Exhibit 4.3
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XXXXXXXXX XXXXXXX INCORPORATED
TO
STATE STREET BANK AND TRUST COMPANY
(Trustee)
_______________________
INDENTURE
Dated as of _________, 1998
_______________________
Senior Debt Securities
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TABLE OF CONTENTS
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RECITALS........................................................................................ 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions................................................................... 1
Act................................................................................... 2
Additional Amounts.................................................................... 2
Affiliate............................................................................. 2
Authenticating Agent.................................................................. 2
Authorized Newspaper.................................................................. 2
Bankruptcy Law........................................................................ 2
Bearer Security....................................................................... 2
Board of Directors.................................................................... 2
Board Resolution...................................................................... 3
Business Day.......................................................................... 3
Capital Stock......................................................................... 3
CEDEL................................................................................. 3
Commission............................................................................ 3
Common Depositary..................................................................... 3
Common Shares......................................................................... 3
Company............................................................................... 3
Company Certificate................................................................... 3
Company Request" and "Company Order................................................... 3
Conversion Event...................................................................... 4
Corporate Trust Office................................................................ 4
corporation........................................................................... 4
coupon................................................................................ 4
covenant defeasance................................................................... 4
Custodian............................................................................. 4
Defaulted Interest.................................................................... 4
defeasance............................................................................ 4
Dollar" or "$......................................................................... 4
DTC................................................................................... 4
ECU................................................................................... 4
Euroclear............................................................................. 4
European Communities.................................................................. 4
European Monetary System.............................................................. 4
Event of Default...................................................................... 4
Exchange Act.......................................................................... 5
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Exchange Date......................................................................... 5
Foreign Currency...................................................................... 5
GAAP.................................................................................. 5
Government Obligations................................................................ 5
Hedging Obligations................................................................... 5
Holder................................................................................ 5
Indenture............................................................................. 5
Indexed Security...................................................................... 6
interest ............................................................................. 6
Interest Payment Date................................................................. 6
Make-Whole Amount..................................................................... 6
mandatory sinking fund payment........................................................ 6
Maturity ............................................................................. 6
Notice of Default..................................................................... 6
Opinion of Counsel.................................................................... 6
optional sinking fund payment......................................................... 6
Original Issue Discount Security...................................................... 7
Outstanding........................................................................... 7
Paying Agent.......................................................................... 8
Payment Default....................................................................... 8
Permitted Investments................................................................. 8
Person................................................................................ 9
Place of Payment...................................................................... 10
Predecessor Security.................................................................. 10
Qualified GIC......................................................................... 10
Redemption Date....................................................................... 11
Redemption Price...................................................................... 11
Registered Security................................................................... 11
Regular Record Date................................................................... 11
Repayment Date........................................................................ 11
Repayment Price....................................................................... 11
Required Filing Dates................................................................. 11
Responsible Officer................................................................... 11
Securities Act........................................................................ 11
Security ............................................................................. 11
Security Register" and "Security Registrar............................................ 11
Significant Subsidiary................................................................ 11
Special Record Date................................................................... 12
Stated Maturity....................................................................... 12
Subsidiary............................................................................ 12
Trust Indenture Act................................................................... 12
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Trustee............................................................................... 00
Xxxxxx Xxxxxx......................................................................... 00
Xxxxxx Xxxxxx person.................................................................. 13
Yield to Maturity..................................................................... 13
SECTION 102. Compliance Certificates and Opinions.......................................... 13
SECTION 103. Form of Documents Delivered to Trustee........................................ 13
SECTION 104. Acts of Holders............................................................... 14
SECTION 105. Notices to Trustee and Company................................................ 16
SECTION 106. Notice to Holders; Waiver..................................................... 16
SECTION 107. Effect of Headings and Table of Contents...................................... 17
SECTION 108. Successors and Assigns........................................................ 17
SECTION 109. Separability Clause........................................................... 17
SECTION 110. Benefits of Indenture......................................................... 17
SECTION 111. No Personal Liability......................................................... 18
SECTION 112. Governing Law................................................................. 18
SECTION 113. Legal Holidays................................................................ 18
SECTION 114. Counterparts.................................................................. 18
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities........................................................... 18
SECTION 202. Form of Trustee's Certificate of Authentication............................... 19
SECTION 203. Securities Issuable in Global Form............................................ 19
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.......................................... 20
SECTION 302. Denominations................................................................. 24
SECTION 303. Execution, Authentication, Delivery and Dating................................ 24
SECTION 304. Temporary Securities.......................................................... 26
SECTION 305. Registration, Registration of Transfer and Exchange........................... 29
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.............................. 32
SECTION 307. Payment of Interest; Interest Rights Preserved................................ 33
SECTION 308. Persons Deemed Owners......................................................... 35
SECTION 309. Cancellation.................................................................. 36
SECTION 310. Computation of Interest....................................................... 36
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture................................... 37
SECTION 402. Application of Trust Funds................................................ 38
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default......................................................... 38
SECTION 502. Acceleration of Maturity; Rescission and Annulment........................ 40
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee........... 42
SECTION 504. Trustee May File Proofs of Claim.......................................... 42
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons............................................... 43
SECTION 506. Application of Money Collected............................................ 43
SECTION 507. Limitation on Suits....................................................... 44
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
or Make-Whole Amount, Interest and Additional Amounts............... 44
SECTION 509. Restoration of Rights and Remedies........................................ 45
SECTION 510. Rights and Remedies Cumulative............................................ 45
SECTION 511. Delay or Omission Not Waiver.............................................. 45
SECTION 512. Control by Holders of Securities.......................................... 45
SECTION 513. Waiver of Past Defaults................................................... 46
SECTION 514. Waiver of Usury, Stay or Extension Laws................................... 46
SECTION 515. Undertaking for Costs..................................................... 46
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults........................................................ 47
SECTION 602. Certain Rights of Trustee................................................. 47
SECTION 603. Not Responsible for Recitals or Issuance of Securities.................... 48
SECTION 604. May Hold Securities....................................................... 49
SECTION 605. Money Held in Trust; Permitted Investments................................ 49
SECTION 606. Compensation and Reimbursement............................................ 49
SECTION 607. Trustee Eligibility; Conflicting Interests................................ 50
SECTION 608. Resignation and Removal; Appointment of Successor......................... 50
SECTION 609. Acceptance of Appointment by Successor.................................... 52
SECTION 610. Merger, Conversion, Consolidation or Succession to Business............... 53
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SECTION 611. Appointment of Authenticating Agent........................................... 53
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.................................. 55
SECTION 702. Reports by Trustee............................................................ 55
SECTION 703. Company to Furnish Trustee Names and Addresses of Holders..................... 55
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales,
Leases and Conveyances.................................................... 56
SECTION 802. Rights and Duties of Successor Entity......................................... 56
SECTION 803. Company Certificate and Opinion of Counsel.................................... 57
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders............................ 57
SECTION 902. Supplemental Indentures with Consent of Holders............................... 59
SECTION 903. Execution of Supplemental Indentures.......................................... 60
SECTION 904. Effect of Supplemental Indentures............................................. 60
SECTION 905. Conformity with Trust Indenture Act........................................... 60
SECTION 906. Reference in Securities to Supplemental Indentures............................ 60
SECTION 907. Notice of Supplemental Indentures............................................. 60
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount,
Interest and Additional Amounts........................................... 61
SECTION 1002. Maintenance of Office or Agency.............................................. 61
SECTION 1003. Money for Securities Payments to Be Held in Trust............................ 63
SECTION 1004. Existence.................................................................... 64
SECTION 1005. Maintenance of Properties.................................................... 64
SECTION 1006. Insurance.................................................................... 64
SECTION 1007. Payment of Taxes and Other Claims............................................ 64
SECTION 1008. Reports...................................................................... 65
SECTION 1009. Statement as to Compliance................................................... 66
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SECTION 1010. Additional Amounts........................................................... 66
SECTION 1011. Waiver of Certain Covenants.................................................. 67
SECTION 1012. Seniority of Securities...................................................... 67
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article..................................................... 67
SECTION 1102. Election to Redeem; Notice to Trustee........................................ 68
SECTION 1103. Selection by Trustee of Securities to Be Redeemed............................ 68
SECTION 1104. Notice of Redemption......................................................... 68
SECTION 1105. Deposit of Redemption Price.................................................. 70
SECTION 1106. Securities Payable on Redemption Date........................................ 70
SECTION 1107. Securities Redeemed in Part.................................................. 71
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article..................................................... 71
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities........................ 71
SECTION 1203. Redemption of Securities for Sinking Fund.................................... 72
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article..................................................... 72
SECTION 1302. Repayment of Securities...................................................... 72
SECTION 1303. Exercise of Option........................................................... 73
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable............................................................... 73
SECTION 1305. Securities Repaid in Part.................................................... 74
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance......................................... 74
SECTION 1402. Defeasance and Discharge..................................................... 75
SECTION 1403. Covenant Defeasance.......................................................... 75
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.............................. 76
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SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.................................... 78
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.................................... 79
SECTION 1502. Call, Notice and Place of Meetings........................................... 79
SECTION 1503. Persons Entitled to Vote at Meetings......................................... 79
SECTION 1504. Quorum; Action............................................................... 80
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings.................................................................. 81
SECTION 1506. Counting Votes and Recording Action of Meetings.............................. 82
SECTION 1507. Evidence of Action Taken by Holders.......................................... 82
SECTION 1508. Proof of Execution of Instruments............................................ 82
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
vii
Reconciliation and tie between
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and Indenture
Trust Indenture Act Section Indenture Section
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310(a)(1), (2) and (5) 607(a)
310(a)(3) and (4) Not applicable
310(b) 608(d)
310(c) Not applicable
311 Not applicable
312(a) 704
312(b) Not applicable
312(c) 701
313(a) and (c) 702
313(b) Not applicable
314(a)(1), (2) and (3) 1008
314(a)(4) 1008
314(b) Not applicable
314(c) and (e) 102
314(d) Not applicable
315(a), (c), (d) and (e) Not applicable
315(b) 601
316(a) (last sentence) 101 ("Outstanding")
316(a)(1)(A) 512
316(a)(1)(B) 513
316(a)(2) and (c) Not applicable
316(b) 508
317(a)(1) 503
317(a)(2) 504
317(b) Not applicable
318(a) 112
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act, which provides that the provisions of Sections 310 to
and including 317 of the Trust Indenture Act are a part of and govern
every qualified indenture, whether or not physically contained
therein.
viii
INDENTURE
INDENTURE, dated as of __________, 1998, from HOMESTEAD VILLAGE
INCORPORATED, a Maryland corporation (hereinafter called the "Company"), having
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its principal office at 000 Xxxxxxx Xxxxxx, Xxxxx Xx, Xxx Xxxxxx 00000, to STATE
STREET BANK AND TRUST COMPANY, a Massachusetts trust company, as Trustee
hereunder (hereinafter called the "Trustee"), currently having its Corporate
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Trust Office at Two International Place, Corporate Trust Division, Xxxxxx,
Xxxxxxxxxxxxx 00000.
RECITALS
The Company deems it necessary to issue from time to time for its lawful
purposes senior debt securities (hereinafter called the "Securities") evidencing
its unsecured and unsubordinated indebtedness, and has duly authorized the
execution and delivery of this Indenture to provide for the issuance from time
to time of the Securities, unlimited as to aggregate principal amount, to bear
interest at the rates or formulas, to mature at such times and to have such
other provisions as shall be fixed therefor as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act (as
herein defined) and the rules and regulations of the Commission (as herein
defined) promulgated thereunder which are required to be part of this Indenture
and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders (as herein defined) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except as
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otherwise expressly provided or 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;
1
(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, and the terms "cash transaction" and "self-
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liquidating paper," as used in Section 311 of the Trust Indenture Act,
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shall have the meanings assigned to them in the rules of the Commission
adopted under the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP (as herein defined); 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.
"Act" has the meaning specified in Section 104(a).
--- --------------
"Additional Amounts" means any additional amounts which are required by a
------------------
Security, under circumstances specified therein, to be paid by the Company in
respect of certain taxes imposed on certain Holders and which are owing to such
Holders.
"Affiliate" when used with respect to any Person, means any other Person
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directly or indirectly controlling or controlled by or under direct or indirect
common control with such Person. For the purposes of this definition, "control"
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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.
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"Authenticating Agent" means any authenticating agent appointed by the
--------------------
Trustee pursuant to Section 611.
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"Authorized Newspaper" means a newspaper, printed 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 each place in connection with which the
term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
-------------- -----------
"Bearer Security" means a Security which is payable to bearer.
---------------
"Board of Directors" means the board of directors of the Company, the
------------------
executive committee or any other committee of such board duly authorized to act
for it in respect hereof.
2
"Board Resolution" means a copy of a resolution certified by the Secretary
----------------
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment or any other
------------
particular location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities pursuant to Section
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301, any day, other than a Saturday or Sunday, which is neither a legal holiday
---
nor a day on which banking institutions in such Place of Payment or particular
location are authorized or required by law, regulation or executive order to
close.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
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(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership, partnership interests
(whether general or limited) and (iv) any other interest or participation which
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or its
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successor.
"Commission" means the Securities and Exchange Commission, as from time to
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time constituted, created under the Exchange Act, or, if at any time after
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Depositary" has the meaning specified in Section 304(b).
----------------- --------------
"Common Shares" means the shares of common stock, par value $.01 per share,
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of the Company.
"Company" means the Person named as the "Company" in the first paragraph of
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this Indenture until a successor corporation has become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation, and any other obligor on the Securities.
"Company Certificate" means a certificate signed by the Chairman or a Co-
-------------------
Chairman, Managing Director, Senior Vice President or Vice President of the
Company and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Company Request" and "Company Order" mean, respectively, a written request
--------------- -------------
or order signed in the name of the Company by the Chairman or a Co-Chairman,
Managing Director, Senior Vice President or Vice President of the Company and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee.
3
"Conversion Event" means the cessation of use of (i) a Foreign Currency
----------------
(other than the ECU or other currency unit) both by the government of the
country which issued such currency and for the settlement of transactions by a
central bank or other public institutions of or within the international banking
community, (ii) the ECU both within the European Monetary System and for the
settlement of transactions by public institutions of or within the European
Communities or (iii) any currency unit (or composite currency) other than the
ECU for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee at which, at any
----------------------
particular time, its corporate trust business is principally administered, which
office at the date hereof is located at Two International Place, Corporate Trust
Division, Xxxxxx, Xxxxxxxxxxxxx 00000.
"corporation" includes corporations, associations, companies, real estate
-----------
investment trusts and business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
------
"covenant defeasance" has the meaning specified in Section 1403.
------------------- ------------
"Custodian" has the meaning specified in Section 501.
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"Defaulted Interest" has the meaning specified in Section 307.
------------------ -----------
"defeasance" has the meaning specified in Section 1402.
---------- ------------
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
------ -
currency of the United States of America as at the time is legal tender for the
payment of public and private debts.
"DTC" means The Depository Trust Company.
---
"ECU" means the European Currency Unit as defined and revised from time
---
to time by the Council of the European Communities.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
---------
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
--------------------
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established
------------------------
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Section 501.
---------------- -----------
4
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
------------
the rules and regulations promulgated thereunder by the Commission.
"Exchange Date" has the meaning specified in Section 304(b).
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"Foreign Currency" means any currency, currency unit or composite currency,
----------------
including, without limitation, the ECU issued by the government of one or more
countries other than the United States of America or by any recognized
confederation or association of such governments.
"GAAP" means generally accepted accounting principles as used in the United
----
States applied on a consistent basis as in effect from time to time, provided
--------
that, solely for purposes of calculating any financial covenants, "GAAP" shall
mean generally accepted accounting principles as used in the United States on
the date hereof, applied on a consistent basis.
"Government Obligations" means securities which are (i) direct obligations
----------------------
of the United States of America or the government which issued the Foreign
Currency in which the Securities of a particular series are payable, 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 or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and also
includes a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of interest
on or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
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by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Hedging Obligations" means, with respect to any Person, the greater of (a)
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the net obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, (ii) foreign
exchange contracts or currency swap agreements, and (iii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency values, or (b) zero.
"Holder" when used with respect to a Registered Security, means the Person
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in whose name such Registered Security is registered in the Security Register
and, when used with respect to a Bearer Security or any coupon, means the bearer
thereof.
"Indenture" means this instrument as originally executed or as it may from
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time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and includes
the terms of particular series of Securities established as contemplated by
Section 301; provided, however, that, if at any time more than one Person is
----------- -------- -------
5
acting as Trustee under this instrument, "Indenture" when used with respect to
any one or more series of Securities with respect to which such Person is acting
as Trustee, shall mean this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of those particular series of Securities with respect to which
such Person is acting as Trustee established as contemplated by Section 301,
-----------
exclusive, however, of any provisions or terms which relate solely to other
series of Securities with respect to which such Person is not acting as Trustee,
regardless of when such terms or provisions were adopted, and exclusive of any
provisions or terms adopted by means of one or more indentures supplemental
hereto executed and delivered after such Person had become such Trustee but to
which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that the
----------------
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest" when used with respect to an Original Issue Discount Security
--------
which by its terms bears interest only after Maturity, means interest payable
after Maturity, and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 1010, includes such Additional
------------
Amounts.
"Interest Payment Date" when used with respect to any Security, means the
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Stated Maturity of an installment of interest on such Security.
"Make-Whole Amount" means the amount, if any, in addition to principal
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which is required by a Security, under the terms and conditions specified
therein or as otherwise specified as contemplated by Section 301, to be paid by
-----------
the Company to the Holder thereof in connection with any optional redemption or
accelerated payment of such Security.
"mandatory sinking fund payment" has the meaning specified in Section 1201.
------------
"Maturity" when used with respect to any Security, means the date on which
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the principal of such Security or an installment of principal become due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment, repurchase or otherwise.
"Notice of Default" has the meaning specified in Section 501.
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"Opinion of Counsel" means a written opinion of counsel, who may be an
------------------
employee of or counsel for the Company or other counsel satisfactory to the
Trustee.
"optional sinking fund payment" has the meaning specified in Section 1201.
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6
"Original Issue Discount Security" means any Security which provides for an
--------------------------------
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
-----------
"Outstanding" when used with respect to Securities, means, as of the date
-----------
of determination, all Securities theretofore authenticated and delivered under
this Indenture, exclusive of:
(1) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder 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 is acting as its own Paying Agent) for the holders of such
Securities and any coupons appertaining thereto, provided that, if such
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Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or other provision therefor satisfactory
to the Trustee has been made;
(3) Securities, except solely to the extent provided in Section 401,
-----------
1402 or 1403, as applicable, with respect to which the Company has effected
---- ----
defeasance and/or covenant defeasance as provided in Article Four or
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Fourteen; and
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(4) 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 has 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;
provided, however, that in determining whether the Holders of the required
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principal amount of the Outstanding Securities have concurred in any request,
demand, authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders for quorum purposes, and for the purpose of
making the calculations required by Section 313 of the Trust Indenture Act, (i)
the principal amount of an Original Issue Discount Security which may be counted
in making such determination or calculation and which shall be deemed
Outstanding for such purpose shall be equal to the amount of principal thereof
which would be (or has been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
-----------
in a Foreign Currency which may be counted in making such determination or
calculation and which shall be deemed Outstanding for such purpose shall be
equal to the Dollar equivalent, determined pursuant to Section 301 as of the
-----------
date such Security is originally issued by the Company, of the principal amount
(or, in the case of an Original Issue Discount Security, the Dollar equivalent
as of such date of original issuance of the amount determined as provided in
clause (i) above) of such Security, (iii) the principal amount of any Indexed
Security which may be counted in making such determination or calculation and
7
which shall be deemed Outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such Indexed Security pursuant to Section
-------
301, and (iv) Securities owned by the Company or any other obligor on the
---
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not Outstanding, except that, for the purposes of
determining whether the Trustee is protected in making such calculation or in
relying on any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which the Trustee knows are 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 on 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 (and premium or Make-Whole Amount, if any, on) and interest and
Additional Amounts, if any, on any Securities or coupons on behalf of the
Company, or if no such Person is authorized, the Company.
"Payment Default" means any failure to pay any scheduled installment of
---------------
principal of, premium, if any, or interest on any indebtedness within the grace
period provided for such payment in the documentation governing such
indebtedness.
"Permitted Investments" means:
---------------------
(1) Government Obligations;
(2) Direct obligations and fully guaranteed certificates of
beneficial interest of the Export-Import Bank of the United States;
consolidated debt obligations and letter of credit-backed issues of the
Federal Home Loan Banks; participation certificates and senior debt
obligations of the Federal Home Loan Mortgage Corporation; debentures of
the Federal Housing Administration; mortgage-backed securities (except
stripped mortgage securities which are valued greater than par on the
portion of unpaid principal) and senior debt obligations of the Federal
National Mortgage Association; participation certificates of the General
Services Administration; guaranteed mortgage-backed securities and
guaranteed participation certificates and guaranteed pool certificates of
the Small Business Administration; debt obligations and letter of credit-
backed issues of the Student Loan Marketing Association; local authority
bonds of the U.S. Department of Housing and Urban Development; guaranteed
Title XI financing of the U.S. Maritime Administration; guaranteed transit
bonds of the Washington Metropolitan Area Transit Authority; or Resolution
Funding Corporation securities;
(3) Direct obligations of any state of the United States of America
or any subdivision or agency thereof whose unsecured, uninsured and
unguaranteed general obligation debt is rated, at the time of purchase, at
least as high as the rating then in effect on the Securities by Standard &
Poor's Rating Services, or any obligation fully and unconditionally
guaranteed by any state, subdivision or agency whose unsecured, uninsured
8
and unguaranteed general obligation debt is rated, at the time of purchase,
at least as high as the rating then in effect on the Securities by Standard
& Poor's Rating Services;
(4) Commercial paper (having original maturities of not more than 270
days) rated, at the time of purchase, "A-1+" by Standard & Poor's Rating
Services or "P-1" by Xxxxx'x Investors Services, Inc.;
(5) Federal funds, unsecured certificates of deposit, time deposits
or bankers acceptances (in each case having maturities of not more than 365
days) of any domestic bank (including the Trustee in its commercial
capacity), including a branch office of a foreign bank which branch office
is located in the United States, provided that written legal opinions in
--------
form acceptable to the Trustee are received to the effect that full and
timely payment of such deposit or similar obligation is enforceable against
the principal office or any branch of such bank, which, at the time of
purchase, has a rating of "A-1+" by Standard & Poor's Rating Services or
"P-1" by Xxxxx'x Investors Services, Inc.;
(6) Deposits of any bank or savings and loan association which has
combined capital, surplus and undivided profits of not less than
$3,000,000, provided that such deposits are continuously and fully insured
--------
by the Federal Deposit Insurance Corporation, including, without
limitation, an insured money market account of the Trustee;
(7) Investments in money-market funds rated in the highest rating
category by Standard & Poor's Rating Services or Xxxxx'x Investors
Services, Inc.; such funds may include those for which the Trustee or an
affiliate of the Trustee provides services for a fee, whether as investment
advisor, custodian, transfer agent, sponsor, distributor or otherwise;
(8) Shares of an open-end, diversified investment company which is
registered under the Investment Company Act of 1940, as amended, and which
(i) invests exclusively in permitted investments of the type set forth in
clauses (1) through (7) above; (ii) seeks to maintain a constant net asset
value per share in accordance with regulations of the Commission; and (iii)
has aggregate net assets of at least $50,000,000 on the date of purchase;
and
(9) Qualified GICs.
Any investment made in accordance with this Indenture may (i) be executed by the
Trustee or the Company with or through the Trustee or its affiliates and (ii) be
made in securities of any entity for which the Trustee or any of its affiliates
serves as offeror, distributor, advisor or other service provider.
"Person" means any individual, corporation, partnership, limited liability
------
company, joint venture, association, joint-stock company, real estate investment
trust, business trust, unincorporated organization or government or any agency
or political subdivision thereof.
9
"Place of Payment" when used with respect to the Securities of or within
----------------
any series, means the Corporate Trust Office of the Trustee and any place or
places which the Company may from time to time designate as the place or places
where the principal of (and premium or Make-Whole Amount, if any, on) and
interest and Additional Amounts, if any, on such Securities are payable as
specified as contemplated by Sections 301 and 1002 and presentations,
------------ ----
surrenders, notices and demands with respect to such Securities and this
Indenture may be made.
"Predecessor Security" when used with respect to any particular Security,
--------------------
means every previous Security evidencing all or a portion of the same debt as
evidenced by such 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.
"Qualified GIC" means an investment contract providing for the investment
-------------
of funds held by the Trustee and insuring a minimum or fixed rate of return on
investments of such funds, which contract shall:
(1) be an obligation of an insurance company or bank whose senior
long-term debt obligations are rated in one of the two highest rating
categories by both Xxxxx'x Investors Services, Inc. and Standard & Poor's
Rating Services;
(2) provide that the Trustee may exercise all of the rights under
such contract without the necessity of the taking of action by any other
person;
(3) provide that, if at any time the then current credit standing of
the obligor under such guaranteed investment contract has been lowered or
withdrawn by Xxxxx'x Investors Services, Inc. or Standard & Poor's Rating
Services, the Trustee may terminate such contract without penalty and be
entitled to the return of all funds previously invested thereunder,
together with accrued interest thereon at the interest rate provided under
such contract through the date of delivery of such funds to the Trustee;
(4) provide that interest shall be payable not less than annually;
(5) provide that the Trustee may withdraw funds invested without
penalty at any time and from time to time to be applied for the purposes
described therein;
(6) be accompanied by an enforceability opinion from counsel to the
obligor under such guaranteed investment contract in form and substance
satisfactory to the Trustee; and
(7) provide that the Trustee's interest thereunder shall be
transferable to any successor Trustee hereunder.
10
"Redemption Date" when used with respect to any Security to be
----------------
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" when used with respect to any Security to be
-----------------
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security which is registered in the
-------------------
Security Register.
"Regular Record Date" when used with respect to an installment of
-------------------
interest payable on any Interest Payment Date on the Registered Securities of or
within any series, means the date specified for that purpose as contemplated by
Section 301, whether or not a Business Day.
-----------
"Repayment Date" when used with respect to any Security to be repaid or
--------------
repurchased at the option of the Holder, means the date fixed for such repayment
or repurchase by or pursuant to this Indenture.
"Repayment Price" when used with respect to any Security to be repaid
----------------
or repurchased at the option of the Holder, means the price at which it is to be
repaid or repurchased by or pursuant to this Indenture.
"Required Filing Dates" has the meaning specified in Section 1008.
--------------------- ------------
"Responsible Officer" when used with respect to the Trustee, means any
-------------------
vice president (whether or not designated by numbers or words added before or
after said title), any assistant vice president, any assistant secretary or any
other officer or assistant officer of the Trustee in the corporate trust
department or similar group of the Trustee or, with respect to any particular
matter arising hereunder, any officer of the Trustee to whom such matter has
been assigned.
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations promulgated thereunder by the Commission.
"Security" has the meaning specified in the first recital of this
--------
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
-------- -------
there is more than one Person acting as Trustee under this Indenture,
"Securities" when used with respect to the Indenture with respect to which such
Person is acting as Trustee, shall have the meaning stated in the first recital
of this Indenture and shall more particularly mean Securities authenticated and
delivered under this Indenture, exclusive, however, of Securities of or within
any series with respect to which such Person is not acting as Trustee.
"Security Register" and "Security Registrar" have the respective
------------------ ------------------
meanings specified in Section 305.
"Significant Subsidiary" means a Subsidiary which otherwise meets the
----------------------
tests ascribed to the term in Regulation S-X promulgated by the Commission under
the Securities Act, except that the
11
tests therein shall be based on 20% of total assets or income instead of 10%,
unless the Company owns or controls, directly or indirectly, at least 75% of the
total voting power of such Subsidiary's shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof (such percentage to be calculated on a
fully diluted basis), in which case the tests shall be based on 10% of total
assets or income.
"Special Record Date" when used with respect to the payment of any
-------------------
Defaulted Interest on the Registered Securities of or within 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 or any Additional Amounts
with respect thereto, 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, or
such Additional Amounts are, due and payable.
"Subsidiary" means, with respect to any Person, (i) any corporation,
----------
association or other business entity of which more than 50% of the total equity
capital and more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person (or a combination thereof) and (ii) any partnership
(a) the sole general partner or the managing general partner of which is such
Person or a Subsidiary of such Person or (b) the only general partners of which
are such Person or one or more Subsidiaries of such Person (or any combination
thereof).
"Surviving Entity" has the meaning specified in Section 801.
---------------- -----------
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
-------------------
and as in force at the date as of which this Indenture was executed, except as
provided in Section 905.
-----------
"Trustee" means the Person named as the "Trustee" in the first
-------
paragraph of this Indenture until a successor Trustee has become such pursuant
to the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then acting as a Trustee hereunder; provided,
--------
however, that, if at any time there is more than one such Person, "Trustee" when
-------
used with respect to the Securities of or within any series, shall mean only the
Trustee with respect to the Securities of such series, and no Trustee of
Securities for any series shall be responsible for the acts or omissions of a
Trustee for any other series of Securities.
"United States" means, unless otherwise specified with respect to any
-------------
Securities pursuant to Xxxxxxx 000, xxx Xxxxxx Xxxxxx xx Xxxxxxx (including the
-----------
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
12
"United States person" means, unless otherwise specified with respect
--------------------
to any Securities pursuant to Section 301, an individual who is a citizen or
-----------
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the time
-----------------
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
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 a Company
Certificate stating that all conditions precedent, if any, provided for in this
Indenture (including any covenants, compliance with which constitute conditions
precedent) relating to the proposed action have been complied with and an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 1009) shall include:
------------
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation on which the statements or opinions
contained in such certificate or opinion are based ;
(3) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such condition or covenant has been complied with; and
(4) a statement as to whether or not, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case in
--------------------------------------
which 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
13
give an opinion as 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, on an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters on which his or her certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, on a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows that the certificate or
opinion or representations as to such matters are erroneous.
If 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.
---------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Holders in person or by agents 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 the
Outstanding Securities of such series may, alternatively, be embodied
in and evidenced by the record of such Holders voting in favor thereof,
either in person or by proxies duly appointed in writing, at any
meeting of such Holders duly called and held in accordance with the
provisions of Article Fifteen, or a combination of such instruments and
---------------
any such record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments or
record or both are delivered to the Trustee and, if expressly required
herein, to the Company. Such instrument or instrument and any such
record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
---
instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and conclusive in favor of
the Trustee and the Company and any agent of the Trustee or the
Company, if made in the manner provided in this Section. The record of
any meeting of Holders of Securities shall be proved in the manner
provided in Section 1506.
------------
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved 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
14
writing acknowledged to him or her the execution thereof or by any
other means acceptable to the Trustee. If such execution is by a signer
acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. 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 reasonable manner which the Trustee deems
sufficient.
(c) The ownership of Registered Securities shall be proved
by the Security Register.
(d) The ownership of Bearer Securities 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 is 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 (i) another
certificate or affidavit bearing a later date issued in respect of the
same Bearer Security is produced, (ii) such Bearer Security is produced
to the Trustee by some other Person, (iii) such Bearer Security is
surrendered in exchange for a Registered Security or (iv) such Bearer
Security is no longer Outstanding. The ownership of Bearer Securities
may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may, at its option,
in or pursuant to a Board Resolution, fix in advance a record date for
the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the
Company shall not be obligated to do so. Notwithstanding Section 316(c)
of the Trust Indenture Act, such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a
date not earlier than the date thirty (30) days prior to the first
solicitation of Holders generally in connection therewith and not later
than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date
shall be deemed to be Holders for the purpose of determining whether
Holders of the requisite proportion of Outstanding Securities have
authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such
record date; provided that no such authorization, agreement or consent
--------
by the Holders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not
later than eleven (11) months after the record date.
15
(f) 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, any Security Registrar,
any Paying Agent, any Authenticating Agent or the Company in reliance
thereon, whether or not notation of such action is made on such
Security.
SECTION 105. Notices 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 on, given or
furnished to, or filed with:
(1) the Trustee by any Holder or the Company shall be
sufficient for every purpose hereunder if in writing and mailed, first
class postage prepaid, to the Trustee addressed to it at the address of
its Corporate Trust Office specified in the first paragraph of this
Indenture, Attention: Corporate Trust Administration; or
(2) the Company by the Trustee or any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, 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 or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver. When this Indenture provides
-------------------------
for notice of any event to Holders of Registered Securities by the Company or
the Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at such Holder's address as it appears
in the Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. In any case in
which 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 shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. Any notice mailed to a
Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice.
If, by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it is impracticable to give such notice
by mail, then such notification to Holders of Registered Securities as is made
with the approval of the Trustee shall constitute a sufficient notification to
such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, when this Indenture
-----------
provides for notice to Holders of Bearer Securities of any event, such notices
shall be sufficiently given if published in an Authorized
16
Newspaper in The City of New York and in such other city or cities as may be
specified in such Securities and, if the Securities of such series are listed on
any securities exchange outside the United States, in any place at which such
Securities are listed on a securities exchange to the extent that such
securities exchange so requires, on a Business Day, such publication to be not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. Any such notice shall be deemed to have been
given on the date of such publication or, if published more than once, on the
date of the first such publication.
If, by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause, it is
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as is 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 any particular Holder of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
When 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 shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance on such waiver.
SECTION 107. 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 108. 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 109. Separability Clause. In case any provision in this
-------------------
Indenture or in any Security or any coupon 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 110. Benefits of Indenture. Nothing in this Indenture or in any
---------------------
Security or any coupon, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
17
SECTION 111. No Personal Liability. No recourse under or on any
---------------------
obligation, covenant or agreement contained in this Indenture or in any Security
or any coupon, or because of any indebtedness evidenced thereby, shall be had
against any promoter, as such or, against any past, present or future director,
officer, employee or shareholder, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the Holders
thereof and as part of the consideration for the issue of the Securities.
SECTION 112. Governing Law. THIS INDENTURE AND THE SECURITIES AND ANY
-------------
COUPONS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK. THIS INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST
INDENTURE ACT WHICH, BY THE PROVISIONS THEREOF, ARE DEEMED OR REQUIRED TO BE
PART OF THIS INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY SUCH
PROVISIONS. IF ANY PROVISION OF THIS INDENTURE LIMITS, QUALIFIES OR CONFLICTS
WITH THE DUTIES IMPOSED BY OPERATION OF SECTION 318(C) OF THE TRUST INDENTURE
ACT, THE IMPOSED DUTIES SHALL CONTROL.
SECTION 113. Legal Holidays. In any case in which any Interest Payment
--------------
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security is not a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or any coupon other than a provision in the Securities of any series
which specifically states that such provision shall apply in lieu hereof),
payment of the principal of (and premium or Make-Whole Amount, if any, on) or
interest or Additional Amounts, if any, on such Security 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, Redemption Date, Repayment Date or sinking fund
payment date, or at the Stated Maturity or Maturity; provided, however, that no
-------- -------
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repayment Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be.
SECTION 114. Counterparts. This Indenture may be executed in several
------------
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if any, of
-------------------
each series and the Bearer Securities, if any, and any coupons of each series,
shall be in substantially the forms as are established in or pursuant to one or
more indentures supplemental hereto or Board Resolutions, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
18
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
-----------
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication. Subject
-----------------------------------------------
to Section 611, the Trustee's certificate of authentication shall be in
-----------
substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY,
as Trustee
By:_________________________________________
Authorized Officer
SECTION 203. Securities Issuable in Global Form. If Securities of or
----------------------------------
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (8) of Section 301 and the provisions
----------- -----------
of Section 302, any such Security shall represent such of the Outstanding
-----------
Securities of such series as are specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities of such series from
time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased 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 the manner and in
accordance with instructions given by such Person or Persons specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 303
-----------
or 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 in accordance with 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 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.
-----------
19
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 Section 307, unless otherwise
-----------
specified as contemplated by Section 301, payment of principal of (and premium
-----------
or Make-Whole Amount, if any, on) and interest and Additional Amounts, if any,
on any Security in permanent global form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
-----------
the preceding paragraph, the Company, the Trustee and any agent of the Company
or the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such permanent
global Security in registered form, or (ii) in the case of a permanent global
Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate
------------------------------------
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to one or more Board Resolutions, or indentures
supplemental hereto, prior to the issuance of Securities of any series, any or
all of the following, as applicable (each of which (except for the matters set
forth in clauses (1), (2) and (15) below), if so provided, may be determined
from time to time by the Company with respect to unissued Securities of or
within the series when issued from time to time):
(1) the title of the Securities of or within the series
(which shall distinguish the Securities of such series from all other
series of Securities);
(2) any limit on the aggregate principal amount of the
Securities of or within 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 or within the series pursuant to Section
-------
304, 305, 306, 906, 1107 or 1305);
--- --- --- --- ---- ----
20
(3) the date or dates, or the method by which such date or
dates will be determined, on which the principal of the Securities of
or within the series shall be payable and the amount of principal
payable thereon;
(4) the rate or rates at which the Securities of or within
the series shall bear interest, if any, or the method by which such
rate or rates shall be determined, the date or dates from which such
interest shall accrue or the method by which such date or dates shall
be determined, the Interest Payment Dates on which such interest will
be payable and the Regular Record Date, if any, for the interest
payable on any Registered Security on any Interest Payment Date, or the
method by which such date shall be determined, and the basis on which
interest shall be calculated if other than a 360-day year comprised of
twelve (12) 30-day months;
(5) the place or places, if any, other than or in addition to
the Corporate Trust Office where the principal of (and premium or Make-
Whole Amount, if any, on) and interest and Additional Amounts, if any,
on Securities of or within the series shall be payable, any Registered
Securities of or within the series may be surrendered for registration
of transfer, exchange or conversion and notices or demands to or on the
Company in respect of the Securities of or within the series and this
Indenture may be served;
(6) the period or periods within which, the price or prices
(including the premium or Make-Whole Amount, if any) at which, the
currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which
Securities of or within the series may be redeemed, in whole or in
part, at the option of the Company, if the Company is to have the
option;
(7) the obligation, if any, of the Company to redeem, repay
or purchase Securities of or within the series pursuant to any sinking
fund or analogous provision or at the option of a Holder thereof, and
the period or periods within which or the date or dates on which, the
price or prices at which, the currency or currencies, currency unit or
units or composite currency or currencies in which, and other terms and
conditions upon which Securities of or within the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered Securities
of or within the series shall be issuable and, if other than the
denomination of $5,000, the denomination or denominations in which any
Bearer Securities of or within the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) the percentage of the principal amount at which
Securities will be issued and, if other than the principal amount
thereof, the portion of the principal amount of Securities
21
of or within the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 502, or, if
-----------
applicable, the portion of the principal amount of Securities which is
convertible in accordance with the provisions of this Indenture, or the
method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies
in which payment of the principal of (and premium or Make-Whole Amount,
if any, on) or interest or Additional Amounts, if any, on the
Securities of or within the series shall be payable or in which the
Securities of or within the series shall be denominated;
(12) whether the amount of payments of the principal of (and
premium or Make-Whole Amount, if any, on) or interest or Additional
Amounts, if any, on the Securities of or within the series may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or
more currencies, currency units, composite currencies, commodities,
equity indices or other indices), and the manner in which such amounts
shall be determined;
(13) whether the principal of (and premium or Make-Whole
Amount, if any, on) or interest or Additional Amounts, if any, on the
Securities of or within the series are to be payable, at the election
of the Company or a Holder thereof, in a currency or currencies,
currency unit or units or composite currency or currencies other than
that in which such Securities are denominated or stated to be payable,
the period or periods within which (including the Election Date), and
the terms and conditions upon which, such election may be made, and the
time and manner of, and identity of the exchange rate agent with
responsibility for, determining the exchange rate between the currency
or currencies, currency unit or units or composite currency or
currencies in which such Securities are denominated or stated to be
payable and the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are to be so
payable;
(14) provisions, if any, granting special rights to the
Holders of Securities of or within the series on the occurrence of such
events as may be specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to
Securities of or within the series, whether or not such Events of
Default or covenants are consistent with the Events of Default or
covenants set forth herein;
(16) whether Securities of or within the series are to be
issuable as Registered Securities, Bearer Securities (with or without
coupons) or both, any restrictions applicable to the offer, sale or
delivery of Bearer Securities and the terms upon which Bearer
Securities of or within the series may be exchanged for Registered
Securities of or within the series and vice versa (if permitted by
applicable laws and regulations), whether any Securities of or within
the series are to be issuable initially in temporary global form and
whether any Securities of or within the series are to be issuable in
permanent global form (with or without
22
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, and, if Registered
-----------
Securities of or within the series are to be issuable as a global
Security, the identity of the depositary for such series, and as of
which any Bearer Securities of or within the series and any temporary
global Security representing Outstanding Securities of or within the
series shall be dated if other than the date of original issuance of
the first Security of the series to be issued;
(17) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name such 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;
-----------
(18) the applicability, if any, of Sections 1402 and/or 1403
------------- ----
to the Securities of or within the series and any provisions in
modification of, in addition to or in lieu of any of the provisions of
Article Fourteen;
----------------
(19) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
(20) if the Securities of or within the series are to be
issued upon the exercise of debt warrants, the time, manner and place
for such Securities to be authenticated and delivered;
(21) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1010 on the Securities of
------------
or within the series to any Holder who is not a United States person
(including any modification to the definition of such term) in respect
of any tax, assessment or governmental charge and, if so, whether the
Company will have the option to redeem such Securities rather than pay
such Additional Amounts (and the terms of any such option);
(22) the obligation, if any, of the Company to permit the
conversion of the Securities of such series into Common Shares or other
securities of the Company, and the terms and conditions on which such
conversion shall be effected (including, without limitation, the
initial conversion price or rate, the conversion period, any adjustment
of the
23
applicable conversion price and any requirements relative to the
reservation of such shares for purposes of conversion; and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered or Bearer Securities issued in global form, as
to denomination and except as may otherwise be provided in or pursuant to such
Board Resolution or in any such indenture supplemental hereto. All Securities of
any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions or supplemental
indentures, a copy of an appropriate record of such action(s) shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order for authentication and
delivery of such Securities.
SECTION 302. Denominations. The Securities of each series shall be
-------------
issuable as Bearer Securities, as Registered Securities or in any combination
thereof, and in such denominations and amounts as are specified as contemplated
by Section 301. With respect to any series denominated in Dollars, in the
-----------
absence of any such provisions with respect to the Securities of any series, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in denominations of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating. The
----------------------------------------------
Securities and any coupons shall be executed on behalf of the Company by the
Chairman or a Co-Chairman, Managing Director, Senior Vice President, Vice
President or the Treasurer of the Company, under the Company's corporate seal
reproduced thereon, and attested by the Company's Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
and any coupons may be manual or facsimile signatures of the present or any
future such authorized officer and may be imprinted or otherwise reproduced on
the Securities and such coupons.
Any Securities or any 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
or any coupons.
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, executed by the Company, to the Trustee for authentication,
together with a Company Order for the authentication
24
and delivery of such Securities, and the Trustee shall authenticate and deliver
such Securities in accordance with the Company Order; provided, however, that,
-------- -------
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided, further,
-------- -------
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
-----------
its original issuance only if the Person entitled to received such Bearer
Security has furnished a certificate to Euroclear or CEDEL, as the case may be,
in the form set forth in Exhibit A-1 to this Indenture or such other certificate
-----------
as may be specified with respect to any series of Securities pursuant to Section
-------
301, dated no earlier than fifteen (15) days prior to the earlier of the date on
---
which such Bearer Security is delivered and the date on which any temporary
Security first becomes exchangeable for such Bearer Security in accordance with
the terms of such temporary Security and this Indenture.
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. If all of the Securities of any series
are not to be issued at one time and if the Board Resolution or supplemental
indenture establishing such series so permits, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities and
determining the terms of particular Securities of such series, such as the
interest rate or formula, maturity date, date of issuance and date from which
interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities and any
coupons appertaining thereto, the Trustee shall be entitled to receive, and
(subject to Section 315(a) through 315(d) of the Trust Indenture Act) shall be
fully protected in relying on:
(1) an Opinion of Counsel complying with Section 102 and
-----------
stating that:
(A) the form or forms of such Securities and any coupons
appertaining thereto have been, or will have been upon
compliance with such procedures as may be specified therein,
established in conformity with the provisions of this
Indenture;
(B) the terms of such Securities and any coupons
appertaining thereto have been, or will have been upon
compliance with such procedures as may be specified therein,
established in conformity with the provisions of this
Indenture; and
(C) such Securities, together with any coupons
appertaining thereto, when executed by the Company, completed
pursuant to such procedures as may be specified therein and
delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by
the Trustee in accordance with this Indenture and issued by
the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of
creditors' rights
25
generally and to general equitable principles and to such
other matters as may be specified therein; and
(2) a Company Certificate complying with Section 102 and
-----------
stating that all conditions precedent provided for in this Indenture
relating to the issuance of such Securities have been, or will have
been upon compliance with such procedures as may be specified therein,
complied with and that, to the best of the knowledge of the signers of
such certificate, no Event of Default with respect to such Securities
has occurred and is continuing.
The Trustee shall not be required to authenticate such Securities if the issue
of such Securities pursuant to this Indenture will affect the Trustee's own
rights, duties, obligations 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 preceding
-----------
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver a Company Order, an Opinion of Counsel or a
Company Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificate with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
-----------
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 duly executed by
the Trustee by manual signature of an authorized officer, and such certificate
on any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
has been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company delivers such Security to the Trustee for cancellation
as provided in Section 309 together with a written statement (which need not
-----------
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
-----------
stating that such Security has never been issued or sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
--------------------
(a) Pending the preparation of definitive Securities of any
series, the Company may execute, and upon a Company Order the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or
26
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 or
without coupons), and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution
of such Securities. In the case of Securities of any series, such
temporary Securities may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with Section 304(b) or as
--------------
otherwise provided in or pursuant to a Board Resolution), if temporary
Securities of any series are issued, the Company shall cause definitive
Securities of such 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 in a
Place of Payment for such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of
any series, together with any non-matured coupons appertaining thereto,
the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive
Securities of the same series of authorized denominations; provided,
--------
however, that no definitive Bearer Security shall be delivered in
-------
exchange for a temporary Registered Security; and provided, further,
-------- -------
that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set
forth in Section 303. Until so exchanged, the temporary Securities or
-----------
coupons appertaining thereto of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities or coupons appertaining thereto of such series.
(b) Unless otherwise provided as contemplated in Section 301,
-----------
this Section 304(b) shall govern the exchange of temporary Securities
--------------
issued in global form other than through the facilities of DTC. If any
such temporary Security is issued in global form, then 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 Euroclear and CEDEL.
----------
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 (the "Exchange Date"), the Company shall
-------------
deliver to the Trustee definitive Securities, in an 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 without
charge, and the Trustee shall authenticate and deliver, in the name of
Euroclear or CEDEL, as the case may be, in exchange for each portion of
such temporary global Security, an equal aggregate principal amount of
definitive Securities of or within the same series of authorized
denominations and of like tenor as the portion of such temporary global
Security
27
to be exchanged. 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 Common Depository; provided, however,
-------- ------
that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global
Security shall be accompanied by a certificate dated the Exchange Date
or a subsequent date and signed by Euroclear 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 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
-------
A-2 to this Indenture or in such other form as may be established
---
pursuant to Section 301; and provided, further, that definitive Bearer
Securities shall be delivered in exchange for a portion of a temporary
global Security only in compliance with the requirements of Section
-------
303.
---
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a
temporary global Security shall be exchanged for definitive Securities
of the same series and of like tenor following the Exchange Date when
the account holder instructs Euroclear or CEDEL, as the case may be, to
request such exchange on his behalf and delivers to Euroclear or CEDEL,
as the case may be, a certificate in the form set forth in Exhibit A-1
-----------
to this Indenture (or in such other form as may be established pursuant
to Section 301), dated no earlier than fifteen (15) days prior to the
-----------
Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent
appointed for such series of Securities and each Paying Agent. Unless
otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and
the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. 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 occurring prior to the applicable
Exchange Date shall be payable to Euroclear and CEDEL on such Interest
Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit A-2 to
-----------
this Indenture (or in such other forms as may be established pursuant
to Section 301), for credit without further interest on or after such
-----------
Interest Payment Date to the respective accounts of Persons who are the
beneficial owners of such temporary global Security on such Interest
Payment Date and who
28
have each delivered to Euroclear or CEDEL, as the case may be, a
certificate dated no earlier than fifteen (15) days prior to the
Interest Payment Date occurring prior to such Exchange Date in the form
set forth in Exhibit A-1 to this Indenture (or in such other forms as
-----------
may be established pursuant to Section 301). Notwithstanding anything
-----------
to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the
preceding two paragraphs of this Section 304(b) and of the third
--------------
paragraph of Section 303 of this Indenture and the interests of the
-----------
Persons who are the beneficial owners of the temporary global Security
with respect to which such certification was made will be exchanged for
definitive Securities of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs after
the Exchange Date, without further act or deed by such beneficial
owners. Except as otherwise provided in this paragraph, no payments of
principal or interest owing with respect to a beneficial interest in a
temporary global Security will be made unless and until such interest
in such temporary global Security has been exchanged for an interest in
a definitive Security. Any interest so received by Euroclear and CEDEL
and not paid as herein provided shall be returned to the Trustee prior
to the expiration of two (2) years after such Interest Payment Date in
order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange. The
---------------------------------------------------
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or agency of the Company in a Place of Payment a register for each
series of Securities (the registers maintained in such office or in any such
office or agency of the Company in a Place of Payment being herein sometimes
referred to collectively as the "Security Register") in which, subject to such
-----------------
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of Registered Securities.
The Security Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. The Trustee, at its
Corporate Trust Office, is hereby initially appointed "Security Registrar" for
------------------
the purpose of registering Registered Securities and transfers of Registered
Securities on such Security Register as herein provided. In the event that the
Trustee ceases to be Security Registrar, it shall have the right to examine the
Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
-----------
registration of transfer of any Registered Security of any series at any office
or agency of the Company 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, being a number not contemporaneously outstanding, and
containing identical terms and provisions.
Subject to the provisions of this Section 305, 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 denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities
29
which the Holder making the exchange is entitled to receive. Unless otherwise
specified with respect to any series of Securities as contemplated by Section
-------
301, Bearer Securities may not be issued in exchange for Registered Securities.
---
If (but only if) permitted as contemplated by Section 301, 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 appertaining thereto. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted 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 Bearer Security surrenders to any Paying Agent any
such missing coupon in respect of which such a payment has been made, such
Holder shall be entitled to receive the amount of payment; provided, however,
-------- -------
that, except as otherwise provided in Section 1002, interest represented by a
------------
coupon shall be payable only upon presentation and surrender of such coupons at
an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in a permitted exchange for a Registered Security of the same
series and like tenor after the close of business at such office or agency on
(i) any Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall 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 depositary for any permanent global
Security is DTC, then, unless the terms of such global Security expressly permit
such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only
to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for
such global Security selected and approved by the Company or to a nominee of
such successor to DTC. If at any time DTC notifies the Company that it is
unwilling or unable to continue as depositary for the applicable global Security
or Securities or if at any time DTC ceases to be a clearing agency registered
under the Exchange Act if so required by applicable law or regulation, the
Company shall appoint a successor depositary with respect to such global
Security or Securities. If (i) a successor depositary for such global
30
Security or Securities is not appointed by the Company within ninety (90) days
after the Company receives such notice or becomes aware of such unwillingness,
inability or ineligibility, (ii) an Event of Default has occurred and is
continuing and the beneficial owners representing a majority in principal amount
of the applicable series of Securities represented by such global Security or
Securities advise DTC to cease acting as depositary for such global Security or
Securities or (iii) the Company, in its sole discretion, determines at any time
that all Outstanding Securities (but not less than all) Securities of any series
issued or issuable in the form of one or more global Securities shall no longer
be represented by such global Security or Securities (provided, however, that
-------- -------
the Company may not make such determination during the forty (40)-day restricted
period provided by Regulation S under the Securities Act or during any other
similar period during which the Securities must be held in global form as may be
required by the Securities Act), then, upon surrender of the global Security or
Securities appropriately endorsed, the Company shall execute, and the Trustee
shall authenticate and deliver definitive Securities of like series, rank, tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of such global Security or Securities. If any beneficial owner
of an interest in a permanent global Security is otherwise entitled to exchange
such interest 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 and provided that any applicable notice provided in the permanent
global Security has been given, then without unnecessary delay but in any event
not earlier than the earliest date on which such interest may be so exchanged,
upon surrender of the global Security or Securities appropriately endorsed, the
Company shall execute, and the Trustee shall authenticate and deliver definitive
Securities in aggregate principal amount equal to the principal amount of such
beneficial owner's interest in such permanent global Security. On or after the
earliest date on which such interests may be so exchanged, such permanent global
Security shall be surrendered for exchange by DTC or such other depositary as is
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose; provided, however, that no such exchanges may
-------- -------
occur during a period beginning at the opening of business fifteen (15) days
before any selection of Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be among
those selected for redemption; 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. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date or (ii) any Special
Record Date and 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 the
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.
31
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar, 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 which may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
----------- --- ---- ----
The Company or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may be
among those selected for redemption during a period beginning at the opening of
business fifteen (15) days before selection of the Securities to be redeemed
under Section 1103 and ending at the close of business on (A) if such Securities
------------
are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption, and (B) if such Securities are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the day of the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except, in the case of
any Registered Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered Security of
such series and like tenor, provided that such Registered Security is
--------
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment at
the option of the Holder, except the portion, if any, of such Security not to be
so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If any
------------------------------------------------
mutilated Security or a Security with a mutilated coupon appertaining thereto is
surrendered to the Trustee or the Company, together with, in proper cases, such
security or indemnity as may be required by the Company or the Trustee to save
each of them or any of their agents harmless, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of
the same series and principal amount, containing identical terms and provisions
and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security.
If there is delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any of their agents harmless, then, in the absence of notice to the
Company or the Trustee that such Security or coupon has been acquired by a bona
fide purchaser, the Company shall execute, and upon Company Request 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 principal amount, containing identical
terms and
32
provisions and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, 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, 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, pay such Security or
coupon; provided, however, that payment of principal of (and premium or Make-
-------- -------
Whole Amount, if any, on) and interest and Additional Amounts, if any, on any
Bearer Securities shall, except as otherwise provided in Section 1002, be
------------
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 301, any interest on
-----------
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge which 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 and any coupons appertaining thereto
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and any coupons appertaining thereto or the destroyed, lost or stolen coupon are
at any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
such series and any coupons appertaining thereto 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. Except as
----------------------------------------------
otherwise specified with respect to a series of Securities in accordance with
the provisions of Section 301, 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 such Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 1002; provided, however, that each
------------ -------- -------
installment of interest on any Registered Security may at the Company's option
be paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 308, to the address of
-----------
such Person as it appears on the Security Register, or (ii) transfer to an
account maintained by the payee located inside the United States.
33
Unless otherwise provided as contemplated by Section 301 with respect
-----------
to the Securities of any series, payment of interest may be made, in the case of
a Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
-----------
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case
may be, with respect to that portion of such permanent global Security held for
its account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, 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 ("Defaulted Interest") shall
------------------
forthwith cease to be payable to the registered Holder thereof upon 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, as provided in paragraph
(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 (which shall not be
less than twenty (20) days after such notice is received by the
Trustee), and at the same time the Company shall deposit with the
Trustee an amount of money in the currency or currencies, currency unit
or units or composite currency or currencies in which the Securities of
such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) equal to the aggregate
-----------
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit on
or prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as provided in this paragraph. Thereupon, the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than fifteen (15) days and
not less than ten (10) days prior to the date of the proposed payment
and not less than ten (10)
34
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 such Holder's
address as it appears in the Security Register not less than ten (10)
days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company cause a
similar notice to be published at least once in an Authorized Newspaper
in each place of payment, but such publications shall not be a
condition precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the 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 paragraph (2)
below. In case a Bearer Security of any series is surrendered at the
office or agency in a Place of Payment for such series in exchange for
a Registered Security of such series after the close of business at
such office or agency on any Special Record Date and before the opening
of business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on such proposed
date of payment 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.
(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 listed, and on 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 paragraph, such manner of payment
is deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners. Prior to due presentment of a
---------------------
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 Security for the purpose
of receiving payment of principal of (and premium or Make-Whole Amount, if any,
on) and (subject to Sections 305 and 307) interest and Additional Amounts, if
------------ ---
any, on such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
35
Title to any Bearer Security and any coupons shall pass by delivery.
The Company, the Trustee and any agent of the Company or the Trustee may treat
the Holder of any Bearer Security and the Holder of any coupon as the absolute
owner of such Security or coupon for the purpose of receiving payment thereof or
on account thereof and for all other purposes whatsoever, whether or not 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.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global 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 any depositary, as a Holder, with respect to
such global Security or impair, as between such depositary and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons surrendered for
------------
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and any Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it.
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. If
the Company so acquires any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for
cancellation. 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. Canceled Securities and coupons held by the Trustee
shall be destroyed by the Trustee and the Trustee shall deliver a certificate of
such destruction to the Company unless the Company delivers a Company Order
which directs their return to it.
SECTION 310. Computation of Interest. Except as otherwise specified
-----------------------
as contemplated by Section 301 with respect to Securities of any series,
-----------
interest on the Securities of each series shall be computed on the basis of a
360-day year consisting of twelve (12) 30-day months.
36
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture
---------------------------------------
shall, upon Company Request, cease to be of further effect with respect to any
series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1010), and the Trustee, upon receipt of a
Company Order and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when:
(1) either:
(A) all Securities of such series theretofore
authenticated and delivered and any coupons appertaining
thereto (other than (i) coupons appertaining to Bearer
Securities surrendered for exchange for Registered Securities
and maturing after such exchange, whose surrender is not
required or has been waived as provided in Xxxxxxx 000, (xx)
-----------
Securities of such series and coupons appertaining thereto
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 of
------------
such series and coupons appertaining thereto for whose payment
money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section
-------
1003) have been delivered to the Trustee for cancellation; or
----
(B) all Securities of such series and, in the case of
clauses (i) and (ii) below, any coupons appertaining thereto
not theretofore delivered to the Trustee for cancellation:
(i) have become due and payable,
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are
to be called for redemption within one (1) 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 clause (i), (ii) or (iii)
above, has irrevocably deposited or caused to be deposited
with the Trustee funds in trust for the purpose,
37
in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of
such series are payable, and in an amount sufficient to pay
and discharge the entire indebtedness on such Securities and
such coupons not theretofore delivered to the Trustee for
cancellation, for the principal (and premium or Make-Whole
Amount, if any) and interest and Additional Amounts, if any,
to the date of such deposit (in the case of Securities which
have become due and payable) or 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 a Company
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
-----------
Section 611 and, if money has been deposited with and held by the Trustee
-----------
pursuant to subparagraph (B) of paragraph (1) 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 Funds. 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 premium or Make-Whole Amount, if any)
and interest and Additional Amounts, if any, for the payment of which such money
has been deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. Subject to any modifications, additions
-----------------
or deletions relating to any series of Securities as contemplated pursuant to
Section 301, "Event of Default," whenever used herein with respect to any
----------- ----------------
particular series of Securities, means any one of the following events (whatever
the reason for such Event of Default and whether or not it is voluntary or
involuntary or effected by operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest on or any
Additional Amounts payable in respect of any Security of or within such
series or of any coupon appertaining thereto,
38
when such interest, Additional Amounts or coupon becomes due and
payable, and continuance of such default for a period of thirty (30)
days;
(2) default in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of such series when due and
payable at its Maturity;
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of any Security of such series;
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to any Security
of such series (other than a covenant or warranty a default in the
performance of which or the breach of which is elsewhere specifically
provided for in this Section), and continuance of such default or
breach for a period of sixty (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 twenty-five percent
(25%) in principal amount of the Outstanding Securities of such series,
a written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
-----------------
hereunder;
(5) default under any bond, debenture, note or other evidence
of indebtedness of the Company or under any mortgage, indenture or
other instrument of the Company (including a default with respect to
Securities of any series other than such series) under which there may
be issued or by which there may be secured any indebtedness of the
Company (or by any Significant Subsidiary, the repayment of which the
Company has guaranteed or for which the Company is directly responsible
or liable as obligor or guarantor), whether such indebtedness now
exists or is hereafter created, which, after the termination of any
applicable grace or cure period, (a) constitutes a Payment Default or
(b) results in the acceleration of such indebtedness prior to its
express maturity and, in each case, the principal amount of any
indebtedness, together with the principal amount of any other such
indebtedness under which there has been a Payment Default or which has
been so accelerated, aggregates [$25,000,000] or more; provided that,
in calculating the aggregate principal amount of any such indebtedness,
the Hedging Obligations of any Person under which there has been a
Payment Default or which has been so accelerated shall not be netted
against any other Hedging Obligation of such Person, within a period of
ten (10) 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 ten percent (10%) in principal amount of the
Outstanding Securities of such series a written notice specifying such
default and requiring the Company to cause such indebtedness to be
discharged or cause such acceleration to be rescinded or annulled and
stating that such notice is a "Notice of Default" hereunder;
-----------------
(6) the entry by a court of competent jurisdiction of one or
more final judgments, orders or decrees against the Company or any
Significant Subsidiary of the Company in an aggregate amount (excluding
amounts covered by insurance) in excess of [$25,000,000] and
39
such judgments, orders or decrees remain undischarged, unstayed and
unsatisfied in an aggregate amount (excluding amounts covered by
insurance) in excess of [$25,000,000] for a period of sixty (60)
consecutive days;
(7) the Company or any Significant Subsidiary of the Company,
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against
it in an involuntary case,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors;
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary of the Company in an involuntary case,
(B) appoints a Custodian of the Company or any
Significant Subsidiary of the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company or any
Significant Subsidiary of the Company,
and the order or decree remains unstayed and in effect for ninety (90)
days; or
(9) any other Event of Default provided with respect to
Securities of such series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11, U.S. Code
----------- --------------
or any similar Federal or state law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
---------
official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an
--------------------------------------------------
Event of Default (other than an Event of Default set forth in Section 501(7) or
--------------
(8)) with respect to Securities of any series at the time Outstanding occurs and
---
is continuing, then and in every such case, unless the principal of all of the
Outstanding Securities of such series already has become due and payable, the
Trustee or the Holders of not less than twenty-five percent (25%) in principal
amount of the Outstanding Securities of such series may declare the principal
(or, if any Securities are Original Issue Discount Securities or Indexed
Securities, such portion of the principal as may be specified
40
in the terms thereof) of, and the Make-Whole Amount, if any, on, all the
Securities of such series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders), and upon
any such declaration such principal or specified portion thereof shall become
immediately due and payable. If an Event of Default set forth in Section 501(7)
--------------
or (8) occurs and is continuing with respect to the Securities of any series,
---
then in each such case, the principal of, and the Make-Whole Amount, if any, on,
all the Securities of such series shall be due and payable immediately, without
notice to the Company.
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
provided in this Article, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) The Company has paid or deposited with the Trustee a
sum sufficient to pay, in the currency, currency unit or composite
currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
-----------
series):
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all Outstanding
Securities of such series and any coupons appertaining
thereto;
(B) the principal of (and premium or Make-Whole
Amount, if any, on) any Outstanding Securities of such series
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates borne
by or provided for in such Securities;
(C) to the extent that payment of such interest is
lawful, interest on overdue installments of interest and any
Additional Amounts at the rate or rates borne by or provided
for 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 Securities of
such series, other than the nonpayment of the principal of (or premium
or Make-Whole Amount, if any, on) or interest or Additional Amounts, if
any, on Securities of such series which have 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
resulting therefrom.
41
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 installment of
interest or Additional Amounts, if any, on any Security of any series
or any coupon appertaining thereto when such interest or Additional
Amount becomes due and payable and such default continues for a period
of thirty (30) days, or
(2) default is made in the payment of the principal of (or
premium or Make-Whole Amount, if any, on) any Security of any series at
its Maturity,
then the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of the Securities of such series and any such coupons,
the whole amount then due and payable on such Securities and any such coupons
for principal (and premium or Make-Whole Amount, if any) and interest and
Additional Amounts, if any, with interest on any overdue principal (and premium
or Make-Whole Amount, if any) and, to the extent that payment of such interest
is legally enforceable, on any overdue installments of interest or Additional
Amounts, if any, at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount as is 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, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor on the Securities of such series 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 on the Securities of
such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any coupons appertaining thereto by such appropriate judicial proceedings as
the Trustee deems 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 the pendency
--------------------------------
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor on the Securities of such series or the
property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities of any series is then
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee has made any demand on the Company for the
payment of overdue principal, premium or Make- Whole Amount, if any, or interest
or Additional Amounts, if any) shall be entitled and empowered, by intervention
in such proceeding or otherwise:
42
(1) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series,
of principal (and premium or Make-Whole Amount, if any) and interest
and Additional Amounts, if any, owing and unpaid in respect of the
Securities of such series and to file such other papers or documents
and take such other action, including participating as a member of any
official creditors committee appointed in the matter, as it may deem
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(2) 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 of Securities of such series and any coupons appertaining thereto to
make such payments to the Trustee, and in the event that the Trustee consents to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee and any predecessor Trustee, their agents and counsel,
and any other amounts due the Trustee or any predecessor Trustee under Section
-------
606.
---
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities or Coupons. All rights of action and claims under this Indenture or
---------------------
any of the Securities or any 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 the 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 premium or Make- Whole Amount, if any) or
interest or Additional Amounts, if any, on 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:
43
(1) to the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
-----------
(2) to the payment of the amounts then due and unpaid on the
Securities and coupons for principal (and premium or Make-Whole Amount,
if any) and interest and Additional Amounts, if any, payable, in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the aggregate amounts due and payable on such Securities
and coupons for principal (and premium or Make-Whole Amount, if any)
and interest and Additional Amounts, if any, respectively; and
(3) to the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits. No Holder of any Security of any
-------------------
series or any coupon appertaining thereto shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of such series;
(2) the Holders of not less than twenty-five percent (25%) in
principal amount of the Outstanding Securities of such series 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 sixty (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 sixty (60)-day period by the
Holders of a majority in principal amount of the Outstanding Securities
of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture 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 or Make-Whole Amount, Interest and Additional Amounts. Notwithstanding
-------------------------------------------------------------
any other provision in this
44
Indenture, the Holder of any Security or coupon shall have the right which is
absolute and unconditional to receive payment of the principal of (and premium
or Make-Whole Amount, if any, on ) and (subject to Sections 305 and 307)
----------- ---
interest and Additional Amounts, if any, on such Security or payment of such
coupon on or after the respective due dates expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
or 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 the Company, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and 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 on 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 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 not less
--------------------------------
than a majority in 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 is not 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, and
45
(3) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders of
Securities of such series not joining therein (but the Trustee shall
have no obligation as to the determination of such undue prejudice).
SECTION 513. Waiver of Past Defaults. The Holders of at least a
-----------------------
majority in principal amount of the Outstanding Securities of any series may, on
behalf of the Holders of all the Securities of such series and any coupons
appertaining thereto, waive any past default hereunder with respect to such
series and its consequences, except a default:
(1) in the payment of the principal of (or premium or Make-
Whole Amount, if any, on) or interest or Additional Amounts, if any, on
any Security of such series or any coupons appertaining thereto, 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 thereby.
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 Event of Default or impair any right resulting therefrom.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The Company
---------------------------------------
covenants (to the extent which it may lawfully do so) that it shall not at any
time insist on, or plead, or in any manner whatsoever claim or take the benefit
or advantage of, any usury, 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 which it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this Indenture
---------------------
agree, and each Holder of any Security by such Holder's acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of any undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than ten percent (10%) in principal
amount of the Outstanding Securities, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium or Make-Whole
Amount, if any, on) or interest or Additional Amounts, if any, on any Security
on or
46
after the respective Stated Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within ninety (90) days after the
------------------
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall give to the Holders of the Securities of such series,
in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, notice of such default hereunder known to the Trustee, unless
such default has been cured or waived; provided, however, that, except in the
-------- -------
case of a default in the payment of the principal of (or premium or Make-Whole
Amount, if any, on) or interest or Additional Amounts, if any, on any Security
of such series, or in the payment of any sinking fund installment with respect
to the Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders
of the Securities and coupons of such series; and provided, further, that in the
-------- -------
case of any default or breach of the character specified in clause (4) of
Section 501 with respect to the Securities of such series and any coupons
-----------
appertaining thereto, no such notice to Holders shall be given until at least
sixty (60) days after the occurrence thereof. For the purposes 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 the Securities of such
series.
SECTION 602. Certain Rights of Trustee. Subject to the provisions of
-------------------------
Section 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee shall perform only such duties as are
expressly undertaken by it to perform under this Indenture;
(2) 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, coupon or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(3) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
(other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303, which shall be sufficiently evidenced as
-----------
provided therein) and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(4) whenever, in the administration of this Indenture, the
Trustee deems it desirable that a matter be proved or established prior
to taking, suffering or omitting any
47
action hereunder, the Trustee (unless other evidence is specifically
prescribed herein) may, in the absence of bad faith on its part, rely
on a Company Certificate;
(5) the Trustee may consult with counsel and the 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;
(6) 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 of Securities of any series or any
coupons appertaining thereto pursuant to this Indenture, unless such
Holders 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;
(7) 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, coupon or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee determines 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;
(8) 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;
(9) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred
on it by this Indenture;
(10) The Trustee shall not be deemed to have knowledge of any
event or fact upon the occurrence of which it may be required to take
action hereunder unless a Responsible Officer of the Trustee has actual
knowledge of the occurrence of such event or fact; and
(11) The Trustee shall not be required 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 has reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 603. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Company and neither the Trustee nor any Authenticating
48
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or any coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying Agent,
-------------------
Security Registrar, Authenticating Agent 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 310(b) and 311 of the Trust
Indenture Act, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar, Authenticating
Agent or such other agent.
SECTION 605. Money Held in Trust; Permitted Investments. 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, or investment of, any money received by it hereunder except as otherwise
agreed with and for the sole benefit of the Company.
Pending their use under this Indenture, moneys held by the Trustee
hereunder may be invested in Permitted Investments maturing or redeemable at the
option of the holder at or before the time when such moneys are expected to be
needed by the Trustee and shall be so invested pursuant to a Company Order if no
Event of Default known to the Trustee then exists under this Indenture and
otherwise at the discretion of the Trustee. Any investment pursuant to this
Section 605 shall be held by the Trustee as a part of the moneys held by the
-----------
Trustee hereunder, as applicable, and shall be sold or redeemed to the extent
necessary to make payments or transfers or anticipated payments from such
moneys.
The Trustee shall be entitled to rely on all written investment
instructions provided by the Company hereunder, and shall have no duty to
monitor the compliance thereof with the restrictions set forth herein. The
Trustee shall have no responsibility or liability for any depreciation in the
value of any investment or for any loss, direct or indirect, resulting from any
investment made in accordance with a Company Order. The Trustee shall be without
liability to the Company or any Holder or any other person in the event that any
investment made in accordance with a Company Order shall cause any person to
incur any liability or rebates or other monies payable pursuant to the Internal
Revenue Code of 1986, as amended.
Any interest realized on investments and any profit realized upon the
sale or other disposition thereof shall be credited to moneys held by the
Trustee hereunder and any loss shall be charged thereto.
SECTION 606. Compensation and Reimbursement. The Company agrees:
------------------------------
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
49
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by it in connection with its administration of the
trust hereunder (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except to the extent any
such expense, disbursement or advance may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor
Trustee for, and to hold it harmless against, any loss, liability or
expense, arising out of or in connection with the acceptance or
administration of the trust or trusts or the performance of its duties
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 except to the extent any such
loss, liability or expense may be attributable to its own negligence or
bad faith.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities on all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium or Make- Whole Amount, if
any, on) or interest or Additional Amounts, if any, on particular Securities or
any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Trustee Eligibility; Conflicting Interests. There shall at
------------------------------------------
all times be a Trustee hereunder which is eligible to act as Trustee under
Section 310(a)(1) of the Trust Indenture Act and has a combined capital and
surplus of at least [$50,000,000]. If such Trustee publishes reports of
condition at least annually, pursuant to law or the requirements of Federal,
State, Territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
Trustee shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. No obligor on the Securities
or Affiliate of any such obligor shall serve as Trustee on such Securities. If
at any time the Trustee ceases to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 609.
-----------
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee has
not been delivered to the Trustee within thirty (30) days after the
50
giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered
to the Trustee and the Company.
(d) If at any time:
(1) the Trustee fails to comply with the provisions
of Section 310(b) of the Trust Indenture Act after written
request therefor by the Company or any Holder of a Security
who has been a bona fide Holder of a Security for at least six
(6) months,
(2) the Trustee ceases to be eligible under Section
-------
607 and fails to resign after written request therefor by the
---
Company or any Holder of a Security who has been a bona fide
Holder of a Security for at least six (6) months, or
(3) the Trustee becomes incapable of acting or is
adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property is appointed or any public officer takes
charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board
Resolution, may remove the Trustee and appoint a successor Trustee with
respect to all Securities, or (ii) subject to Section 315(e) of the
Trust Indenture Act, any Holder of a Security who has been a bona fide
Holder of a Security for at least six (6) months may, on behalf of such
Holder and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee resigns, is removed or becomes incapable of
acting, or if a vacancy occurs in the office of Trustee for any cause
with respect to the Securities of one or more series, the Company, by
or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of such series (it
being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that
at any time there shall be only one Trustee with respect to the
Securities of any particular series). If, within one (1) year after
such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any
series is appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, 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
has been so appointed by
51
the Company or the Holders of Securities and accepted appointment in
the manner hereinafter provided, any Holder of a Security who has been
a bona fide Holder of a Security of such series for at least six (6)
months may, on behalf of such Holder and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to Securities of such series.
(f) 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 for notices to the Holders of
Securities 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.
SECTION 609. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee
shall execute, acknowledge and deliver to the Company and the retiring
Trustee an instrument accepting such appointment, and, thereupon, the
resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the
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,
subject nevertheless to its claim, if any, provided for in Section 606.
-----------
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto, pursuant to Article Nine,
------------
wherein each successor Trustee shall accept such appointment and which
(i) shall contain such provisions as are 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 such series to which the appointment of such
successor Trustee relates, (ii) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as are
necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of
such series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (iii) shall add to
or change any of the provisions of this Indenture as are necessary to
provide for or facilitate the administration of the trusts hereunder by
more than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees co-trustees
of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee;
52
and, upon the execution and delivery of such supplemental indenture,
the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of such 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 such series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such 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 (a) or (b) of this Section,
as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
---------------------------------------------------
Business. Any corporation into which the Trustee may be merged or converted or
--------
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall 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 or coupons 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 or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons have
not been authenticated by such predecessor Trustee, any such successor Trustee
may authenticate and deliver such Securities or coupons, in either its own name
or that of its predecessor Trustee, with the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when any
-----------------------------------
of the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption or
repayment thereof, 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. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the Company.
Whenever 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
53
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant to
Section 301, shall at all times be a bank or trust company or corporation
-----------
organized and doing business and in good standing under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than [$50,000,000] and subject to supervision or examination by
Federal or State or District of Columbia authorities. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or the
requirements of the aforesaid 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. In case at any
time an Authenticating Agent ceases 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
is a party, or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation is otherwise eligible under this
Section, without the execution or filing of any paper or further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent ceases to be eligible in accordance with the provisions of
this Section, the Trustee for such series may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment to all Holders of Securities of or within the series with respect to
which such Authenticating Agent will serve in the manner set forth in Section
-------
106. 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 herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's
54
certificate of authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY,
as Trustee
By:_______________________________,
as Authenticating Agent
By:_______________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. 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
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with Section 312 of the
Trust Indenture Act, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 312(b) of the Trust
Indenture Act.
SECTION 702. Reports by Trustee. Within sixty (60) days after [February
------------------
1] of each year commencing with the first [February 1] after the first issuance
of Securities pursuant to this Indenture, the Trustee shall transmit by mail to
all Holders of Securities as provided in Section 313(c) of the Trust Indenture
Act a brief report dated as of such [February 1] if required by Section 313(a)
of the Trust Indenture Act.
SECTION 703. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company shall furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than fifteen (15) days after the
Regular Record Date for interest for each series of Securities, a list,
in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Registered Securities of such series as of
such Regular Record Date, or if there is no Regular Record Date for
interest for such
55
series of Securities, semi-annually, on such dates as are set forth in
the Board Resolution or indenture supplemental hereto authorizing such
series, and
(b) at such other times as the Trustee may request in writing,
within thirty (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
fifteen (15) days prior to the time such list is furnished;
provided, however, that, so long as the Trustee is the Security Registrar, no
-------- --------
such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases
-----------------------------------------------------
and Conveyances. The Company will not consolidate or merge with or into (whether
or not the Company is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its properties
or assets in one or more related transactions, to another Person unless (i) the
surviving Person or the Person formed by or surviving such consolidation or
merger (if other than the Company) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made (the "Surviving
---------
Entity") is a corporation organized or existing under the laws of the United
------
States, any state thereof or the District of Columbia; (ii) the Surviving Entity
assumes all the obligations, including the due and punctual payment of the
principal of (and premium or Make-Whole Amount, if any, on) and interest and
Additional Amounts, if any, on all Securities, according to their tenor, and the
due punctual performance and observance of all covenants and conditions, of the
Company under the Securities and the Indenture pursuant to a supplemental
Indenture in form reasonably satisfactory to the Trustee; and (iii) immediately
before and after giving effect to such transaction and treating any indebtedness
which becomes an obligation of the Company as a result of such transaction as
having been incurred by the Company at the time of the transaction, no Event of
Default and no event which, after notice or the lapse of time or both, would
become an Event of Default shall have occurred and be continuing.
SECTION 802. Rights and Duties of Successor Entity. In case of any such
-------------------------------------
consolidation, merger, sale, lease or conveyance and upon any such assumption by
the successor entity, such successor entity shall succeed to and be substituted
for the Company, with the same effect as if it had been named herein as the
party of the first part, and the predecessor entity, except in the event of a
lease, shall be relieved of any further obligation under this Indenture and the
Securities. Such successor entity thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore have not been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
entity, instead of the Company, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously have been signed and delivered by
the officers of the Company to the Trustee for authentication, and any
Securities which such successor entity thereafter shall cause to be signed and
delivered to the
56
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. Company Certificate and Opinion of Counsel. Any
------------------------------------------
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
-----------
also subject to the condition that the Trustee receive a Company Certificate and
an Opinion of Counsel to the effect that any such consolidation, merger, sale,
lease or conveyance, and the assumption by any successor entity, complies with
the provisions of this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or coupons, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company contained herein and in the Securities;
(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 on the Company;
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however,
-------- -------
that, in respect of any such additional Events of Default, such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of
57
the Holders of a majority in aggregate principal amount of such series
of Securities to which such additional Events of Default apply to waive
such default;
(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
the principal of (or premium or Make-Whole Amount, if any, on) or
interest or Additional Amounts, if any, 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 coupons appertaining thereto in any
material respect;
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
--------
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision;
(6) to secure the Securities;
(7) to establish the form or terms of Securities of any series
and any coupons appertaining thereto as permitted by Sections 201 and
------------
301, including the provisions and procedures, if applicable, for the
---
conversion of such Securities into Common Shares or other securities of
the Company;
(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 are necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee;
(9) to cure any ambiguity, to correct or supplement any
provision hereof which may be defective or inconsistent with any other
provision hereof, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture or to make any other
changes, provided that, in each case, such provisions shall not
--------
adversely affect the interests of the Holders of Securities of any
series or any coupons appertaining thereto in any material respect;
(10) to close this Indenture with respect to the
authentication and delivery of additional series of Securities or to
qualify, or maintain qualification of, this Indenture under the Trust
Indenture Act; or
(11) to supplement any of the provisions of this Indenture to
such extent as are necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402
------------ -----
and 1403; provided that, in each case, any such action shall
---- --------
58
not adversely affect the interests of the Holders of Securities of such
series and any coupons appertaining thereto or any other series of
Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders. With the
-----------------------------------------------
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of such
Holders delivered to the Company and the Trustee, the Company (when authorized
by or pursuant to a Board Resolution) and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and 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 premium
or Make-Whole Amount, if any, on) or any installment of principal of or
interest on, any Security; or reduce the principal amount thereof or
the rate or amount of interest thereon or any Additional Amounts
payable in respect thereof, or any premium or Make-Whole Amount payable
upon the redemption thereof, or change any obligation of the Company to
pay Additional Amounts pursuant to Section 1010 (except as contemplated
------------
by clause (1) of Section 801 and permitted by clause (1) of Section
----------- -------
901), or reduce the amount of the principal of an Original Issue
---
Discount Security or Make-Whole Amount, if any, which would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the amount thereof provable in bankruptcy
-----------
pursuant to Section 504; or adversely affect any right of repayment at
-----------
the option of the Holder of any Security, or change any Place of
Payment where, or the currency or currencies, currency unit or units or
composite currency or currencies in which, the principal of any
Security or any premium or Make-Whole Amount or any Additional Amounts
payable in respect thereof or the interest thereon is payable; or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on or after the
Redemption Date or the Repayment Date, as the case may be);
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of the Holders of
which is required for any such supplemental indenture, or the consent
of the Holders of which is required for any waiver with respect to such
series (or 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 1504 for quorum or
voting; or
(3) modify any of the provisions of this Section, Section 513
-----------
or Section 1011, except to increase the required percentage to effect
------------
such action 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.
59
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act approves the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included 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.
SECTION 903. Execution of Supplemental Indentures. In executing, or
-------------------------------------
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying on, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. 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 coupon 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 so determines, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures. Promptly after the
---------------------------------
execution by the Company and the Trustee of any supplemental indenture pursuant
to the provisions of Section 902, the Company shall give notice thereof to the
-----------
Holders of each Outstanding Security affected, in the manner provided for in
Section 106, setting forth in general terms the substance of such supplemental
-----------
indenture.
60
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount,
---------------------------------------------------
Interest and Additional Amounts. The Company covenants and agrees for the
-------------------------------
benefit of the Holders of each series of Securities that it shall duly and
punctually pay to the Trustee prior to 12:00 noon on the applicable date of
payment the principal of (and premium or Make-Whole Amount, if any, on) and
interest and Additional Amounts, if any, on the Securities of such series in
accordance with the terms of such series of 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 and
-----------
Additional Amounts, if any, on Bearer Securities on or before Maturity, other
than Additional Amounts, if any, payable as provided in Section 1010 in respect
------------
of principal of (or premium or Make-Whole Amount, if any, on) such a Security,
shall be payable only upon presentation and surrender of the several coupons for
such interest installments as are evidenced thereby as they severally mature.
Unless otherwise specified with respect to Securities of any series pursuant to
Section 301, at the option of the Company, all payments of principal may be paid
-----------
by check to the registered Holder of the Registered Security or other person
entitled thereto against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If Securities of a
-------------------------------
series are issuable only as Registered Securities, the Company shall maintain in
each Place of Payment for any series of Securities an office or agency where
Securities of such series may be presented or surrendered for payment, where
Securities of such series may be surrendered for registration of transfer or
exchange and where notices and demands to or on the Company in respect of the
Securities of such series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Company shall maintain: (i) in the
city of [Boston, Massachusetts], an office or agency where any Registered
Securities of such series may be presented or surrendered for payment, where any
Registered Securities of such series may be surrendered for exchange, where
notices and demands to or on the Company in respect of the Securities of such
series and this Indenture may be served and where Bearer Securities of such
series and any coupons appertaining thereto may be presented or surrendered for
payment in the circumstances described in the following paragraph (and not
otherwise); (ii) subject to any laws or regulations applicable thereto, in a
Place of Payment for such series which is located outside the United States, an
office or agency where Securities of such series and any coupons appertaining
thereto may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Securities of such series pursuant to Section
-------
1010); provided, however, that if the Securities of such series are listed on
---- -------- -------
the Luxembourg Stock Exchange, The International Stock Exchange or any other
stock exchange located outside the United States and such stock exchange so
requires, the Company shall maintain a Paying Agent for the Securities of such
series in Luxembourg, London or any other required city located outside the
United States, as the case may be, so long as the Securities of such series are
listed on such exchange; and (iii) subject to any laws or regulations applicable
thereto, in a Place of Payment for such series located outside the United States
an office or agency where any Securities of such series may be surrendered for
registration of transfer, where Securities of such series may be surrendered
61
for exchange and where notices and demands to or on the Company in respect of
the Securities of such series and this Indenture may be served. The Company
shall give prompt written notice to the Trustee of the location, and any change
in the location, of each such office or agency. If at any time the Company fails
to maintain any such required office or agency or fails to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, except that
Bearer Securities of such series and the related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Bearer Securities of such series pursuant to Section 1010) at the offices
------------
specified in the Security, in London, England, and the Company hereby appoints
the same as its agent to receive all such presentations, surrenders, notices and
demands, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of the principal of (or premium or Make-Whole Amount, if
-----------
any, on) or interest or Additional Amounts, if any, 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 payable in Dollars, payment of the principal of
(and premium and Make- Whole Amount, if any, on) and interest and Additional
Amounts, if any, on any Bearer Security shall be made at the office of the
Company's Paying Agent in the city of [Boston, Massachusetts] if (but only if)
payment in Dollars of the full amount of such principal, premium, Make-Whole
Amount, 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.
The Company may from time to time designate one or more other offices or
agencies where the Securities of one or more series and any coupons appertaining
thereto may be presented or surrendered for any or all of such purposes, and may
from time to time rescind such designations; provided, however, that no such
-------- -------
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in accordance with the requirements
set forth above for Securities of any series for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
Unless otherwise specified with respect to any Securities pursuant to Section
-------
301, the Company hereby designates as a Place of Payment for each series of
---
Securities the office or agency of the Company in the city of [Boston,
Massachusetts], and initially appoints the Trustee at its Corporate Trust Office
as Paying Agent in such city and as its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
-----------
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the Company
shall maintain with respect to each such series of Securities, or as so
required, at least one exchange rate agent.
62
SECTION 1003. Money for Securities Payments to Be Held in Trust. If
-------------------------------------------------
the Company at any time acts as its own Paying Agent with respect to any series
of any Securities and any coupons appertaining thereto, it shall, on or before
each due date of the principal of (and premium or Make- Whole Amount, if any,
on) or interest or Additional Amounts, if any, on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
-----------
such series) sufficient to pay the principal (and premium or Make-Whole Amount,
if any) or interest or Additional Amounts, if any, so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided,
and shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company has one or more Paying Agents for any series of
Securities and any coupons appertaining thereto, it shall, on or before each due
date of the principal of (and premium or Make-Whole Amount, if any, on) or
interest or Additional Amounts, if any, on any Securities of such series,
deposit with a Paying Agent a sum (in the currency or currencies, currency unit
or units or composite currency or currencies described in the preceding
paragraph) sufficient to pay the principal (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal,
premium, Make-Whole Amount, interest or Additional Amounts and (unless such
Paying Agent is the Trustee) the Company shall promptly notify the Trustee of
its action or failure so to act.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent shall:
(1) hold all sums held by it for the payment of principal of
(and premium or Make-Whole Amount, if any, on) or interest or
Additional Amounts, if any, on Securities in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor on the Securities) in the making of any such payment
of principal (and premium or Make-Whole Amount, if any) or interest or
Additional Amounts, if any; and
(3) at any time during the continuance of any such default, on
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
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
on the same trusts as those on which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
63
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium or Make-Whole Amount, if
any, on) or interest or Additional Amounts, if any, on any Security of any
series and remaining unclaimed for two (2) years after such principal (and
premium or Make-Whole Amount, if any) interest or Additional Amounts, if any,
has become due and payable shall be paid to the Company upon Company Request or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment of the principal of (and premium or Make- Whole
Amount, if any, on) and interest and any Additional Amounts, if any, on any
Security of such series, without interest thereon, 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, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than thirty (30) days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Existence. Subject to Article Eight, the Company shall do
--------- -------------
or cause to be done all things necessary to preserve and keep in full force and
effect the existence, rights (charter and statutory) and franchises of the
Company and its Subsidiaries; provided, however, that the Company shall not be
-------- -------
required to preserve any right or franchise if the Board of Directors determines
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries as a whole and that the loss
thereof is not disadvantageous in any material respect to the Holders of
Securities of any series.
SECTION 1005. Maintenance of Properties. The Company shall cause all of
-------------------------
its properties used or useful in the conduct of its business or the business of
any Subsidiary to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and shall cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section shall prevent the
-------- -------
Company or any Subsidiary from selling or otherwise disposing for value its
properties in the ordinary course of its business.
SECTION 1006. Insurance. The Company shall, and shall cause each of its
---------
Subsidiaries to, keep all of its insurable properties insured against loss or
damage at least equal to their then full insurable value with financially sound
and reputable insurance companies.
SECTION 1007. Payment of Taxes and Other Claims. The Company shall pay
---------------------------------
or discharge or cause to be paid or discharged, before the same become
delinquent, (i) all taxes, assessments and governmental charges levied or
imposed on the Company or any Subsidiary or on the income, profits or property
of the Company or any Subsidiary, and (ii) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien on the
property of the Company or any Subsidiary; provided, however, that the Company
-------- -------
shall not be required to pay or discharge or cause
64
to be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Reports.
-------
(1) So long as any Securities of any series are outstanding,
the Company will furnish to Holders of Securities of such series,
within forty-five (45) days of the filing thereof with the Commission
copies of the annual reports on Form 10-K, within twenty (20) days of
the filing thereof with the Commission copies of the quarterly reports
on Form 10-Q and within fifteen (15) days after the filing thereof with
the Commission copies of the other information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) that the Company is
required to file with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act, provided that the Company's obligation to furnish
such reports will be deemed satisfied to the extent the Company
complies with Section 1008(2) and (4). All obligors on the Securities
--------------- ---
shall comply with the provisions of Section 314(a) of the Trust
Indenture Act. Notwithstanding that the Company may not be subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act
or otherwise report on an annual and quarterly basis on forms provided
for such annual and quarterly reporting pursuant to rules and
regulations promulgated by the Commission, the Company shall file with
the Commission and provide to the Trustee (i) within one hundred thirty
five (135) days after the end of each fiscal year, annual reports on
Form 10-K (or any successor or comparable form) containing the
information required to be contained therein (or required in such
successor or comparable form), including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and a report
thereon by the Company's certified public accountants; (ii) within
sixty-five (65) days after the end of each of the first three (3)
fiscal quarters of each fiscal year, reports on Form 10-Q (or any
successor or comparable form) containing the information required to be
contained therein (or required in any successor or comparable form),
including a "Manage ment's Discussion and Analysis of Financial
Condition and Results of Operations"; and (iii) promptly from time to
time after the occurrence of an event required to be therein reported,
such other reports on Form 8-K (or any successor or comparable form)
containing the information required to be contained therein (or
required in any successor or comparable form); provided, however, that
the Company shall not be in default of the provisions of this Section
-------
1008(1) for any failure to file reports with the Commission solely by
-------
the refusal of the Commission to accept the same for filing. Each of
the financial statements contained in such reports shall be prepared in
accordance with GAAP.
(2) The Company's obligations under this Section 1008 will be
------------
deemed satisfied to the extent the Company provides the Trustee with a
sufficient number of annual reports, information, documents and reports
for the Trustee to provide or make available such annual reports,
information, documents and reports to the Holders. The Trustee, at the
Company's expense and written direction, shall promptly mail copies of
all such annual reports, information, documents and other reports
provided to the Trustee pursuant to Section 1008(1) hereof to the
---------------
Holders at their addresses appearing in the Security Register.
65
(3) Whether or not required by the rules and regulations of
the Commission, the Company shall file a copy of all such information
and reports with the Commission for public availability and make such
information available to securities analysts and prospective investors
upon request.
(4) The Company shall provide the Trustee with a sufficient
number of copies of all reports and other documents and information
which the Trustee may be required to deliver to the Holders under this
Section 1008.
------------
(5) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein,
including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates) .
SECTION 1009. Statement as to Compliance. The Company shall deliver to
--------------------------
the Trustee, within one hundred thirty-five (135) days after the end of each
fiscal year, 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
verified in the case of conditions precedent compliance with which is subject to
verification by accountants by the certificate or opinion of an accountant and,
in the event of any noncompliance, specifying such noncompliance and the nature
and status thereof. For purposes of this Section 1009, such compliance shall be
------------
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
SECTION 1010. Additional Amounts. If any Securities of a series provide
------------------
for the payment of Additional Amounts, the Company covenants and agrees for the
benefit of the Holders of Securities of such series that it shall pay to the
Holder of any Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 301. Whenever
-----------
in this Indenture there is mentioned, in any context except in the case of
clause (1) of Section 502, the payment of the principal of or of any premium,
-----------
Make-Whole Amount or interest on, or in respect of, any Security of any series
or payment of any 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 by the terms of such series
established pursuant to Section 301 to the extent that, in such context,
-----------
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof in which such express mention is
not made.
Except as otherwise specified as contemplated by Section 301, if the
-----------
Securities of a series provide for the payment of Additional Amounts, at least
ten (10) days prior to the first Interest Payment Date with respect to
Securities of such series (or if the Securities of such 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 ten (10) days prior to each date of payment
of principal and any premium or
66
Make-Whole Amount or interest, if there has been any change with respect to the
matters set forth in the below-mentioned Company Certificate, the Company shall
furnish the Trustee and the principal Paying Agent or Paying Agents, if other
than the Trustee, with a Company Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or Make-Whole Amount or interest on the Securities of such series shall
be made to Holders of Securities of such series or any coupons appertaining
thereto who are not United States persons without withholding for or on account
of any tax, assessment or other governmental charge described in the Securities
of or within the series. If any such withholding is required, then such Company
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities of such series or any coupons
appertaining thereto and the Company shall pay to the Trustee or such Paying
Agent the Additional Amounts required by the terms of such Securities. In the
event that the Trustee or any Paying Agent, as the case may be, shall not so
receive the above-mentioned certificate, then the Trustee or such Paying Agent
shall be entitled (i) to assume that no such withholding or deduction is
required with respect to any payment of principal or interest with respect to
any Securities of such series or any coupons appertaining thereto until it has
received a certificate advising otherwise, and (ii) to make all payments of
principal and interest with respect to the Securities of such series or any
coupons appertaining thereto without withholding or deductions until otherwise
advised. 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 or in reliance on
any Company Certificate furnished pursuant to this Section or in reliance on the
Company's not furnishing such a Company Certificate.
SECTION 1011. Waiver of Certain Covenants. The Company may omit in any
---------------------------
particular instance to comply with any term, provision or condition set forth in
Sections 1004 to 1008, inclusive, and with any other term, provision or
------------- ----
condition with respect to the Securities of any series specified in accordance
with Section 301 (except any such term, provision or condition which could not
-----------
be amended without the consent of all Holders of Securities of such series
pursuant to Section 902), if before or after the time for such compliance the
-----------
Holders of at least a majority in principal amount of all outstanding Securities
of such series, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
SECTION 1012. Seniority of Securities. The Company covenants and agrees
-----------------------
that the indebtedness represented by the Securities is hereby expressly made
senior to any indebtedness represented by any securities now outstanding or ever
issued or to be issued pursuant to the Indenture dated ___________, 1998 between
the Company and State Street Bank and Trust Company, as trustee, in respect of
subordinated debt securities or any amendments or supplements thereto.
67
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 or pursuant to a
Board Resolution. In case of any redemption at the election of the Company of
less than all of the Securities of any series, the Company shall, at least
thirty (30) days prior to the giving of the notice of redemption in Section 1104
------------
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with a Company Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If
-------------------------------------------------
less than all the Securities of any series issued on the same day with the same
terms are to be redeemed, the particular Securities to be redeemed shall be
selected not more than sixty (60) days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series issued on such date with
the same terms not previously called for redemption, by such method as the
Trustee deems fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of such series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of such series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security 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, not less than thirty (30) days nor more
-----------
than sixty (60) days prior to the Redemption Date, unless a shorter period is
specified by the terms of such series established pursuant to Section 301, to
-----------
each Holder of Securities to be redeemed, but failure to give such notice in the
manner herein provided to the Holder of any Security designated for redemption
as a whole
68
or in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such Security or
portion thereof.
Any notice which is mailed to the Holders of Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, accrued interest to the Redemption
Date payable as provided in Section 1106, if any, and Additional
------------
Amounts, if any;
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, on surrender of such Security, the holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed;
(5) that on the Redemption Date, the Redemption Price and
accrued interest to the Redemption Date payable as provided in Section
-------
1106, if any, will become due and payable on each such Security, or the
----
portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after such date;
(6) the Place or Places of Payment 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 accrued interest,
if any;
(7) that the redemption is for a sinking fund, if such is the
case;
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons appertaining thereto maturing subsequent to
the date fixed for redemption or the amount of any such missing coupon
or coupons will be deducted from the Redemption Price, unless security
or indemnity satisfactory to the Company, the Trustee for such series
and any Paying Agent is furnished;
(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be
69
exchanged for Registered Securities not subject to the redemption on
this Redemption Date pursuant to Section 305 or otherwise, the last
-----------
date, as determined by the Company, on which such exchanges may be
made; and
(10) the CUSIP number of such Security, if any, provided that
--------
neither the Company nor the Trustee shall have any responsibility for
any such CUSIP number.
Notice of redemption of Securities to be redeemed 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. At least one (1) Business
---------------------------
Day 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, which
it may not do in the case of a sinking fund payment under Article Twelve,
--------------
segregate and hold in trust as provided in Section 1003) an amount of money in
------------
the currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
-----------
sufficient to pay on the Redemption Date the Redemption Price of, and (except if
the Redemption Date is an Interest Payment Date) accrued interest on, all the
Securities or portions thereof which are to be redeemed on such date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
-------------------------------------
redemption having been given as provided above, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
-----------
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company defaults in
the payment of the Redemption Price and accrued interest) such Securities shall,
if the same were interest-bearing, 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 such notice, together with any coupons
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest, if
any, 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, installments of interest on
-------- -------
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
-------
307.
---
If any Bearer Security surrendered for redemption is not accompanied by
all coupons appertaining thereto 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
70
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 surrenders to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction has been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by a coupon 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 such coupon.
-----------
If any Security called for redemption is not so paid upon surrender
thereof for redemption, the principal (and premium or Make-Whole Amount, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne by
the Security.
SECTION 1107. Securities Redeemed in Part. Any Security which is to be
---------------------------
redeemed only in part (pursuant to the provisions of this Article or of Article
-------
Twelve) shall be surrendered at a Place of Payment therefor (with, if the
------
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing and
accompanied by appropriate evidence of genuineness and authority) and the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge a new Security or Securities of
the same series, of any authorized denomination 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 such Securities of any series is herein referred to as an "optional
--------
sinking fund payment." If provided for by the terms of any Securities of any
--------------------
series, the cash amount of any mandatory 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 may, in satisfaction of all or any part of any mandatory sinking
fund with respect to the Securities of a series, (i) deliver Outstanding
Securities of such series (other than any previously called for redemption),
together in the case of any Bearer Securities of such series with all unmatured
coupons
71
appertaining thereto, and (ii) apply as a credit Securities of such series which
have been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, as provided for by the terms
of such Securities, or which have otherwise been acquired by the Company,
provided that such Securities so delivered or applied as a credit have not been
--------
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the applicable Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not less than
-----------------------------------------
sixty (60) days prior to each sinking fund payment date for Securities of any
series, the Company shall deliver to the Trustee a Company Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
such series pursuant to the terms of such series, the portion thereof, if any,
which is to be satisfied by payment of cash in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) and the portion thereof, if any,
-----------
which is to be satisfied by delivering and crediting Securities of such series
pursuant to Section 1202, and the optional amount, if any, to be added in cash
------------
to the next ensuing mandatory sinking fund payment, and shall also deliver to
the Trustee any Securities to be so delivered and credited. If such Company
Certificate specifies an optional amount to be added in cash to the next ensuing
mandatory sinking fund payment, the Company shall thereupon be obligated to pay
the amount therein specified. Not less than thirty (30) days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
on such sinking fund payment date in the manner specified in Section 1103 and
------------
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
------------
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1106 and 1107.
------------- ----
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of any
------------------------
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
-------
301) in accordance with this Article.
---
SECTION 1302. Repayment of Securities. Securities of any series subject
-----------------------
to repayment in whole or in part at the option of the Holders thereof will,
unless otherwise provided in the terms of such Securities, be repaid at a price
equal to the principal amount thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that at least one Business Day prior to the
Repayment Date it shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as it own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in the currency or
------------
72
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
-----------
principal (or, if so provided by the terms of the Securities of any series, a
percentage of the principal) of, and (except if the Repayment Date is an
Interest Payment Date) accrued interest on, all the Securities or portions
thereof, as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series subject to
------------------
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. In order for any Security to
be repaid at the option of the Holder, the Trustee must receive at the Place of
Payment therefor specified in the terms of such Security (or at such other place
or places of which the Company shall from time to time notify the Holders of
such Securities), not earlier than sixty (60) days nor later than thirty (30)
days prior to the Repayment Date, (i) the Security so providing for such
repayment together with the "Option to Elect Repayment" form on the reverse
thereof duly completed by the Holder (or by the Holder's attorney duly
authorized in writing), or (ii) a telegram, telex, facsimile transmission or a
letter from a member of a national securities exchange, or the National
Association of Securities Dealers, Inc., or a commercial bank or trust company
in the United States setting forth the name of the Holder of the Security, the
principal amount of the Security, the principal amount of the Security to be
repaid, the CUSIP number, if any, or a description of the tenor and terms of the
Security, a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Security to be repaid, together with the duly
completed form entitled "Option to Elect Repayment" on the reverse of the
Security, will be received by the Trustee not later than the fifth Business Day
after the date of such telegram, telex, facsimile transmission or letter;
provided, however, that such telegram, telex, facsimile transmission or letter
-------- -------
shall only be effective if such Security and form duly completed are received by
the Trustee by such fifth Business Day. If less than the entire principal amount
of such Security is to be repaid in accordance with the terms of such Security,
the principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered which is not to be
repaid, must be specified. The principal amount of any Security providing for
prepayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of or within the
series of which such Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at the option of
the Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
------------------------------------------------------
Payable. If Securities of any series providing for repayment at the option of
-------
the Holders thereof have been surrendered as provided in this Article and as
provided by or pursuant to the terms of such Securities, such Securities or the
portions thereof, as the case may be, to be repaid shall become due and payable
and shall be paid by the Company on the Repayment Date therein specified, and on
and after such Repayment Date (unless the Company defaults in the payment of
such Securities on such Repayment Date) such Securities shall, if the same were
interest-bearing, cease to bear interest and
73
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with any coupons appertaining thereto maturing after the Repayment Date, the
principal amount of such security so to be repaid shall be paid by the Company,
together with accrued interest, if any, to the Repayment Date; provided,
--------
however, that coupons whose Stated Maturity is on or prior to the Repayment 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
------------
pursuant to Section 301, only upon presentation and surrender of such coupons;
-----------
and provided, further, that, in the case of Registered Securities, installments
-------- -------
of interest, if any, whose Stated Maturity is on or prior to the Repayment Date
shall be payable (but without interest thereon, unless the Company defaults in
the payment thereof) to the 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 repayment is not accompanied by
all coupons appertaining thereto maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 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 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 surrenders to the Trustee or any Paying
Agent any such missing coupon in respect of which a deduction has been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented by a coupon
-------- -------
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 such
-----------
coupon.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
-------------------------
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
74
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
----------------------------------------------------
Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision is
--------------------------------- -----------
made for either or both of (i) defeasance of the Securities of or within a
series under Section 1402, or (ii) covenant defeasance of the Securities of or
------------
within a series under Section 1403 to be applicable to the Securities of any
------------
series, then the provisions of such Section or Sections, as the case may be,
together with the other provisions of this Article (with such modifications
thereto as may be specified pursuant to Section 301 with respect to any
-----------
Securities), shall be applicable to such Securities and any coupons appertaining
thereto, and the Company may at its option by Board Resolution, at any time,
with respect to such Securities and any coupons appertaining thereto, elect to
defease such Outstanding Securities and any coupons appertaining thereto
pursuant to Section 1402 (if applicable) or Section 1403 (if applicable) upon
------------ ------------
compliance with the conditions set forth below in this Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's exercise of
------------------------
the above option applicable to this Section with respect to any Securities of or
within a series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
------------
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
----------
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed "Outstanding" only for
the purposes of Section 1405 and the other Sections of this Indenture referred
------------
to in clauses (i) and (ii) below, and to have satisfied all of its other
obligations under such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of such Outstanding Securities and any coupons appertaining thereto to
receive, solely from the trust fund described in Section 1404 and as more fully
------------
set forth in such Section, payments in respect of the principal of (and premium
or Make-Whole Amount, if any, on) and interest and Additional Amounts, if any,
on such Securities and any coupons appertaining thereto when such payments are
due; (ii) the Company's obligations with respect to such Securities under
Sections 305, 306, 1002 and 1003 and with respect to the payment of Additional
------------ --- ---- ----
Amounts, if any, on such Securities as contemplated by Section 1010; (iii) the
------------
rights, powers, trusts, duties and immunities of the Trustee hereunder; and (iv)
this Article. Subject to compliance with this Article Fourteen, the Company may
----------------
exercise its option under this Section notwithstanding the prior exercise of its
option under Section 1403 with respect to such Securities and any coupons
------------
appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise of the
-------------------
above option applicable to this Section with respect to any Securities of or
within a series, the Company shall be released from its obligations under
Sections 1004 to 1008, inclusive, and, if specified pursuant to Section 301, its
------------- ---- -----------
obligations under any other covenant, with respect to such Outstanding
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 1404
75
are satisfied (hereinafter, "covenant defeasance"), and such Securities and any
-------------------
coupons appertaining thereto shall thereafter be deemed not "Outstanding" for
the purposes of any direction, waiver, consent or declaration or Act of Holders
(and the consequences of any thereof) in connection with Sections 1004 to 1008,
------------- ----
inclusive, or such other covenant, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to such Outstanding Securities and any coupons
appertaining thereto, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or such other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a default or an Event of Default under clause (4) or (9) of Section
-------
501 or otherwise, as the case may be, but, except as specified above, the
---
remainder of this Indenture and such Securities and any coupons appertaining
thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
-----------------------------------------------
following shall be the conditions to application of Section 1402 or Section 1403
------------ ------------
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Company has irrevocably deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
-----------
provisions of this Article Fourteen applicable to it) funds in trust
----------------
for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of
such Securities and any coupons appertaining thereto: (i) an amount in
such currency or currencies, currency unit or units or composite
currency or currencies in which such Securities and any coupons
appertaining thereto are then specified as payable at Stated Maturity,
or (ii) Government Obligations applicable to such Securities and any
coupons appertaining thereto (determined on the basis of the currency
or currencies, currency unit or units or composite currency or
currencies in which such Securities and any coupons appertaining
thereto are then specified as payable at Stated Maturity) which through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one (1) day
before the due date of any payment of principal of (and premium or
Make-Whole Amount, if any, on) and interest and Additional Amounts, if
any, on such Securities and any coupons appertaining thereto, money in
an amount, or (iii) a combination thereof in an amount, sufficient,
without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and
discharge, (A) the principal of (and premium or Make-Whole Amount, if
any, on) and interest and Additional Amounts, if any, on such
Outstanding Securities and any coupons appertaining thereto on the
Stated Maturity of such principal or installment of principal or
interest, and (B) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any coupons
appertaining thereto on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities and any coupons
76
appertaining thereto, provided that the Trustee has been irrevocably
--------
instructed to apply such money or the proceeds of such Government
Obligations to such payments with respect to such Securities. Before
such a deposit, the Company may give to the Trustee, in accordance with
Section 1102, a notice of its election to redeem all or any portion of
------------
such Outstanding Securities at a future date in accordance with the
terms of the Securities of such series and Article Eleven, which notice
shall be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other material agreement or instrument to which the Company is a
party or by which it is bound (and shall not cause the Trustee to have
a conflicting interest pursuant to Section 310(b) of the Trust
Indenture Act with respect to any Security of the Company).
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such
Securities and any coupons appertaining thereto has occurred and is
continuing on the date of such deposit or, insofar as clauses (7) and
(8) of Section 501 are concerned, at any time during the period ending
-----------
on the ninety-first (91st) day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1402, the Company
------------
has 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 execution 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 such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss
for federal income tax purposes as a result of such defeasance 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
defeasance had not occurred.
(e) In the case of an election under Section 1403, the Company
------------
has delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of such Outstanding Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance 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 covenant defeasance had
not occurred.
(f) The Company has delivered to the Trustee a Company
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant
------------
defeasance under Section 1403 (as the case may be) have been complied
------------
with and an Opinion of Counsel to the effect that either (i) as a
result of a deposit pursuant to paragraph (a) above and the related
exercise of the Company's option under Section 1402 or Section 1403 (as
------------ ------------
the case may be), registration is not required under the
77
Investment Company Act of 1940, as amended, by the Company with respect
to the trust funds representing such deposit or by the Trustee for such
trust funds, or (ii) all necessary registrations under such Act have
been effected.
(g) After the ninety-first (91st) day following the deposit,
the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
(h) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with
any additional or substitute terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section
301.
SECTION 1405. Deposited Money and Government Obligations to Be Held in
--------------------------------------------------------
Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
-------------------------------------
paragraph of Section 1003, all money and Government Obligations (or other
------------
property as may be provided pursuant to Section 301) (including the proceeds
-----------
thereof) deposited with the Trustee (or other qualifying trustee) pursuant to
Section 1404 in respect of any Outstanding Securities of any series and any
coupons appertaining thereto shall be held in trust and applied by the Trustee
or such other qualifying trustee, in accordance with the provisions of such
Securities and any coupons appertaining thereto and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee or such other qualifying trustee
may determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium or Make-Whole Amount, if any) and interest and Additional Amounts, if
any, but such money need not be segregated from other funds except to the extent
required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
----------- ------------
(i) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a currency, currency unit or composite currency
other than that in which the deposit pursuant to Section 1404(a) has been made
---------------
in respect of such Security, or (ii) a Conversion Event occurs in respect of the
currency, currency unit or composite currency in which the deposit pursuant to
Section 1404(a) has been made, the indebtedness represented by such Security and
---------------
any coupons appertaining thereto shall be deemed to have been, and will be,
fully discharged and satisfied through the payment of the principal of (and
premium or Make-Whole Amount, if any, on), and interest and Additional Amounts,
if any, on such Security as the same become due out of the proceeds yielded by
converting (from time to time as specified below in the case of any such
election) the amount or other property deposited in respect of such Security
into the currency, currency unit or composite currency in which such Security
becomes payable as a result of such election or Conversion Event based on the
applicable market exchange rate for such currency, currency unit or composite
currency in effect on the second Business Day prior to each payment date,
except, with respect to a Conversion Event, for such currency, currency unit or
composite currency in effect (as nearly as feasible) at the time of the
Conversion Event.
78
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 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 such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee
or such other qualifying trustee shall deliver or pay to the Company, from time
to time upon Company Request, any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 1404
------------
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee or such other qualifying trustee, are in excess of the amount thereof
which would then be required to be deposited to effect a defeasance or covenant
defeasance, as applicable, in accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A meeting of
-----------------------------------------
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. Call, Notice and Place of Meetings.
----------------------------------
(1) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to
------------
be held at such time and at such place in the city of Boston,
Massachusetts, as the Trustee determines. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the
place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in
Section 106, not less than twenty-one (21) nor more than one hundred
-----------
eighty (180) 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 ten percent (10%) in principal
amount of the Outstanding Securities of any series have requested the
Trustee to call a meeting of the Holders of Securities of such series
for any purpose specified in Section 1501, by written request setting
------------
forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee has not made the first publication of the
notice of such meeting within twenty-one (21) days after receipt of
such request or does 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 city of [Boston,
Massachusetts], for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in paragraph (a) above.
79
SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled to
------------------------------------
vote at any meeting of Holders of Securities of any series, a Person shall be
(i) a Holder of one or more Outstanding Securities of such series, or (ii) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders. The
only Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series are the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its counsel,
and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a majority
--------------
in principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
-------- -------
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of
not less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within thirty (30) minutes after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other case
the meeting may be adjourned for a period of not less than ten (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 ten
(10) days as determined by the chairman of the meeting prior to the adjournment
of such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 1502(a), except that such notice need be
---------------
given only once not less than five (5) days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of any
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
-----------
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of such series;
provided, however, that, except as limited by the proviso to Section 902, any
-------- ------- -----------
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Securities
of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and any coupons
appertaining thereto, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
------------
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand,
80
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 in principal amount of all Outstanding Securities affected
thereby, or of the Holders of such series and one or more additional series;
a. there shall be no minimum quorum requirement for such
meeting; and
b. the principal amount of the Outstanding Securities of such
series which vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given
or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
-------------------------------------------------------
of Meetings.
-----------
(1) Notwithstanding any 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 deems appropriate. Except as otherwise
permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104 and
-----------
the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the Person executing the
-----------
proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Section 104 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
-----------
(2) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting has been called
by the Company or by Holders of Securities as provided in Section
-------
1502(b), in which case the Company or the Holders of Securities of or
-------
within the series calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting each Holder of a Security of such series
or proxy shall be entitled to one (1) vote for each $1,000 principal
amount of the Outstanding Securities of such series held or represented
by such Holder; 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.
81
(4) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be
------------
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series
represented at the meeting, and the meeting may be held as so adjourned
without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings. The vote
-----------------------------------------------
on 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 series numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two (2) 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 such 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 fact, setting forth a
copy of the notice of the meeting and showing that such notice was given as
provided in Section 1502 and, if applicable, Section 1504. Each copy shall be
------------ ------------
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one (1) such copy shall be delivered to the Company and another
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
SECTION 1507. Evidence of Action Taken by Holders. Any request, demand,
-----------------------------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by a specified percentage in principal
amount of the Holders of any or all series may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such specified
percentage of Holders in person or by agent duly appointed in writing; and,
except as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to the Trustee.
Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Article
-------
Six) conclusive in favor of the Trustee and the Company, if made in the manner
---
provided in this Article.
SECTION 1508. Proof of Execution of Instruments. Subject to Article
---------------------------------- -------
Six, the execution of any instrument by a Holder or his agent or proxy may be
---
proved in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee.
82
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
HOMESTEAD VILLAGE INCORPORATED
By:______________________________
Name:________________________
Title:_______________________
[SEAL]
Attest:
__________________________
Secretary
STATE STREET BANK AND TRUST COMPANY,
As Trustee
By:______________________________
Name:_______________________
[SEAL] Title:______________________
Attest:
__________________________
Xxxxxxxxx
00
XXXXX XX XXX XXXXXX )
) ss:
COUNTY OF________ )
On the day of , 1998, before me personally came , to me known, who,
being by me duly sworn, did depose and say that he resides at , that he is a of
Homestead Village Incorporated, one of the entities described in and which
executed the foregoing instrument; that he knows the seal of such entity; that
the seal affixed to such instrument is such seal; that it was so affixed by
authority of the Board of Directors of such entity, and that he signed his name
thereto by like authority.
[Notarial Seal]
______________________________________
Notary Public
Commission Expires
[STATE OF MASSACHUSETTS] )
) ss:
[COUNTY OF SUFFOLK] )
On the _____ day of , 1998, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that _____ resides at ________________________________________, that _____
is a ____________________ of State Street Bank and Trust Company, one of the
entities described in and which executed the foregoing instrument; that _____
knows the seal of such entity; that the seal affixed to such instrument is such
seal; that it was so affixed by authority of the Board of Directors of such
entity, and that _____ signed _____ name thereto by like authority.
[Notarial Seal]
___________________________________
Notary Public
Commission Expires
84
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION OF SECURITIES TO BE DELIVERED]
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 (i) are owned
by person(s) which 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 person(s)"), (ii) are owned by United States person(s) which are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 1.165-
12(c)(1)(v) are herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s) 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 hereby agrees, on its own behalf or through its agent, that you may
advise Homestead Village Incorporated or its agent that such financial
institution will provide a certificate within a reasonable time stating that it
agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by a financial institution for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, such financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)), certifies that it 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.
As used herein, "United States" means the United States of America
(including the States and the 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 above-
captioned 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 certificate excepts and does not relate to [U.S.$] _______________
of such interest in the above-captioned Securities in respect of which we are
not able to certify and as to which we understand an exchange for an interest in
a Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: __________ ___, 19___
[To be dated no earlier than the 15th day prior
to the earlier of (i) the Exchange Date or
(ii) the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Name of Person Making Certification]
_____________________________________
(Authorized Signatory)
Name:
Title:
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION OF SECURITIES TO BE DELIVERED]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] _______________
principal amount of the above-captioned Securities (i) is owned by person(s)
which 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
person(s)"), (ii) is owned by United States persons(s) which are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in United States Treasury Regulations Section 1.165-12(c)(1)(v) are
herein referred to as "financial institutions") purchasing for their own account
or for resale, or (b) United States person(s) 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 financial institution has
agreed, on its own behalf or through its agent, that we may advise Homestead
Village Incorporated or its agent that such financial institution will provide a
certificate within a reasonable time stating that it agrees 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 (iii) is owned by a
financial institution for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and that such 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.
As used herein, "United States" means the United States of America
(including the States and the 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 further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) 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, collection of any
interest) are no longer true and cannot be relied on as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: __________ ___, 19___
[To be dated no earlier than the earlier of
the Exchange Date or the relevant Interest
Payment Date occurring prior to the Exchange
Date, as applicable]
[Xxxxxx Guaranty Trust Company of New York,
Brussels Office,] as Operator of the Euroclear System
[Cedel S.A.]
By:________________________
