporation" means a corporation, association, limited
liability company, joint-stock company or business trust.
The term "coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the clearing agency registered under the Securities Exchange Act of
1934, specified for that purpose as contemplated by Section 301.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Funded Debt" means any Indebtedness which by its terms matures at or
is extendable or renewable at the sole option of the obligor without requiring
the consent of the obligee to a date more than twelve months after the date of
the creation of such Indebtedness.
"Guarantor" means each Subsidiary of the Company which becomes a
guarantor of the Company's Indebtedness pursuant to Sections 1010 and 1011.
"Guaranty" means any agreement, undertaking or arrangement by which
any Person guarantees, endorses or otherwise becomes or is contingently liable
upon (by direct or indirect agreement, contingent or otherwise, to provide
funds for payment, to supply funds to, or otherwise to invest in, a debtor, or
otherwise to assure a creditor against loss) the debt, obligation or other
liability of any other Person (other than by endorsements of instruments in the
course of collection), or guarantees the payment of dividends or other
distributions upon the shares of any other Person. The amount of the obligor's
obligation under any Guaranty shall (subject to any limitation set forth
therein) be deemed to be the amount of such other Person's debt, obligation or
other liability or the amount of such dividends or other distributions
guaranteed.
"Holder," when used with respect to any Security, means in the case of
a Registered Security the Person in whose name the Security is registered in
the Security Register and in the case of a Bearer Security the bearer thereof
and, when used with respect to any coupon, means the bearer thereof.
"Indebtedness" with respect to any Person, is defined to mean, at any
time, without duplication, (1) any debt (A) for money borrowed, or (B)
evidenced by a bond, note, debenture, or similar instrument for the payment of
which such Person is responsible or liable, or (C) which is a direct or
indirect obligation which arises as a result of banker's acceptances; (2) any
Off-Balance Sheet Liability, (3) any debt of others described in the preceding
clause (1) which such Person has guaranteed or for which it is otherwise
directly liable; (4) any Attributable Debt; (5) the obligation of such Person
as lessee under any lease of property which is reflected on such Person's
balance sheet as a capitalized lease; (6) to the extent not otherwise included
in this definition, net obligations under any Rate Hedging Obligations; and (7)
any deferral, amendment, renewal, extension, supplement or refunding of any
liability of the kind described in any of the preceding clauses (1), (2), (3),
(4), (5) and (6) provided, however, that, in computing the Indebtedness of any
Person, there shall be excluded any particular Indebtedness of any Person, if
(a) upon or prior to the maturity thereof, there shall have been deposited with
a depository in trust money (or evidence of Indebtedness if permitted by the
instrument creating such Indebtedness) in the necessary amount to pay, redeem
or satisfy such Indebtedness as it becomes due and (b) as a result of the
foregoing clause (a) such Indebtedness would not have appeared as a liability
on a balance sheet of such Person prepared in conformity with U.S. GAAP.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
3
9
The term "interest," when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Invests" means with respect to any Person, any act of investment by
such Person in other Persons (including Affiliates of such Person) in the form
of loans (including Guarantees), advances (excluding commission, travel and
similar advances to officers and employees made in the ordinary course of
business), capital contributions, purchases or other acquisitions for
consideration of Indebtedness, equity interests or other securities, and all
other acts that are or would be classified as acts of investment on a balance
sheet prepared in accordance with U.S. GAAP.
"Issue Date" means the date any series of Securities are first issued
pursuant to this Indenture.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Off-Balance Sheet Liability" means with respect to any Person, (1)
any repurchase obligation or liability of such Person with respect to accounts
or notes receivable paid by such Person, (2) the face amount of accounts
receivable pursuant to limited recourse or non-recourse sales and assignments
of accounts receivable of a Person to one or more entities provided that the
maximum face amount of accounts receivable which may be sold and the minimum
price which shall be paid for the receivables shall be established by that
which is permissible under the applicable agreement, (3) any repurchase
obligation or liability of such Person with respect to Principal Property
leased by such Person as lessee, (4) obligations existing with respect to any
other transaction which is the functional equivalent or takes the place of
borrowing but which does not constitute a liability on the consolidated balance
sheets of such Person excluding therefrom operating leases which do not require
payment by or due from such Person: (A) at the scheduled termination of such
operating lease, (B) pursuant to a required purchase by such Person of the
leased property, or (C) under any guaranty by such Person of the value of the
leased property, or (5) net liabilities under any Rate Hedging Obligation.
"Officers' Certificate" means a certificate complying with the
provisions of Section 102 signed by the Chairman of the Board, the President or
a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel reasonably
satisfactory to the Trustee which may be counsel for the Company.
"Original Issue Discount Security" means any Security, including any
zero-coupon security, which is issued at a price lower than the principal
amount payable upon the Stated Maturity thereof excluding interest at Stated
Maturity and which provides that upon redemption or acceleration of maturity
thereof an amount less than the amount payable upon the Stated Maturity thereof
(excluding interest at Stated Maturity) and determined in accordance with the
terms of such Security shall become due and payable pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made; and
(3) 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 that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
4
10
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities (A) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (B) the principal amount of a Security
denominated in a foreign currency or currencies, including composite
currencies, shall be the Dollar equivalent, determined on the date of original
issuance of such Security in the manner provided as contemplated by Section
301, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (A) above) of such Security,
and (C) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, 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. 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.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company, which shall initially be the Trustee.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places as specified in accordance with Section 301
where, subject to the provisions of Section 1002, the principal of and any
premium and interest on the Securities of that 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 or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Principal Property" means all real and tangible property owned or
leased by the Company or a Subsidiary constituting a part of any manufacturing
facility, quality control laboratory, warehouse or office within the United
States, except (1) any such facilities, laboratories, warehouses or offices (A)
owned or leased jointly or in common with one or more persons other than the
Company and its Subsidiaries in which the interest of the Company and its
Subsidiaries does not exceed 50%, or (B) which the Board of Directors
determines in good faith is not of material importance to the total business
conducted, or assets owned, by the Company and its Subsidiaries as an entirety,
or (2) any portion of such facilities, laboratories, warehouses or offices
which the Board of Directors determines in good faith not to be of material
importance to the use or operation thereof.
"Rate Hedging Obligations" means any and all obligations of any
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and therefor), under (1) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto from
the fluctuations of interest rates, exchange rates or forward rates applicable
to such party's assets, liabilities or exchange transactions, including, but
not limited to, Dollar- denominated or cross-currency interest rate exchange
agreements, forward currency exchange agreements, interest rate cap or collar
protection agreements, forward rate currency or internal rate options, puts,
warrants and those commonly known as interest rate "swap" agreements ; and (2)
any and all cancellations, buy backs, reversals, terminations or assignments of
any of the foregoing.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption 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.
5
11
"Registered Security" means any Security in the form established
pursuant to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, shall
mean any officer in the corporate trust department (or any successor group) of
the Trustee, including any Vice President, any Trust Officer, or any other
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred at the Corporate Trust Office
because of his or her knowledge of and familiarity with the particular subject.
"SEC" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such SEC is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"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 Instrument" shall mean any security agreement, chattel
mortgage, assignment, financing or similar statement or notice, continuation
statement, other agreement or instrument, or amendment or supplement to any
thereof, providing for, evidencing, creating, or perfecting any Security
Interest or lien.
"Security Interest" shall mean any interest in any real or personal
property or fixture which secures payment or performance of an obligation and
shall include any mortgage, lien, encumbrance, charge or other security
interest of any kind, whether arising under a Security Instrument or as a
matter of law, judicial process or otherwise.
"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
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary," with respect to any Person, means (1) a corporation a
majority of whose equity interests with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such Person, by such Person and one or more subsidiaries of such Person, or
by one or more Subsidiaries of such Person, or (2) any other Person (other than
a corporation) in which such Person, one or more Subsidiaries of such Person,
directly or indirectly, at the date of determination thereof has at least the
majority ownership interest; provided that in the case of (1) and (2) such
Subsidiary shall be required to be consolidated with the Company for financial
reporting purposes in compliance with U.S. GAAP.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this Indenture was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
6
12
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or
a non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" has the meaning specified in Section
1304.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture. If given in the form of an Officers' Certificate, such
Officers' Certificate shall certify that the application or request by the
Company to the Trustee is in compliance with this Indenture.
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 his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company 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.
SECTION 104. Acts of Holders.
(1) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing. If
Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders of
such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at
any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fourteen, 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 proxy or of
the holding by any Person of a Security shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee and the Company if made in the manner provided in
this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1406.
(2) 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. Where such execution is by
a signer acting in a capacity
7
13
other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(3) The Company may, in the circumstances permitted by
the Trust Indenture Act, fix any day as the record date for the
purpose of determining the Holders of Registered Securities of any
series entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on any
action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such series made by
any Person in respect of any such action, or, in the case of any such
vote, prior to such vote, the record date for any such action or vote
shall be the 30th day (or, if later, the date of the most recent list
of Holders required to be provided pursuant to Section 701) prior to
such first solicitation or vote, as the case may be. With regard to
any record date for action to be taken by the Holders of one or more
series of Securities, only the Holders of Securities of such series on
such date (or their duly designated proxies) shall be entitled to give
or take, or vote on, the relevant action.
(4) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall
be proved by the Security Register.
(5) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may
be proved by the production of such Bearer Securities or by a
certificate executed, as depositary, by any trust company, bank,
banker or other depositary, wherever situated, if such certificate
shall be deemed by the Trustee to be satisfactory, showing that at the
date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee
and the Company may assume that such ownership of any Bearer Security
continues until (A) another certificate or affidavit bearing a later
date issued in respect of the same Bearer Security is produced, or (B)
such Bearer Security is produced to the Trustee by some other Person,
or (C) such Bearer Security is surrendered in exchange for a
Registered Security, or (D) such Bearer Security is no longer
Outstanding. The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may
also be proved in any other manner which the Trustee deems sufficient.
(6) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security
shall bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon
such Security.
(7) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any
particular Security may do so with regard to all or any part of the
principal amount of such Security or by one or more duly appointed
agents each of which may do so pursuant to such appointment with
regard to all or any different part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with, (1) the Trustee by any
Holder or by the Company shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Department, or (2) 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
mailed, first-class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
Indenture, to the attention of its Treasurer, or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event, (1) such notice
shall be sufficiently given to Holders of Registered Securities if in writing
and mailed, first-class postage prepaid, to each Holder of a Registered
Security affected by such event, at the address of such Holder
8
14
as it appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer Securities if
published in an Authorized Newspaper in the City of New York and in such other
city or cities as may be specified in such Securities on a Business Day at
least twice, the first such publication to be not earlier than the earliest
date, and not later than the latest date, prescribed for the giving of such
notice.
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 of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. In any case where notice to Holders
of Registered Securities is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder of a
Registered Security shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein.
In case by the reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause
it shall be impracticable to publish any notice to Holders of Bearer Securities
as provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to
give notice by publication to Holders of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of any
notice to Holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 107. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
SECTION 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or excluded, as the case
may be.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or the Securities or coupons
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 112. Benefits of Indenture.
Nothing in this Indenture or the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders of Securities and coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
9
15
SECTION 113. Governing Law.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 114. 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 or coupons other than a provision in the Securities of any series
which specifically states that such provision shall apply in lieu of this
Section) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue 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.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in
substantially the form (including temporary or permanent global form) as shall
be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with law, or with the rules of any securities exchange or to
conform to general usage, all as may, consistently herewith, be determined by
the officers executing such Securities or coupons, as evidenced by their
execution of the Securities or coupons. If temporary Securities of any series
are issued in global form as permitted by Section 304, the form thereof shall
be established as provided in the preceding sentence. A copy of the Board
Resolution establishing the forms of Securities or coupons of any series (or
any such temporary global Security) shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee prior to the
delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities (or any such temporary global
Security) or coupons.
Unless otherwise specified as contemplated by Section 301, Securities
in bearer form shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
"This is one of the Securities referred to in the within-mentioned
Indenture.
_______________________________________
As Trustee
By: ____________________________________
Authorized Officer"
10
16
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as contemplated
by Section 301, then, notwithstanding clause (10) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may be reduced to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, of Outstanding Securities represented thereby shall
be made by the Trustee in such manner and upon instructions given by such
Person or Persons as shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 303 or Section 304. Subject to
the provisions of Section 303 and, if applicable, Section 304, the Trustee
shall deliver and redeliver any Security in permanent global form in the manner
and upon instructions given by the Person or Persons specified therein or in
the applicable Company Order. If a Company Order pursuant to Section 303 or
304 and an Officers' Certificate has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
SECTION 204. Form of Legend for Book-Entry Securities.
Any Book-Entry Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. This Security is exchangeable for Securities
registered in the name of a Person other than the Depository or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Security (other than a transfer of this Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except
in such limited circumstances."
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 three hundred million
dollars ($300,000,000).
The Securities may be issued in one or more series, and each such
series shall rank equally and pari passu with each other series. There shall
be established in or pursuant to a Board Resolution and, subject to Section
303, set forth, or determined in the manner provided, in an Officers'
Certificate delivered to the Trustee, or established in one or more indentures
supplemental hereto and delivered to the Trustee prior to the issuance of
Securities of any series:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all other
Securities) and the price (expressed as a percentage of the aggregate
principal amount thereof) at which the Securities will be issued;
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section
11
17
304, 305, 306, 906 or 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated
and delivered hereunder);
(3) whether Securities of the series are to be issuable
as Registered Securities, Bearer Securities or both, whether any
Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be
issuable in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and
of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than
in the manner provided in Section 305;
(4) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest, the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature and the extent to which,
or the manner in which, any interest payable on a temporary global
Security on an Interest Payment Date will be paid if other than in the
manner provided in Section 304;
(5) the date or dates on which the principal of the
Securities of the series is payable;
(6) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by which such rate
shall be determined, the date or dates from which any such interest
shall accrue, the Interest Payment Dates on which any such interest
shall be payable, and the Regular Record Date for any interest payable
on any Registered Securities on any Interest Payment Date and whether,
and under what circumstances, additional amounts with respect to such
Securities shall be payable as set forth in Section 1001;
(7) the place or places where, subject to the provisions
of Section 1002, the principal of and any premium and interest on
Securities of the series shall be payable, any Registered Securities
of the series may be surrendered for registration of transfer,
Securities of the series may be surrendered for exchange and notices
and demands to or upon the Company in respect of the Securities of the
series and this Indenture may be served;
(8) the right, if any, of the Company to redeem
Securities of the series, in whole or in part, at its option and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series may be so
redeemed;
(9) the obligation, if any, of the Company to redeem,
purchase, or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of
the series shall be redeemed, purchased or repaid, in whole or in
part, and premiums paid, if applicable, pursuant to such obligation
(including any obligation of the Trustee to establish redemption or
sinking fund accounts);
(10) the denominations in which any Registered Securities
of the series shall be issuable, if other than denominations of $1,000
and any integral multiple thereof, and the denomination or
denominations in which any Bearer Securities of the series shall be
issuable, if other than the denomination of $5,000;
(11) the currency or currencies, including composite
currencies, in which payment of the principal of and any premium and
interest on any Securities of the series shall be payable if other
than the currency of the United States of America and the manner of
determining the equivalent thereof in the currency of the United
States of America for purposes of the definition of "Outstanding" in
Section 101;
(12) if the amount of payments of principal of, and any
premium or interest on, any Securities of the series may be determined
with reference to an index, the manner in which such amounts shall be
determined;
(13) if other than the principal amount thereof, the
portion of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
12
18
(14) if the principal of and any premium or interest on
the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies, including
composite currencies, other than that or those in which the Securities
are stated to be payable, the currency or currencies in which payment
of the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(15) whether the Securities of the series shall be issued
upon original issuance in whole or in part in the form of one or more
Book-Entry Securities and, in such case, (A) the Depository with
respect to such Book-Entry Security or Securities; and (B) the
circumstances under which any such Book-Entry Security may be
exchanged for Securities registered in the name of, and any transfer
of such Book-Entry Security may be registered to, a Person other than
such Depository or its nominee, if other than as set forth in Section
305;
(16) with respect to Securities issued with original issue
discount, the rate of accretion thereof;
(17) the applicability, if any, of Section 1008 or Section
1009 to the Securities of such series;
(18) if other than the Trustee, the identity of the
Security Registrar and any Paying Agent;
(19) if either or both of the provisions of Section 1302
or 1303 are applicable to the Securities of such series and any
additional means of discharge pursuant to Section 1302 or 1303 and any
additional conditions to the provisions of Section 1302 or 1303;
(20) any other Events of Default or covenants with respect
to the Securities of such series; and
(21) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture except as
permitted by Section 901(5)).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 303) set forth, or determined in the manner provided,
in the Officers' Certificate referred to above or in any indenture supplemental
hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee prior to the delivery of the Officers' Certificate
setting forth the terms of the series.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in the denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Treasurer, its Chief Financial
Officer, or its Vice President - Finance, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or
facsimile. Coupons shall bear the facsimile signature of the Treasurer or any
Assistant Treasurer of the Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
unless
13
19
otherwise provided with respect to such series, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States (in any case where the Trustee does not maintain
an office in that country where the Bearer Securities are held, the Company
shall appoint an appropriate paying agent in that country); and provided,
further, that, unless otherwise provided with respect to such series, a Bearer
Security may be delivered in connection with its original issuance only if the
Person entitled to receive such Bearer Security shall have furnished a
certificate in the form set forth in Exhibit A to this Indenture, dated no
earlier than the Certification Date. If any Security shall be represented by a
permanent global Bearer Security, then, for purposes of this Section and
Section 304, the notation of a beneficial owner's interest therein upon
original issuance of such Security or upon exchange or transfer of a portion of
a temporary global Security shall be deemed to be delivery in connection with
its original issuance of such beneficial owner's interest in such permanent
global Security. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and canceled.
In authenticating Securities the Trustee shall be entitled to receive,
shall be deemed to have acted prudently and shall be fully protected in relying
upon, an Opinion of Counsel stating:
(1) that the forms of such Securities and coupons
established by or pursuant to a Board Resolution as contemplated by
Section 201 have been established in conformity with the provisions of
this Indenture;
(2) if the terms of such Securities and any coupons have
been established by or pursuant to a Board Resolution as permitted by
Section 301, that such terms have been established in conformity with
the provisions of this Indenture; and
(3) that such Securities, together with any coupons
appertaining thereto, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
Such Opinion of Counsel shall also cover such other matters as the Trustee may
reasonably request.
The Trustee shall not be required to authenticate such Securities the
forms or terms of which have been established by or pursuant to a Board
Resolution if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Notwithstanding the provisions of Section 301 and of the two preceding
paragraphs, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 301 or the Company Order and Opinion of
Counsel otherwise required pursuant to such preceding paragraphs at or prior to
the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon issuance of the first
Security of such series to be issued.
After the original issuance of the first Security of such series to be
issued, any separate request by the Company that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by the Company (which, subject to Section 601, the Trustee shall
be fully protected in relying on) that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date of original issuance of
the first Security of such series to be issued.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security, or the Security to which such coupon appertains, a certificate
of authentication substantially in the form provided for herein executed by the
Trustee 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. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 309 together with an Officers'
Certificate (which need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company, for
14
20
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 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 or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, in registered
form or, if authorized, in bearer form with one or more coupons or without
coupons, and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. In the case of any series
issuable as Bearer Securities, such temporary Securities may be in global form.
A temporary Bearer Security shall be delivered only in compliance with the
conditions set forth in Section 303.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company maintained pursuant to Section 1002 in a Place
of Payment for such series for the purpose of exchanges of Securities of such
series without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series (accompanied by any unmatured
coupons appertaining thereto) the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like aggregate principal amount
of definitive Securities of the same series and of like tenor of authorized
denominations; provided, however, that no definitive Bearer Security shall be
issued in exchange for a temporary Registered Security.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the
"Common Depositary"), for the benefit of Euro-clear and CEDEL S.A., for credit
to the respective accounts of the beneficial owners of such Securities (or to
such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security of a series (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities of that series in aggregate principal amount
equal to the principal amount of such temporary global Security, executed by
the Company. On or after the Exchange Date such temporary global Security
shall be surrendered by the Common Depositary to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or from time to time in part,
for definitive Securities of that series without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such temporary global Security to be exchanged; provided, however, that, unless
otherwise specified in such temporary global Security, upon such presentation
by the Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euro-clear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL S.A. as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form set
forth in Exhibit B to this Indenture. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in bearer
form, registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as contemplated by
Section 301, and if any combination thereof is so specified, as requested by
the beneficial owner thereof; provided, however, that no definitive Bearer
Security or permanent global Security shall be delivered in exchange for a
temporary Bearer Security except in compliance with the conditions set forth in
Section 303.
Unless otherwise specified in the temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged on the Exchange Date for definitive Securities
(and, where the form of the definitive Securities is not specified by the
Holder, for an interest in a permanent global Security) of the same series and
of like tenor unless, on or prior to the Exchange Date, such beneficial owner
has not delivered to Euro-clear or CEDEL S.A., as the case may be, a
certificate in the form set forth in Exhibit A to this Indenture dated no
earlier than the Certification Date, copies of which certificate shall be
available from the offices of Euro-clear and CEDEL S.A., the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent and after the Exchange Date, the interest of a beneficial owner of
Securities of a series in a temporary global Security shall be exchanged for
definitive Securities (and, where the form of the definitive Securities is not
specified by the Holder,
15
21
for an interest in a permanent global Security) of the same series and of like
tenor following such beneficial owner's delivery to Euro-clear or CEDEL S.A.,
as the case may be, of a certificate in the form set forth in Exhibit A to this
Indenture dated no earlier than the Certification Date. Unless otherwise
specified in such temporary global Security, any exchange shall be made free of
charge to the beneficial owners of such temporary global Security, except that
a Person receiving definitive Securities must bear the cost of insurance,
postage, transportation and the like in the event that such Person does not
take delivery of such definitive Securities in person at the offices of
Euro-clear or CEDEL S.A. Definitive Securities in bearer form to be delivered
in exchange for any portion of a temporary global Security shall be delivered
only outside the United States.
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, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities of such series shall
be payable to Euro-clear and CEDEL S.A. on such Interest Payment Date upon
delivery by Euro-clear and CEDEL S.A. to the Trustee of a certificate or
certificates in the form set forth in Exhibit B to this Indenture, for credit
without further interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euro-clear or CEDEL S.A., as the case may be, a certificate in the
form set forth in Exhibit A to this Indenture. Any interest so received by
Euro-clear and CEDEL S.A. and not paid as herein provided shall be returned to
the Trustee immediately prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the Company in accordance with
Section 1003.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 1002 a register (being the
combined register of the Security Registrar and all transfer agents designated
pursuant to Section 1002 for the purpose of registration of transfer of
Securities and sometimes collectively referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of each series of Registered
Securities and the registration of transfers of such Registered Securities. The
Company will, prior to the issuance of any Securities hereunder, appoint the
Trustee as the initial "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided. The Company may at
any time replace such Security Registrar, change such office or agency or act
as its own Security Registrar. The Company will give prompt written notice to
the Trustee of any change of the Security Registrar or of the location of such
office or agency.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 1002 for such purpose 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 Registered
Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor,
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. Unless otherwise
provided with respect to any series of Securities, Bearer Securities may not be
issued in exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, such
exchange may be effected if the Bearer Securities are accompanied by payment in
funds acceptable to the Company in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
1002, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the
United
16
22
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor after the close of business at such
office or agency on (1) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (2)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest accrued, as the case may be, will not be payable
on such Interest Payment Date or proposed date for payment, as the case may be,
in respect of the Registered Security issued in exchange for such Bearer
Security but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Trustee
shall execute, authenticate and deliver the Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such
interests for Securities of such series and of like tenor and principal amount
of another authorized form and denomination, as specified as contemplated by
Section 301, then within three days prior to the earliest date on which such
interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities of that series in an aggregate principal amount equal to
the principal amount of such permanent global Security, executed by the
Company. On or after the earliest date on which such interests may be so
exchanged, such permanent global Security shall be surrendered from time to
time in accordance with instructions given to the Trustee and the Common
Depositary (which instructions shall be in writing but need not comply with
Section 102 or be accompanied by an Opinion of Counsel) by the Common
Depositary or such other depositary or Common Depositary as shall be specified
in the Company Order with respect thereto to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or in part, for definitive
Securities of the same series without charge and the Trustee shall authenticate
and deliver, in exchange for each portion of such permanent global Security, a
like aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such permanent
global Security to be exchanged which, unless the Securities of the series are
not issuable both as Bearer Securities and as Registered Securities, as
contemplated by the supplemental indenture for such series or in an Officers'
Certificate, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof; provided, however, that no such exchanges may occur during a
period beginning at the opening of business 15 days before any selection of
Securities of that series is to be redeemed and ending on the relevant
Redemption Date; and provided, further, that no Bearer Security delivered in
exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. Promptly following
any such exchange in part, such permanent global Security shall be returned by
the Trustee to the Common Depositary or such other depositary or Common
Depositary referred to above in accordance with the instructions of the Company
referred to above. If a Registered Security is issued in exchange for any
portion of such permanent global Security after the close of business at the
office or agency where such exchange occurs on (1) any Regular Record Date and
before the opening of business at such office or agency on the relevant
Interest Payment Date, or (2) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Registered Security, but will be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such
permanent global Security is payable in accordance with provisions of this
Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee or any
transfer agent) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar or any
transfer agent duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, 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, 906 or 1107 not involving any transfer.
17
23
In the event of any redemption in part, the Company shall not be
required (1) to issue, register the transfer of or exchange Securities of any
series during a period beginning at the opening of business 15 days before any
selection of Securities of that series to be redeemed and ending at the close
of business on (A) if Securities of the series are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption, and
(B) if Securities of the series are issuable as Bearer Securities, the day of
the first publication of the relevant notice of redemption, or if Securities of
the series are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (2) to
register the transfer of or exchange any Registered Security, or portion
thereof, called for redemption, in whole or in part, except the unredeemed
portion of any Registered Security being redeemed in part, or (3) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series in like
principal amount and like tenor, provided that such Registered Security shall
be immediately surrendered for redemption.
Notwithstanding the foregoing and except as otherwise specified or
contemplated by the supplemental indenture for any relevant series, any
Book-Entry Security shall be exchangeable pursuant to this Section 305 or
Sections 304, 906 and 1107 for Securities registered in the name of, and a
transfer of a Book-Entry Security of any series may be registered to, any
Person other than the Depository for such Security or its nominee only if (1)
such Depository notifies the Company that it is unwilling or unable to continue
as Depository for such Book-Entry Security or if at any time such Depository
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, (2) the Company executes and delivers to the Trustee a Company Order that
such Book-Entry Security shall be so exchangeable and the transfer thereof so
registrable or (3) there shall have occurred and be continuing an Event of
Default, with respect to the Securities of such series. Upon the occurrence in
respect of any Book-Entry Security of any series of any one or more of the
conditions specified in clause (1), (2) or (3) of the preceding sentence or
such other conditions as may be specified, such Book-Entry Security may be
exchanged for Securities registered in the names of, and the transfer of such
Book-Entry Security may be registered to, such Persons (including Persons other
than the Depository with respect to such series and its nominees) as such
Depository shall direct. Notwithstanding any other provision of this
Indenture, any Security authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, any Book-Entry Security shall
also be a Book-Entry Security and shall bear the legend specified in Section
204 except for any Security authenticated and delivered in exchange for, or
upon registration of transfer of, a Book-Entry Security pursuant to the
preceding sentence.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto 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, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security, at the expense of
the Holder.
If there shall be delivered to the Company and the Trustee (1)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (2) such security or indemnity, at the expense of the
Holder as may be required by them to save each of them and any agent of either
of them harmless, then, in the absence of notice to the Company or the Trustee
that such Security or coupon has been acquired by a bona fide purchaser, the
Company shall execute and the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously
Outstanding, with coupons corresponding to the coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains, at the expense of the Holder.
If, after the delivery of such new Security, a bona fide purchaser of
the original Security in lieu of which such new Security was issued presents
for payment or registration such original Security, the Company and the Trustee
shall be entitled to recover such new Security from the Person to whom it was
delivered or any Person taking therefrom, except a bona fide purchaser, and
shall be entitled to recover upon the security or indemnity provided therefor
to the extent of any loss, damage, cost or expense incurred by the Company or
the Trustee in connection therewith.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security or coupon;
provided, however, that the principal of and any premium and interest on Bearer
Securities shall, except as otherwise provided in Section 1002, be payable only
at an office or agency located outside the United States.
18
24
Upon the issuance of any new Security under this Section, the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees, and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and any such new Security and coupons, if any, shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series and their coupons, if any, duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by any supplemental
indenture, or an Officers' Certificate, issued under Section 301 with respect
to any series of Securities, interest on any Registered Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest. Unless otherwise so provided, at the option of
the Paying Agent, payment of interest on any Registered Security may be made by
check mailed on or before the due date to the address of the Person entitled
thereto as such address shall appear in the Security Register. The Company
and Trustee shall be notified of all such actions.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security 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, in same day funds, equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Registered 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 Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be then 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.
19
25
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as
the owner of such Registered Security for the purpose of receiving payment of
principal (and premium, if any) and (subject to Sections 305 and 307) any
interest 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.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the bearer of
any coupon as the owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
Notwithstanding the foregoing, with respect to any Book-Entry
Security, nothing herein shall prevent the Company, the Trustee, or any agent
of the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by a Depository or impair, as between a
Depository and holders of beneficial interests in any Book-Entry Security, the
operation of customary practices governing the exercise of the rights of the
Depository (or its nominee) as Holder of such Book-Entry Security.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee. All Registered Securities and matured coupons so
delivered shall be promptly canceled by the Trustee. All Bearer Securities and
unmatured coupons so delivered shall be held by the Trustee and, upon
instruction by a Company Order, shall be canceled or held for reissuance.
Bearer Securities and unmatured coupons held for reissuance may be reissued
only in replacement of mutilated, lost, stolen or destroyed Bearer Securities
of the same series and like tenor or the related coupons pursuant to Section
306. All Bearer Securities and unmatured coupons held by the Trustee pending
such cancellation or reissuance shall be deemed to be delivered for all
purposes of this Indenture and the Securities. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. 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 and coupons held by the Trustee shall be disposed of in accordance
with its customary practice.
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 of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for, and any right to receive
additional amounts, as provided in Section 1004), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) an entire series of Securities theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose
20
26
surrender is not required or has been waived as provided in
Xxxxxxx 000, (xx) Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Xxxxxxx 000, (xxx) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) all such series of Securities and, in the
case of (i) or (ii) below, any coupons appertaining thereto
not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption
within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the
Company;
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities and coupons not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and any interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to clause (1)(B) of this Section,
the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and
any premium and interest for whose payment such money has been deposited.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order, rule
or regulation of any administrative or governmental body), unless it is either
inapplicable to a particular series of Securities or it is specifically deleted
or modified in or pursuant to the terms of such series or in the form of
Security of such series:
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
21
27
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series as and when the same
becomes due and payable whether at its Maturity, by declaration of
acceleration, call for redemption or otherwise; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of a
series of Securities other than that series), and continuance of such
default or breach 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 a 25 percent in
aggregate principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(5) the entry by a court having jurisdiction of (A) a
decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law, or (B) a decree or
order adjudging the Company bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 90 consecutive days; or
(6) the commencement by the Company of a voluntary case
or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated bankrupt or insolvent, or the consent
by it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other
similar law or the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company
in furtherance of any such action; or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case, either the
Trustee or the Holders of not less than 25 percent in aggregate principal
amount of the Outstanding Securities of that series may declare the principal
aggregate amount (or, if any of the Securities of that series are Original
Issue Discount Securities, such portion of the aggregate principal amount of
such Securities as may be specified in the terms thereof) of all of the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such aggregate principal amount (or specified amount) shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in aggregate principal amount
of the Outstanding Securities of that series, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series, (B) the principal of
(and premium, if any, on) any Securities of that series which has become due
otherwise than by such declaration of acceleration and any interest thereon at
the rate or rates prescribed therefor in such Securities, (C) to the extent
that payment of such interest is lawful, interest upon overdue interest at the
rate or rates prescribed therefor in such Securities, and (D) all sums paid or
advanced by the Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel; and (2) all
Events of Default with respect to
22
28
Securities of that series, other than the non-payment of the principal of
Securities of that series which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513. No such
rescission shall affect any subsequent default or impair any right consequent
thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if (1) default is made in the payment of
any interest on any Security when such interest becomes due and payable and
such default continues for a period of 30 days, or (2) default is made in the
payment of the principal of (or premium, if any, on) any Security at the
Maturity thereof, the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities and coupons, the whole amount
then due and payable on such Securities and coupons for principal and any
premium and interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and premium and on any
overdue interest, at the rate or rates prescribed therefor in such Securities
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails 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 occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons 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 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized 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 amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture 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; provided,
however, that the Trustee may, on behalf of Holders, vote for the election of a
trustee of bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or the Securities
or coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any
premium or
23
29
interest, upon presentation of the Securities or coupons, or both as the case
may be, and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities and
coupons in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities and
coupons for principal and any premium and interest, respectively.
In any case in which Securities are Outstanding that are denominated
in more than one currency and the Trustee is directed to make ratable payments
under this Section to Holders of such Securities, unless otherwise provided
with respect to any series of Securities, the Trustee shall calculate the
amount of such payments as follows: (1) as of the day the Trustee collects an
amount under this Article, the Trustee shall, as to each Holder of a Security
to whom an amount is due and payable under this Section that is denominated in
a foreign currency, determine that amount in Dollars that would be obtained for
the amount owing such Holder, using the rate of exchange at which in accordance
with normal banking procedures the Trustee could purchase in the City of New
York, dollars with such amount owing; (2) calculate the sum of all dollar
amounts determined under (1) and add thereto any amounts due and payable in
dollars; and (3) using the individual amounts determined in (1) or any
individual amounts due and payable in dollars, as the case may be, as a
numerator, and the sum calculated in (2) as a denominator, calculate as to each
Holder of a Security to whom an amount is owed under this Section the fraction
of the amount collected under this Article payable to such Holder. Any
expenses incurred by the Trustee in actually converting amounts owing Holders
of Securities denominated in a currency other than that in which any amount is
collected under this Article shall be likewise (in accordance with this
paragraph) borne ratably by all Holders of Securities to whom amounts are
payable under this Section and shall be reimbursed to the Trustee under FIRST
above.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining judgment against the Company in any court it is necessary to
convert the sum due in respect of the principal of, or premium, if any, or
interest on, the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in the City of New York the
Required Currency with the Judgment Currency on the Business Day in the City of
New York next preceding that on which final judgment is given. Neither the
Company nor the Trustee shall be liable for any shortfall nor shall either of
them benefit from any windfall in payments to Holders of Securities under this
Section caused by a change in exchange rates between the time the amount of a
judgment against the Company is calculated as above and the time the Trustee
converts the Judgment Currency into the Required Currency to make payments
under this Section to Holders of Securities, but payment of such judgment shall
discharge all amounts owed by the Company on the claim or claims underlying
such judgment.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25 percent in aggregate
principal amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in aggregate principal amount of the Outstanding
Securities of that series;
24
30
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the right of
any Holder of any Security or coupon to receive payment of the principal of and
any premium and any interest on such Security or payment of such coupon on the
Stated Maturity or Maturities expressed in such Security or coupon (or, in the
case of redemption, on the Redemption Date), or to institute suit for the
enforcement of any such payment, on or after such respective dates shall not be
impaired or adversely affected without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities and coupons shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons 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 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
or coupon to exercise any right or remedy accruing upon any Event of Default
shall 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 of Securities or coupons may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture;
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction;
(3) the Trustee shall not be obligated to take any action
unduly prejudicial to Holders not joining in such direction; and
(4) the Trustee shall not be obligated to take any action
which would cause it to incur liability unless it has received
satisfactory indemnity against such liabiltiy.
25
31
SECTION 513. Waiver of Past Defaults.
The Holders of 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 thereunder with respect to the
Securities of such series and its consequences, except a default (1) in the
payment of the principal of or any premium or interest on any Security of such
series, or (2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company.
SECTION 515. 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 to 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 SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(1) Except during the continuance of an Event of Default,
the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
and
(2) In the case an Event of Default known to the Trustee
has occurred and is continuing, the Trustee shall, prior to the
receipt of directions, if any, from a majority of the Holders of the
Securities, exercise such rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise,
as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
Notwithstanding the foregoing, 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. 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.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series
of which the Trustee has knowledge, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the extent provided
by the Trust Indenture Act; provided, however, that in the case of any default
of the character specified in Section 501(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
26
32
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any 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 inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder and the Trustee shall not be
liable for any actions or omissions of the Common Depository, and any
Clearing Agency, Euroclear or Cedel S.A.;
(8) the Trustee shall not be liable for any error of
judgment made in good faith by it unless it shall be proven that the
Trustee was negligent in ascertaining the pertinent facts;
(9) the Trustee may be a depositary for funds of, may
make loans to and may perform other routine banking services for, the
Company and certain of its affiliates in the normal course of
business; and
(10) the Trustee shall not be liable for any action taken
or omitted by it in good faith in accordance with the directions of
the Company in accordance with this Indenture and/or the Holders
relating to the exercise of any remedy thereunder or the exercise of
any trust or power conferred on it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) and in any coupons shall be taken as
the statements of the Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
27
33
SECTION 605. May Hold Securities.
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 coupons and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 606. 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
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee, and each predecessor Trustee,
and any Paying Agent, from time to time reasonable compensation for
all services rendered by it (or them) hereunder (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee and each predecessor Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify the Trustee, its affiliates, directors,
employees and agents and each predecessor Trustee for, and to hold
them harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection
with the negotiation, acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
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, except funds
held in trust for the benefit of the Holders of particular Securities.
Notwithstanding the foregoing, funds collected and held in compliance with
Section 506 FIRST shall not be considered to be funds held in trust for the
benefit of the Holders of particular Securities.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time 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. No obligor upon any
Security issued under this Indenture or a person directly or indirectly
controlling, controlled by or under common control with such obligor shall
serve as Trustee under this Indenture.
28
34
SECTION 610. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 611.
(2) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 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.
(3) The Trustee may be removed at any time with respect
to the securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Trustee and to the Company.
(4) If at any time:
(A) the Trustee shall fail to comply with Section
608 after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(B) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(C) the Trustee shall become incapable of acting
or shall be adjudged bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or a 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 case, (i) the
Company, by a Board Resolution, may remove the Trustee with
respect to all Securities, or (ii) subject to Section 514, any
Holder of a Security who has been a bona fide Holder of a
Security 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.
(5) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the
Trustee for any cause, 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
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 611. If, within one year
after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities of
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, each successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company
or the Holders of Securities of such series and accepted appointment
in the manner required by Section 611, any Holder of a Security who
has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of
such series. Such court may thereupon, after such notice, if any, as
it may deem proper, appoint a successor Trustee.
(6) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to the
Securities of any series in the manner provided in Section 106. 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.
29
35
SECTION 611. Acceptance of Appointment by Successor.
(1) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, 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 further act, deed
or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee, with like effect as if originally
named Trustee hereunder; but on the request of the Company or each
successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder. Any Trustee ceasing to act shall, nevertheless, retain a
prior lien upon all property or funds held or collected by such
Trustee to secure any amounts then due it pursuant to the provisions
of Section 607.
(2) 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 (A) 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, (B) 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
(C) 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 as co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(3) Upon request of any successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (1) or (2) of this Section,
as the case may be.
(4) No 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 612. 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 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), to obtain payment of claims in
certain cases, or to realize for its own account on certain property received
30
36
in respect of such claim as security or otherwise, the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may, by an instrument in writing, appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which may be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue or upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. 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 of America, any State thereof or the
District of Columbia (or, if Bearer Securities, organized and doing business
under the laws of the country in which the Bearer Securities are eligible),
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 (or, if Bearer Securities, an
authority of the country in which the Bearer Securities are eligible). 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 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 such 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 such Authenticating Agent.
An Authenticating Agent may, and if it shall cease to be eligible
shall, 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 notice of resignation or upon
such termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Registered Securities, if any, of the series
with respect to which such Authenticating Agent will serve, as their names and
addresses appear in the Security Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers, and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee 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 payment, subject to the
provisions of Section 607.
31
37
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have been endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
-----------------------------------
As Trustee
By:________________________________
As Authenticating Agent
By:________________________________
Authorized Officer"
If all the Securities of a series may not be originally issued at one
time, and if the Company has an Affiliate eligible to be appointed as an
Authenticating Agent hereunder or 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 an Authenticating Agent (which, if so requested by the Company, shall
be such Affiliate of the Company) having an office in a Place of Payment
designated by the Company with respect to such series of Securities. The
Trustee is hereby initially appointed the Authenticating Agent. The Trustee
shall have no liability for the acts or omissions of any other Authenticating
Agent appointed by it hereunder with due care.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee:
(1) semi-annually, not later than 15 days after a Regular
Record Date, a list, in such form as the Trustee may reasonably
require, containing all the information in the possession or control
of the Company, or any of its Paying Agents other than the Trustee, as
to the names and addresses of the Holders of Securities as of the
immediately preceding Regular Record Date, and
(2) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished; excluding from any
such list names and addresses received by the Trustee in its capacity
as Security Registrar.
SECTION 702. Preservation of Information: Communications to Holders.
(1) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as provided
in Section 701, and the names and addresses of Holders received by the
Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished.
(2) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
32
38
(3) Every Holder of Securities or coupons, by receiving
and holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of either of them
shall be held accountable by reason of any disclosure of information
as to names and addresses of Holders made pursuant to the Trust
Indenture Act and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under
Section 702(2).
SECTION 703. Reports by Trustee.
(1) On or before August 1 in each year following the date
hereof, the Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto.
(2) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the SEC and with
the Company. The Company will notify the Trustee when any Securities
are listed on any stock exchange.
SECTION 704. Reports by Company.
In addition to the certificates delivered to the Trustee pursuant to
Section 1007, the Company shall file with the Trustee and the SEC, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the SEC pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be filed with
the Trustee within 15 days after the same is so required to be filed with the
SEC.
ARTICLE EIGHT
CONSOLIDATION, MERGER OR SALE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the Person 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 corporation, partnership or
trust which shall expressly assume, by a supplemental indenture
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of and any
premium and interest (including all additional amounts, if any,
payable pursuant to Section 1004) on all the Securities and the
performance or observance of every other covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction
and treating any indebtedness which becomes an obligation of the
Company or a Subsidiary as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of 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
happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which
the Company is merged or 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
33
39
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 and coupons and may liquidate and dissolve.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities pursuant to Article Eight; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form, provided
that any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any
material respect; or
(5) to add to, change or eliminate any of the provisions
of this Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit
of such provision, nor (ii) modify the rights of the Holder of any
such Security with respect to such provision, or (B) shall become
effective only when there is no such Security Outstanding; or
(6) to secure the Securities pursuant to the requirements
of Section 1008 or otherwise; or
(7) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 201 and 301;
or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611(2); or
(9) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
defective or inconsistent with any other provision herein or in any
supplemental indenture, or to make any other provisions with respect
to matters or questions arising under this Indenture; provided, that
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in principal amount of
the Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series and any
34
40
related coupons under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby, (1) change the Stated Maturity of the
principal of, or any installment of principal of or interest on, any Security,
or reduce the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or change the Redemption Date
thereof, or change any obligation of the Company to pay additional amounts
pursuant to Section 1004 (except as contemplated by Section 801(1) and
permitted by Section 901(1)), or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
change the coin or currency in which any Security or any premium or interest
thereon is payable, or change any right of redemption, purchase or repayment by
the Company at the option of the Holder, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or (2) reduce
the percentage in aggregate principal amount of the Outstanding Securities of
any series, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture, or reduce the
requirements of Section 1404 for quorum or voting, or (3) change any obligation
of the Company to maintain an office or agency in the places and for the
purposes specified in Section 1002, or (4) modify any of the provisions of
this Section, Section 513 or Section 1007 except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby, or (5) change the terms, including the definitions
used with respect to any mandatory redemptions of or any redemption at the
option of the Company of the Securities as set forth in Article Eleven;
provided, however, that this clause shall not be deemed to require the consent
of any Holder of a Security or coupon with respect to changes in the references
to "the Trustee" and concomitant changes in this Section and Section 1007 or
the deletion of this provision, in accordance with the requirements of Sections
611(2) and 901(8).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. Execution of Supplemental Indentures.
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 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture and that all conditions precedent
under this Article to the execution of such supplemental indenture have been
met. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. 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.
SECTION 906. 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
35
41
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series and of like
tenor.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 301 with respect to any
series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain (1) in the Borough of Manhattan, the City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may
be surrendered for exchange, where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served
and where Bearer Securities of that series and related coupons may be presented
or surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (2) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of that series
and related coupons may be presented and surrendered for payment (including
payment of any additional amounts payable on Securities of that series pursuant
to Section 1004); provided, however, that if the Securities of that series are
listed on The International Stock Exchange of the United Kingdom and the
Republic of Ireland Limited, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange, and (3) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United
States an office or agency where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee and prompt
notices to the Holders as provided in Section 106 of the location, and any
change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect of
any series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations and surrenders of Securities of that series may be
made and notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including payment
of any additional amounts payable on Bearer Securities of that series pursuant
to Section 1004) at any Paying Agent for such series located outside the United
States, and the Company hereby appoints the same as its agents to receive such
respective presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States provided, however, that, if
the Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium and interest on any Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section
1004) shall be made at the office of the Company's Paying Agent in the Borough
of Manhattan, the City of New York, if (but only if) payment in Dollars of the
full amount of such principal, premium, interest or additional amounts, as the
case may be, at all offices or agencies outside the United States maintained
for the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
36
42
The Company may also from time to time designate one or more other
offices or agencies where Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to so maintain an office or
agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee and the Holders of any such designation or rescission and of any
other change in the location of any such other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of and any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure to so act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
and any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal and any 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 will promptly notify the Trustee of its action or
failure to so act.
The Company will cause each Paying Agent for any series of Securities
(other than the Company or the Trustee) to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will (1) comply with
the provisions of the Trust Indenture Act applicable to it as a Paying Agent,
and (2) during the continuance of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment in
respect of the Securities of that series, and upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to 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 any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal and any premium or interest has become due and payable
shall be paid to the Company on Company Request (unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law), or (if then held by the Company) shall be discharged from such trust; and
the Holder of such Security or any coupon appertaining thereto shall (unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property law) thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper in each Place of Payment, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 1004. Additional Amounts.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto additional amounts as provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security
of any series or payment of any related coupon or the net proceeds received on
the sale or exchange of any Security of any series, such mention shall be
deemed to include mention of the payment of additional amounts provided for in
this Section to the extent that, in such context, additional amounts are, were
or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if
applicable) in any provisions hereof shall not be construed as excluding
additional amounts in those provisions hereof where such express mention is not
made.
37
43
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts
required by this Section. The Company covenants to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section.
SECTION 1005. Purchase of Securities by Company or Subsidiary.
If and so long as the Securities of a series are listed on The
International Stock Exchange of the United Kingdom and the Republic of Ireland
Limited and such stock exchange shall so require, the Company will not, and
will not permit any of its Subsidiaries to, purchase any Securities of that
series by private treaty at a price (exclusive of expenses and accrued
interest) which exceeds 120% of the mean of the nominal quotations of the
Securities of that series as shown in The Stock Exchange Daily Official List
for the last trading day preceding the date of purchase.
SECTION 1006. Statement by Officer as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For
purposes of this Section 1006, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
SECTION 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 1005 with respect to the
Securities of any series if before the time for such compliance the Holders of
a majority in principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
SECTION 1008. Limitation on Liens.
Unless established in or pursuant to a Board Resolution and, subject
to Section 303, set forth in or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series, the provisions of
this Section 1008 shall apply to each series of Securities issued under this
Indenture:
(1) The Company will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist, directly or
indirectly, any Indebtedness secured by a Security Interest upon any
Principal Property of the Company or of a Subsidiary, or on any share
of stock or debt of any Subsidiary, whether owned as of the date of
this Indenture or hereafter acquired, without making effective
provision (and the Company hereby covenants that in any such case it
shall make or cause to be made effective provision) whereby the
Securities of that series then Outstanding and any other Indebtedness
of the Company or any Subsidiary then entitled by its terms thereto
shall be secured by such Security Interest equally and ratably with
(or, in the case of the Securities of that series and if the Company
shall so determine, and in any case where the other secured
Indebtedness is subordinated in right of payment to the Securities,
prior to) any and all other Indebtedness of the Company
38
44
or any Subsidiary thereby secured for so long as any such other
Indebtedness of the Company or any Subsidiary shall be so secured;
provided, that nothing in this Section 1008 shall prevent, restrict or
apply to Indebtedness secured by:
(A) (i) Any Security Interest upon property or
assets which is created prior to or contemporaneously with, or
within 360 days after, (a) in the case of the acquisition of
such property or assets, the completion of such acquisition
and (b) in the case of the construction, development or
improvement of such property or assets, the later to occur of
the completion of such construction, development or
improvement or the commencement of operation or use of the
property or assets, which Security Interest secures or
provides for the payment, financing or refinancing, directly
or indirectly, of all or any part of the acquisition cost of
such property or assets or the cost of construction,
development or improvement thereof; or (ii) any Security
Interest upon property or assets existing at the time of the
acquisition thereof (but not any Security Interest established
in anticipation of the acquisition thereof), which Security
Interest secures obligations assumed by the Company or any
Subsidiary; or (iii) any conditional sales agreement or other
title retention agreement with respect to any property or
assets acquired by the Company or any Subsidiary; or (iv) any
Security Interest existing on the property or assets or shares
of stock of a corporation or firm at the time such corporation
or firm is merged into or consolidated with the Company or any
Subsidiary or at the time of a sale, lease or other
disposition of the property or assets of such corporation or
firm as an entirety or substantially as an entirety to the
Company or any Subsidiary or at the time such corporation
becomes a Subsidiary (but not any Security Interest
established in anticipation of the acquisition thereof); or
(v) any Security Interest existing on the property, assets or
shares of stock of any successor which shall have become the
Company in accordance with the provisions of Section 801 and
802 hereof; provided, in each case, that any such Security
Interest described in the foregoing clauses (ii), (iii), (iv)
or (v) does not attach to or affect property or assets owned
by the Company or any Subsidiary prior to the event referred
to in such clauses; or
(B) Mechanics', materialmen's, carriers' or
other like liens arising in the ordinary course of business
(including construction of facilities) in respect of
obligations which are not due or which are being contested in
good faith; or
(C) Any Security Interest arising by reason of
deposits with, or the giving of any form of security to, any
governmental agency or any body created or approved by law or
governmental regulation, which is required by law or
governmental regulation as a condition to the transaction of
any business or the exercise of any privilege, franchise or
license; or
(D) Security Interests for taxes, assessments or
governmental charges or levies not yet delinquent or Security
Interests for taxes, assessments or governmental charges or
levies already delinquent but the validity of which is being
contested in good faith; or
(E) Security Interests (including judgment liens)
arising in connection with legal proceedings so long as such
proceedings are being contested in good faith and, in the case
of judgment liens, execution thereon is stayed; or
(F) Landlords' liens on fixtures located on
premises leased by the Company or any Subsidiary in the
ordinary course of business; or
(G) Any Security Interest in favor of any
governmental authority in connection with the financing of the
cost of construction or acquisition of property; or
(H) Any Security Interest arising by reason of
deposits to qualify the Company or any Subsidiary to conduct
business, to maintain self-insurance, or to obtain the benefit
of, or comply with, laws; or
(I) Any Security Interest that secures any
Indebtedness of a Subsidiary owing to the Company or another
Subsidiary or by the Company to a Subsidiary; or
(J) Any Security Interest incurred in connection
with industrial revenue or similar financing; or
39
45
(K) Any Security Interest created by any program
providing for the financing, sale or other disposition of
trade or other receivables qualified as current assets in
accordance with U.S. GAAP entered into by the Company or by
any Subsidiary, provided that such program is on terms
comparable for similar transactions, or any document executed
by the Company or any Subsidiary in connection therewith, and
provided that such Security Interest is limited to the trade
or other receivables in respect of which such program is
created or exists and the proceeds thereof; or
(L) Any extension, renewal or refunding (or
successive extensions, renewals or refundings) in whole or in
part of any Indebtedness secured by any Security Interest
referred to in the foregoing clauses (A) through (K),
inclusive, provided that the Security Interest securing such
Indebtedness shall be limited to the property or assets which,
immediately prior to such extension, renewal or refunding,
secured such Indebtedness and additions to such property or
assets and shall be on no more onerous terms than such prior
Security Interest.
Notwithstanding the foregoing provisions of this Section 1008(1), the
Company or any of its Subsidiaries may create, incur, assume or suffer to exist
any Indebtedness secured by a Security Interest without so securing the
Securities of that series if, at the time such Security Interest becomes a
Security Interest upon any Principal Property of the Company, or on any share
of stock or debt of any Subsidiary, or such Subsidiary and after giving effect
thereto, the Outstanding aggregate principal amount of all Indebtedness of the
Company and its Subsidiaries secured by Security Interests incurred other than
as a result of reliance on clauses (A) through (L) above (excluding
Indebtedness secured by a Security Interest existing as of the date of this
Indenture, but including the Attributable Debt in respect of Sale and Leaseback
Transactions (as defined in Section 1009), other than (i) Sale and Leaseback
Transactions which, if the Attributable Debt in respect thereof had been
Indebtedness secured by a Security Interest, would have been permitted by
clause (A)(i) above, (ii) Sale and Leaseback Transactions the proceeds of which
have been applied or committed to be applied in accordance with Section 1009
and (iii) Sale and Leaseback Transactions between the Company and any
Subsidiary) together with all Subsidiary Indebtedness not otherwise permitted
under Section 1012, inclusive, do not together, and without duplication, exceed
15% of the Consolidated Net Worth of the Company.
(2) If, upon any consolidation or merger of any
Subsidiary with or into any other corporation, or upon any
consolidation or merger of any other corporation with or into the
Company or any Subsidiary or upon any sale or conveyance of the
Principal Property of any Subsidiary as an entirety or substantially
as an entirety to any other Person, or upon any acquisition by the
Company or any Subsidiary by purchase or otherwise of all or any part
of the Principal Property of any other Person, any Principal Property
theretofore owned by the Company or such Subsidiary would thereupon
become subject to any Security Interest not permitted by the terms of
this Section 1008, the Company, prior to such consolidation, merger,
sale or conveyance, or acquisition, will, or will cause such
Subsidiary to, secure payment of the principal of and interest, if
any, on the Securities of that series (equally and ratably with, or if
the Company shall determine (or in any case where the other Security
Interest is on Subordinated Indebtedness,) prior to any other
Indebtedness of the Company or such Subsidiary then entitled thereto)
by a direct lien on all such Principal Property prior to all liens,
other than all liens for taxes and other than any liens theretofore
existing thereon by supplemental indenture hereto or otherwise.
(3) If at any time the Company or any Subsidiary shall
create, incur, assume or suffer to exist any Indebtedness secured by
any Security Interest not permitted by this Section 1008, to which the
covenant in the first paragraph of Section 1008(1) or Section 1008(2)
is applicable, the Company will promptly deliver to the Trustee
(A) an Officers' Certificate stating that the
covenant of the Company contained in the first paragraph of
Section 1008(1) or Section 1008(2) has been complied with; and
(B) an Opinion of Counsel to the effect that such
covenant has been complied with, and that any instruments
executed by the Company in the performance of such covenant
comply with the requirements of such covenant.
(4) In the event that the Company shall hereafter secure
the Securities equally and ratably with or prior to any other
obligation or indebtedness pursuant to the provisions of this Section
1008, the Trustee is hereby authorized to enter into an indenture or
agreement supplemental hereto and to take such action, if any, as it
may deem advisable to enable it to enforce effectively the rights of
the Holders of the Securities so secured, equally and ratably with or
prior to such other obligations or indebtedness.
40
46
SECTION 1009. Limitations On Sale And Leaseback Transactions.
Unless established in or pursuant to a Board Resolution and, subject
to Section 303, set forth in or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series, the provisions of
this Section 1009 shall apply to each series of Securities issued under this
Indenture:
The Company will not, and will not permit any Subsidiary to, enter
into any arrangement with any Person (other than with any Subsidiary) providing
for the leasing to the Company or any Subsidiary of any Principal Property
owned or hereafter acquired by the Company or such Subsidiary (except for
temporary leases for a term, including any renewal thereof, of not more than
three years and except for leases between the Company and a Subsidiary or
between Subsidiaries), which Principal Property has been or is to be sold or
transferred by the Company or such Subsidiary to such person (herein referred
to as a "Sale and Leaseback Transaction") unless (1) the Company or such
Subsidiary would be entitled, pursuant to the provisions of Section 1008, to
incur Indebtedness secured by a Security Interest on the property to be leased
without equally and ratably securing the Securities of that series, or (2) the
Company shall, and in any such case the Company covenants that it will, within
180 days after the effective date of any such arrangement, apply an amount
equal to the fair value (as determined by the Board of Directors) of such
property to the redemption of Securities that, by their terms, are subject to
redemption, or to the purchase and retirement of Securities, or to the payment
or other retirement of Funded Debt for money borrowed, incurred or assumed by
the Company which is pari passu with the Securities of that series or of Funded
Debt for money borrowed, incurred or assumed by any Subsidiary (other than, in
either case, intercompany Indebtedness), or (3) the Company shall within 180
days after the effective date of the Sale and Leaseback Transaction, enter into
a bona fide commitment or commitments to expend for the acquisition or capital
improvement of a Principal Property an amount at least equal to the fair value
(as determined by the Board of Directors) of such Principal Property.
Notwithstanding the foregoing, the Company may, and may permit any
Subsidiary to, effect any Sale and Leaseback Transaction that is not permitted
pursuant to clauses (1) through (3), inclusive, of this Section 1009, provided
that the Attributable Debt associated with such Sale and Leaseback Transaction,
together with the aggregate principal amount of Outstanding Indebtedness
secured by Security Interests upon Principal Property not permitted pursuant to
clauses (A) through (L) of Section 1008(1) and all Subsidiary Indebtedness not
otherwise permitted under Section 1012 , inclusive, do not together, and
without duplication, exceed 15% of the Consolidated Net Worth of the Company.
SECTION 1010. Subsidiary Guarantees.
Unless established in or pursuant to a Board Resolution and, subject
to Section 303, set forth in or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, upon the granting of any Guarantee of Indebtedness of the Company by
any Subsidiary of the Company (whether or not a Default or Event of Default has
occurred and is continuing), the Company shall cause such Subsidiary
unconditionally and fully to Guaranty on a senior or pari passu basis (on a
senior basis, if such Indebtedness is subordinated in right of payment to the
Securities) all of the Company's obligations under the Securities on the terms
set forth in this Section 1010 and execute and deliver such further documents
as necessary to effect said Guarantees of the Securities.
Upon (1) the full and unconditional release by all the obligees under
such Indebtedness of Guarantors of all obligations with respect thereto
(whether or not a Default or an Event of Default has occurred and is
continuing) or (2) the sale or disposition in its entirety (whether by merger,
stock purchase, asset sale or otherwise) of a Guarantor (or substantially all
of its assets) to a Person other than the Company or a Guarantor, which is
otherwise in compliance with this Indenture, such Guarantor (in the event of
such a release of such Guarantor or a sale or disposition of such Guarantor) or
the Person acquiring such assets (in the event of sale or disposition of all or
substantially all the assets of such Guarantor) shall be deemed automatically
and unconditionally released and discharged from all their obligations under
their Guaranty of the Securities.
Notwithstanding the above paragraphs, if and for so long as the
Securities are (without any requirement that any Subsidiary subsequently be a
Guarantor of any Securities) assigned a rating of Baa2 (or the equivalent) or
higher by Xxxxx'x Investors Service, Inc. or its successors ("Moody's") and a
rating of BBB (or the equivalent) or higher by Standard & Poor's Ratings
Services, a division of the XxXxxx-Xxxx Companies, Inc., or its successors
("S&P"), such Guarantors shall be deemed automatically and unconditionally
released and discharged from all their obligations under their Guarantees of
the Securities.
The obligations of each Guarantor under its Guaranty of the Securities
are limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor and after giving effect to
any
41
47
collections or rights with respect thereto from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guaranty of the Securities or pursuant to its contribution
obligations under this Indenture, result in the obligations of such Guarantor
under such Guaranty of the Securities not constituting a fraudulent conveyance
or fraudulent transfer under applicable Federal or state law. Each Guarantor
that makes a payment or distribution under the Guaranty of the Securities shall
be entitled to a contribution from each other Guarantor in pro rata amount
based on the Consolidated Net Worth of each Guarantor such that, immediately
after all such contributions, such payment will be borne by each such Guarantor
in an amount equal to such payment multiplied by a fraction, the numerator of
which is such Guarantor's Consolidated Net Worth and the denominator of which
is the aggregate Consolidated Net Worth of all Guarantors.
SECTION 1011. Additional Guarantors.
If at a time when there are Guarantees by any Subsidiary of any
Indebtedness of the Company outstanding, the Company or any of the Guarantors
Invests or transfers or causes to be transferred, in one transaction or a
series of related transactions, any assets or property (whether real or
personal, tangible or intangible) to any Subsidiary of the Company that is not
a Guarantor, or if at a time when there are Guarantees by any Subsidiary of any
Indebtedness of the Company outstanding the Company or any of the Guarantors
shall organize, acquire or otherwise Invest in another Person that becomes a
Subsidiary of the Company or such Subsidiary becomes a Guarantor of any
Indebtedness of the Company, then the Company shall cause such transferee,
acquiree or other Subsidiary to (1) execute and deliver to the Trustee a
supplemental indenture in form reasonably satisfactory to the Trustee pursuant
to which such Subsidiary shall fully and unconditionally Guaranty all of the
Company's obligations under the Securities and the Indenture on the terms set
forth in this Indenture and (2) deliver to the Trustee an Opinion of Counsel
that such supplemental indenture has been duly authorized, executed and
delivered by such Subsidiary and constitutes a legal, valid, binding and
enforceable obligation of such Subsidiary. Thereafter, such Subsidiary shall
be a Guarantor for all purposes of this Indenture (as it relates to all series
of Securities issued thereunder).
SECTION 1012. Restrictions On Subsidiary Indebtedness.
Unless established in or pursuant to a Board Resolution and, subject
to Section 303, set forth in or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, so long as any of the Securities provided for in this Indenture are
outstanding, the Company will not permit any of its Subsidiaries to issue,
assume, incur or guarantee any Indebtedness, except that this restriction shall
not apply to:
(1) Indebtedness existing as of the date of this
Indenture;
(2) Indebtedness of any Person existing at the time it
becomes a Subsidiary (including through merger or consolidation) and
not incurred as a result of, or in connection with or in anticipation
of, such Person becoming a Subsidiary, provided that such Indebtedness
(included Guarantees with respect thereto) is non-recourse to any
Person other than such Person and any Person who is not a Subsidiary
of the Company;
(3) Indebtedness of any Subsidiary to the Company or any
Guarantor of the Securities and unsecured intercompany Indebtedness of
a Subsidiary that is not a Guarantor for loans or advances made to
another Subsidiary provided that in any case, upon either (i) the
transfer or other disposition by the Company or a Subsidiary of any
Indebtedness so permitted to a Person other than the Company or
another Subsidiary or (ii) the issuance, sale, transfer or other
disposition (other than a pledge of the shares of such Subsidiary) of
shares of capital stock (including acquisition through merger or
consolidation) of such Subsidiary to a Person other than the Company
or another Subsidiary which, after giving effect thereto, results in
such Subsidiary ceasing to be a Subsidiary of the Company, the
provisions of this clause (3) shall no longer be applicable to such
Indebtedness and such Indebtedness shall be deemed to have been
issued, assumed incurred or guaranteed at the time of such transfer or
other disposition;
(4) The endorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary course of
business;
(5) The extension, renewal, refinancing or replacement
(or successive extensions, renewals, refinancings or replacements), in
whole or in part, of any Indebtedness referred to in the foregoing
clauses (1) and (2) and this clause (5) provided, however, that: (A)
the Indebtedness so issued has (i) an aggregate principal amount or
accreted value, as applicable, not in excess of the aggregate
principal amount or accreted value, as applicable, of the Indebtedness
being extended, renewed, refinanced or replaced (which amount shall be
deemed to include the amount of any undrawn or available amounts under
any committed credit or lease
42
48
facility to be so extended, renewed, refinanced or replaced), (ii) a
final Maturity Date or Redemption Date, as applicable, later than the
final Stated Maturity or final Redemption Date, if any, of the
Indebtedness being extended, renewed, refinanced or replaced and (iii)
an average life at the time of issuance of such Indebtedness that is
greater than the average life of the Indebtedness being extended,
renewed, refinanced or replaced; (B) the group of direct or contingent
obligors on such Indebtedness shall not be expanded as a result of any
such action (except that third parties that are not Affiliates of the
Company or any Guarantor may be such obligors); and (C) immediately
prior to and immediately after giving effect to any such extension,
renewal, refinancing or replacement, no Event of Default shall have
occurred and be continuing;
(6) Attributable Debt issued, incurred or assumed in
compliance with, or otherwise permitted by Section 1009; and
(7) Guarantees by any Subsidiary of the Company of any
Indebtedness of the Company, provided the Company is in compliance
with Sections 1010 and 1011.
Notwithstanding the foregoing provisions of this Section 1012, any
Subsidiary may issue, assume, incur or guarantee Indebtedness in an aggregate
amount outstanding at any time, that together with the aggregate of, without
duplication, (i) all other Indebtedness of Subsidiaries outstanding immediately
prior to such issuance, assumption, incurrence or guarantee (but not including
Indebtedness issued, assumed, incurred or guaranteed under clauses (1) through
(6) above), (ii) all Attributable Debt of the Company and its Subsidiaries not
issued, incurred, assumed in compliance with, or otherwise permitted, without
limitation, under Section 1009, and (iii) all Indebtedness secured by a
Security Interest not incurred in compliance with or otherwise permitted
Section 1008, does not exceed 15% of the Consolidated Net Worth of the Company.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. 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 any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In the case of any redemption at the election
of the Company of less than all the Securities of any series, 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 of such Redemption Date, of the aggregate principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of
the Securities of such series to be redeemed. In the case of any redemption of
Securities (i) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, or
(ii) pursuant to an election of the Company which is subject to a condition
specified in the terms of such Securities, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
SECTION 1103. Selection of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series of a specified tenor are to be
redeemed) the particular Securities to be redeemed shall be selected not more
than 45 days prior to the Redemption Date by the Company or the Trustee, from
the Outstanding Securities of such series not previously called for redemption,
by such method as the Company or the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to
the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Registered Securities of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series or of the principal amount of global Securities
of such series. If less than all of the Securities of such series and of a
specified tenor are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 45 days prior to the Redemption Date by the
Company or the Trustee, from the Outstanding Securities of such series and
specified tenor not previously called for redemption in accordance with the
preceding sentence.
43
49
The Company or the Trustee, as the case may be, shall promptly notify
the other in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106 to the Holders of Securities to be redeemed not less than 30 or more than
45 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption of any Securities, the principal amounts) of the
particular Securities to be redeemed, and that on and after the
Redemption Date, upon surrender of the Securities, new Securities of
such series in principal amount equal to the unredeemed part thereof
will be issued,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities, together
in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is
the case.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of and premium of, if any, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons
for such interest, and provided, further, that, unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the
44
50
Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment thereof (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series and of like tenor, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a 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, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee a Company Order
specifying the amount of the next ensuing sinking fund payment for that series
45
51
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
credited. Not less than 30 days before each such sinking fund payment date the
Company or the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may at its option by Board Resolution, at any time, elect
to have either Section 1302 or Section 1303 applied to the Outstanding
Securities of any series upon compliance with the conditions set forth below in
this Article Thirteen.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, the Company shall be discharged from any and all
obligations with respect to the Outstanding Securities of any series on the
date the conditions set forth below are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other obligations under
the Securities of such series and this Indenture insofar as the Securities of
such series are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of the Securities of such series to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on the Securities of such series when such payments are
due, (2) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 1002, 1003 and 1004, (3) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company's obligation to
the Trustee hereunder (including, but not limited to Section 607), and (4) this
Article Thirteen. Subject to compliance with this Article Thirteen, the
Company may exercise its option under this Section 1302 notwithstanding the
prior exercise of its option under Section 1303.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, (1) the Company shall be released from its
obligations with respect to the Securities of such series under Sections 801,
1005, 1008 and 1009 and (2) the occurrence of an event specified in Sections
501(3) or (4) shall not be deemed to be an Event of Default on and after the
date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"), but the remainder of this Indenture and such Securities shall be
unaffected thereby. For this purpose, such covenant defeasance means that the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section or clause whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or clause or by reason of any reference in any such Section or clause
to any other provision herein or in any such Section or clause to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1302 or Section 1303 to the then Outstanding Securities of any series:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 609 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds
in trust for the purpose of making the following payments specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series, (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient,
in the
46
52
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the
principal of (and premium, if any) and each installment of interest on
the Securities and any coupons pertaining thereto on the Stated
Maturity of such principal (and premium, if any) or installment of
interest in accordance with the terms of this Indenture and of the
Securities of such series. For this purpose, "U.S. Government
Obligations" means securities that are (i) direct obligations of the
United States of America for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act of
1933, as custodian with respect to any such U.S. Government Obligation
or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the
U.S. Government Obligation evidenced by such depository receipt.
(2) In the case of an election under Section 1302, the
trust described in Section 1304(1) above may only be established if
the Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the
date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not
occurred.
(3) In the case of an election under Section 1303, the
trust described in Section 1304(1) above may only be established if
the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and covenant defeasance and will
be subject to Federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such
deposit and covenant defeasance had not occurred.
(4) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to
the Securities of such series shall have occurred and be continuing on
the date of such deposit or, insofar as subsections 501(5) and (6) are
concerned, at any time during the period ending on the 121st day after
the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(5) Such defeasance or covenant defeasance shall not
cause the Trustee to have a conflicting interest within the meaning of
the Trust Indenture Act with respect to any securities of the Company.
(6) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by
which it is bound.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1302 or the covenant defeasance under Section 1303 (as
the case may be) have been complied with.
(8) Such defeasance or covenant defeasance shall not
result in the trust arising from such deposit constituting an
investment company as defined in the Investment Company Act of 1940,
or such trust shall be qualified under such Act or exempt from
regulation thereunder.
(9) In the event the Company elects Section 1302 and
establishes the trust described in Section 1304(1), the Holders of
such series are entitled to look only to such trust funds for payment
of principal of and any premium and any interest on their Securities
until Stated Maturity.
47
53
SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee -- collectively, for
purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in
respect of the Securities of such series shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities of such
series and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of the Securities of such series, of all
sums due and to become due thereon in respect of principal (and premium, if
any) and interest, but such money need not be segregated from other funds
except to the extent required by law. Holders of Securities, upon the
election of Section 1302, may only look to such trust funds for payment of
principal of and any premium and any interest on their Securities until Stated
Maturity.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
In the event that the Company makes an election pursuant to Section
1303, although the amount of money and U.S. Government Obligations on deposit
with the Trustee would be intended to be sufficient to pay amounts due on the
Securities of such series at the time of their Stated Maturity, in the event
the Company exercises its option to omit compliance with the covenants defeased
with respect to the Securities of any series pursuant to Section 1303, and the
Securities of such series are declared due and payable because of the
occurrence of any Event of Default not relating to the obligations listed in
Section 1303, and such amount may not be sufficient to pay amounts due on the
Securities of such series at the time of the acceleration resulting from such
Event of Default, the Company shall, in any event, remain liable for such
payments.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1302 or 1303 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to this Article Thirteen until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with Section
1302 or 1303; provided, however, that if the Company makes any payment of
principal of or any premium or interest on any Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of the Securities of such series to receive such payment from
the money held by the Trustee or the Paying Agent.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such 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 1402. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders
of Securities of any series for any purpose specified in Section 1401,
to be held at such time and at such place in the Borough of Manhattan,
the City of New York, or in London as the Trustee shall determine.
Notice of every meeting of Holders of
48
54
Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not
less than 21 nor more than 120 days prior to the date fixed for the
meeting.
(2) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal
amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities
of such series for any purpose specified in Section 1401, by written
request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first
publication of the notice of such meeting within 21 days after receipt
of such request or shall not thereafter proceed to cause the meeting
to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case
may be, may determine the time and the place in the Borough of
Manhattan, the City of New York, or in London for such meeting and may
call such meeting for such purposes by giving notice thereof as
provided in subsection (1) of this Section.
SECTION 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders a Person shall (1) be
a Holder of one or more Securities or (2) be a Person appointed by an
instrument in writing as proxy by a Holder of one or more Securities. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders shall be the Persons entitled to vote at such meeting and their counsel
and any representatives of the Trustee and its counsel and any representatives
of the Company and its counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1402(1), except that
such notice need be given only once not less than five days prior to the date
on which the meeting is scheduled to be reconvened. Notice of the reconvening
of an adjourned meeting shall state expressly the percentage, as provided
above, of the aggregate principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Except as limited by Section 512 or the proviso to the first paragraph
of Section 902, any resolution presented to a meeting (or adjourned meeting
duly reconvened at which a quorum is present as aforesaid) may be adopted by
the affirmative vote of the Holders of a majority in aggregate principal amount
of the Outstanding Securities of that series; provided, however, that, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in aggregate principal amount of the Outstanding
Securities of a series may be adopted at a meeting (or an adjourned meeting
duly reconvened and at which a quorum is present as aforesaid) by the
affirmative vote of the Holders of such specified percentage in aggregate
principal amount of the Outstanding Securities of that series.
To the extent consistent with the terms of this Indenture, any
resolution passed or decision taken at any meeting of Holders of Securities of
any series duly held in accordance with this Section shall be binding on all
the Holders of Securities of such series and the related coupons, whether or
not present or represented at the meeting.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(1) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Holders of Securities of a series in
regard to proof of the holding of Securities of such series and of the
appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be
proved in the manner specified in Section 104 or by having the
signature of the Person executing the proxy witnessed or
49
55
guaranteed by any trust company, bank or banker authorized by Section
104 to certify to the holding of Bearer Securities. Such regulations
may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(2) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall
have been called by the Company or by Holders of Securities as
provided in Section 1402(2), in which case the Company or the Holders
of Securities of the series calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of such series represented at the
meeting.
(3) At any meeting each Holder of a Security of such
series or proxy shall be entitled to one vote for each $1,000
aggregate principal amount of the Outstanding Securities of such
series held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect 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 of such series or
proxy.
(4) Any meeting of Holders of Securities of any series
duly called pursuant to Section 1402 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 such
series represented at the meeting; and the meeting may be held as so
adjourned without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record
so signed and verified shall be conclusive evidence of the matters therein
stated.
----------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
50
56
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
XXXXXX PHARMACEUTICALS, INC.
By:_____________________________________________
________________________________________________
AS TRUSTEE
By:_____________________________________________
51
57
EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY
BENEFICIAL OWNER OF
INTEREST IN A TEMPORARY GLOBAL SECURITY
Xxxxxx Pharmaceuticals, Inc.
[Title of Securities]
(the "Securities")
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (1) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States persons"), (2) are owned by United States person(s) that are
(A) foreign branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (B) United States person(s)
who acquired Securities through the foreign branches of the United States
financial institutions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case (A) or (B), each
such United States financial institution hereby agrees, on its own behalf or
through its agent, to comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986 as amended, and the regulations
thereunder), or (3) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in addition
if the owner of the Securities is a United States or foreign financial
institution described in clause (3) above (whether or not also described in
clause (1) or (2)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below (1) in the
case of debt securities, the Securities are beneficially owned by (A) non-U.S.
person(s) or (B) U.S. person(s) who purchased the Securities in transactions
which did not require registration under the Act; or (2) in the case of equity
securities, the Securities are owned by (i) non-U.S. person(s) (and such
person(s) are not acquiring the Securities for the account or benefit of U.S.
person(s)), or (ii) U.S. person(s) who purchased the Securities in a
transaction which did not require registration under the Act. If this
certification is being delivered in connection with the exercise of warrants
pursuant to Section 230.902(m) of Regulation S under the Act, then this is
further to certify that, except as set forth below, the Securities are being
exercised by and on behalf of non-U.S. person(s). As used in this paragraph,
the term "U.S. person" has the meaning given to it by Regulation S under the
Act.
As used herein, "United States" or "U.S." means the United States of
America (including the States and District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to $_________ of such
interest in the above Securities in respect of which we are not able to certify
and as to which we understand exchange and delivery of definitive Securities
(or, if relevant, exercise of any rights or collection of any interest) cannot
be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
*Dated: _______________, 199__.
58
NAME OF PERSON MAKING CERTIFICATION
By: ____________________________________
---------------------------
* To be dated no earlier than the Certification Date.
53
59
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN BY THE
EURO-CLEAR OPERATOR OR CEDEL X.X.
Xxxxxx Pharmaceuticals, Inc.
[Title of Securities]
(the "Securities")
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Indenture, dated as of
_____________________, 1998, between Xxxxxx Pharmaceuticals, Inc. and First
Union National Bank, a National Banking Association, the principal amount of
the above-captioned Securities (i) is owned by persons that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or
any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States persons"), (ii) is
owned by United States persons that are (A) foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section 1.165
-12(c)(1)(v)) ("financial institutions") purchasing for their own account or
for resale, or (B) United States persons who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (A) or (B), each such United States financial institution
has agreed, on its own behalf or through its agent, that it will comply with
the requirements of Section 165(1)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and to the further effect that the United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended,
then this is also to certify with respect to such principal amount of
Securities set forth above that, except as set forth below, we have received in
writing, by tested telex or by electronic transmission, from our Member
Organizations entitled to a portion of such principal amount, certifications
with respect to such portion, substantially to the effect set forth in the
Indenture.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any
interest) any portion of the temporary global Security excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange (or, if relevant, exercise of any rights
or collection of any interest) are no longer true and cannot be relied upon as
of the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
60
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification or a
copy hereof to any interested party in such proceedings.
Dated: ___________________, 199__.
(dated the Exchange Date or the Interest Payment Date)
Xxxxxx Guaranty Trust Company of New
York, as operator of the Euro-clear System
or
CEDEL S.A.
By:______________________________________
55
