Exhibit 4.3
FREEPORT-MCMORAN COPPER & GOLD INC., Issuer
and
_______________________, Trustee
SENIOR
INDENTURE
Dated as of _____________________, 2000
TABLE OF CONTENTS
Page
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PARTIES 1
RECITALS 1
ARTICLE ONE - DEFINITIONS
SECTION 1.1
Certain Terms Defined 1
Authenticating Agent 1
Authorized Newspaper 2
Authorized Signatory 2
Board of Directors 2
Board Resolution 2
Business Day 2
Commission 2
Company Order 2
Corporate Trust Office 2
Coupon 2
Debt 2
Default 3
Defeasance 3
Depositary 3
Dollar 3
ECU 3
Event of Default 3
Exchange Act 3
Foreign Currency 3
Guarantee 3
Holder, Holder of Securities,
Securityholder 3
Indenture 4
Insolvency Law 4
Interest 4
Interest Payment Date 4
Issuer 4
Judgment Currency 4
Officers' Certificate 4
Opinion of Counsel 4
original issue date 4
Original Issue Discount Security 4
Outstanding 4
i
Periodic Offering 5
Person 5
principal 5
Redemption Date 5
Redemption Price 5
Registered Global Security 5
Registered Security 6
Regular Record Date 6
Required Currency 6
Responsible Officer 6
SEC Reports 6
Securities Act 6
Security or Securities 6
Security Registrar 6
Stated Maturity 6
Trust Indenture Act of 1939 6
Trustee 6
Unregistered Security 7
U.S. Government Obligations 7
Yield to Maturity 7
ARTICLE TWO - ISSUE, EXECUTION, FORM AND
REGISTRATION OF SECURITIES
SECTION 2.1 Forms Generally 7
SECTION 2.2 Form of Trustee's Certificate
of Authentication 7
SECTION 2.3 Amount Unlimited; Issuable
in Series 8
SECTION 2.4 Authentication and Delivery
of Securities 11
SECTION 2.5 Execution of Securities 13
SECTION 2.6 Certificate of
Authentication 14
SECTION 2.7 Denomination and Date of
Securities; Payments of Interest 14
SECTION 2.8 Registration, Transfer and
Exchange 15
SECTION 2.9 Mutilated, Defaced,
Destroyed, Lost and Stolen Securities 18
SECTION 2.10 Cancellation of Securities;
Disposition Thereof 19
SECTION 2.11 Temporary Securities 20
ARTICLE THREE - COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and
Interest 20
SECTION 3.2 Offices for Payments, etc. 21
SECTION 3.3 Appointment to Fill a
Vacancy in Office of Trustee 22
SECTION 3.4 Paying Agents 22
SECTION 3.5 Written Statement to
Trustee 23
ii
SECTION 3.6 Corporate Existence 23
SECTION 3.7 Luxembourg Publications 23
ARTICLE FOUR - SECURITYHOLDERS' LISTS AND REPORTS BY THE ISSUER
AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee
Information as to Names and
Addresses of Securityholders 24
SECTION 4.2 Preservation and Disclosure
of Securityholders' Lists 24
SECTION 4.3 Reports by the Issuer 24
SECTION 4.4 Reports by the Trustee 25
ARTICLE FIVE - REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined;
Acceleration of Maturity; Waiver of
Default 25
SECTION 5.2 Collection of Debt by
Trustee; Trustee May Prove Debt 28
SECTION 5.3 Application of Proceeds 30
SECTION 5.4 Suits for Enforcement 31
SECTION 5.5 Restoration of Rights on
Abandonment of Proceedings 31
SECTION 5.6 Limitations on Suits by
Securityholders 31
SECTION 5.7 Unconditional Right of
Securityholders to Institute Certain
Suits 32
SECTION 5.8 Powers and Remedies
Cumulative; Delay or Omission Not
Waiver of Default 32
SECTION 5.9 Control by Securityholders 32
SECTION 5.10 Waiver of Past Defaults 33
SECTION 5.11 Trustee to Give Notice of
Default, But May Withhold in Certain
Circumstances 33
SECTION 5.12 Right of Court to Require
Filing of Undertaking to Pay Costs 33
ARTICLE SIX - CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities
of the Trustee; During Default; Prior
to Default 34
SECTION 6.2 Certain Rights of the
Trustee 35
SECTION 6.3 Trustee Not Responsible
for Recitals, Disposition of
Securities or Application of Proceeds
Thereof 36
SECTION 6.4 Trustee and Agents May Hold
Securities or Coupons; Collections,
etc. 36
SECTION 6.5 Monies Held by Trustee 36
iii
SECTION 6.6 Compensation and
Indemnification of Trustee and Its
Prior Claim 36
SECTION 6.7 Right of Trustee to Rely
on Officers' Certificate, etc. 37
SECTION 6.8 Persons Eligible for
Appointment as Trustee 37
SECTION 6.9 Resignation and Removal;
Appointment of Successor Trustee 37
SECTION 6.10 Acceptance of Appointment
by Successor Trustee 39
SECTION 6.11 Merger, Conversion,
Consolidation or Succession to
Business of Trustee 40
SECTION 6.12 Preferential Collection
of Claims Against the Issuer 40
SECTION 6.13 Appointment of
Authenticating Agent 41
ARTICLE SEVEN - CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken
by Securityholders 42
SECTION 7.2 Proof of Execution of
Instruments and of Holding of
Securities 42
SECTION 7.3 Holders to be Treated as
Owners 43
SECTION 7.4 Securities Owned by Issuer
Deemed Not Outstanding 43
SECTION 7.5 Right of Revocation of
Action Taken 44
SECTION 7.6 Record Date for Consents
and Waivers 44
ARTICLE EIGHT - SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures
Without Consent of Securityholders 45
SECTION 8.2 Supplemental Indentures
With Consent of Securityholders 46
SECTION 8.3 Effect of Supplemental
Indenture 48
SECTION 8.4 Documents to Be Given
to Trustee 48
SECTION 8.5 Notation on Securities
in Respect of Supplemental
Indentures 48
ARTICLE NINE - CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of the Issuer Not to Merge,
Consolidate, Sell or Convey Property
Except Under Certain Conditions 48
SECTION 9.2 Successor Entity
Substituted 49
SECTION 9.3 Opinion of Counsel to
Trustee 50
ARTICLE TEN - SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED
MONIES
SECTION 10.1 Satisfaction and Discharge
of Indenture 50
iv
SECTION 10.2 Application by Trustee of
Funds Deposited for Payment of
Securities 54
SECTION 10.3 Repayment of Monies Held
by Paying Agent 54
SECTION 10.4 Return of Monies Held by
Trustee and Paying Agent Unclaimed
for Two Years 54
SECTION 10.5 Indemnity for U.S.
Government Obligations 55
ARTICLE ELEVEN - MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders
, Officers and Directors of Issuer
Exempt from Individual Liability 55
SECTION 11.2 Provisions of Indenture
for the Sole Benefit of Parties and
Securityholders 55
SECTION 11.3 Successors and Assigns of
Issuer Bound by Indenture 56
SECTION 11.4 Notices and Demands on
Issuer, the Trustee and
Securityholders 56
SECTION 11.5 Officers' Certificates
and Opinions of Counsel, Statements
to Be Contained Therein 56
SECTION 11.6 Payments Due on Saturdays
, Sundays and Legal Holidays 57
SECTION 11.7 Conflict of Any Provision
of Indenture with Trust Indenture Act
of 1939 58
SECTION 11.8 New York Law to Govern;
Separability 58
SECTION 11.9 Counterparts 58
SECTION 11.10 Effect of Headings 58
SECTION 11.11 Securities in a Foreign
Currency or in ECU 58
SECTION 11.12 Judgment Currency 59
ARTICLE TWELVE - REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Application of Article 59
SECTION 12.2 Notice of Redemption 60
SECTION 12.3 Payment of Securities
Called for Redemption 61
SECTION 12.4 Exclusion of Certain of
Securities from Eligibility for
Selection for Redemption 62
SECTION 12.5 Mandatory and Optional
Sinking Funds 62
TESTIMONIUM 65
SIGNATURES AND SEALS 66
ACKNOWLEDGMENTS 67
v
CROSS REFERENCE SHEET*
---------------------
Between
Provisions of Trust Indenture Act of 1939, as amended, and the
Indenture to be dated as of ___________________, 2000 between
Freeport-McMoRan Copper & Gold Inc. and ____________________, as
Trustee:
Section of the Act Section of Indenture
------------------ --------------------
310(a)(1), (2) and (5) 6.8
310(a)(3) and (4) Inapplicable
310(b) 6.9(a), (b) and (d)
310(c) Inapplicable
311(a) and (b) 6.12
311(c) Inapplicable
312(a) 4.1 and 4.2(a)
312(b) 4.2(b)
312(c) 4.2(c)
313(a) 4.4(a)
313(a)(5) 4.4(b)
313(b) 4.4(b)
313(c) 4.4(c)
313(d) 4.4(d)
314(a) 3.5 and 4.3
314(b) Inapplicable
314(c) 11.5
314(d) Inapplicable
314(e) 11.5
314(f) Inapplicable
315(a), (c) and (d) 6.1
315(b) 5.11
315(e) 5.12
316(a)(1) 5.9
316(a)(2) Not required
316(a) (last sentence) 7.4
316(b) 5.7
316(c) 7.6
317(a) 5.2
317(b) 3.4
318(a) 11.7
*This Cross Reference Sheet is not part of the Indenture.
vi
THIS INDENTURE, dated as of __________________________, 2000,
by and between Freeport-McMoRan Copper & Gold Inc. (the "Issuer"),
a Delaware corporation, and ____________________, a
_____________________ corporation, as trustee (the "Trustee"),
WITNESSETH:
WHEREAS, the Issuer has duly authorized the issue from time to
time of its unsecured debentures, notes or other evidences of
indebtedness to be issued in one or more series (the "Securities")
up to such principal amount or amounts as may from time to time be
authorized by the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement of the Issuer according to its terms, have
been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the Holders thereof, the Issuer and the Trustee
mutually covenant and agree for the equal and proportionate benefit
of the respective Holders from time to time of the Securities and
of the Coupons, if any, appertaining thereto, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context
otherwise clearly requires) for all purposes of this Indenture and
of any indenture supplemental hereto shall have the respective
meanings specified in this Section. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939 or
are defined in the Securities Act and referred to in the Trust
Indenture Act of 1939 (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the
meanings assigned to such terms in the Trust Indenture Act of 1939
and in the Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not expressly
defined shall have the meanings given to them in accordance with
generally accepted accounting principles, and the term "generally
accepted accounting principles" shall mean generally accepted
accounting principles in the United States which are in effect on
the date or time of any determination. 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. The terms defined in this Article
include the plural as well as the singular.
"Authenticating Agent" shall have the meaning set forth
in Section 6.13.
1
"Authorized Newspaper" means a newspaper (which, in the
case of The City of New York, will, if practicable, be The Wall
Street Journal (Eastern Edition), in the case of London, will, if
practicable, be the Financial Times (London Edition) and, in the
case of Luxembourg, will, if practicable, be the Luxemburger Wort)
published in an official language of the country of publication
customarily published at least once a day for at least five days in
each calendar week and of general circulation in the City of New
York, London or Luxembourg as applicable. If it shall be
impractical in the opinion of the Trustee to make any publication
of any notice required hereby in an Authorized Newspaper, any
publication or other notice in lieu thereof which is made or given
with the approval of the Trustee shall constitute a sufficient
publication of such notice.
"Authorized Signatory" means any of the chairman of the
Board of Directors, the president, any vice president (whether or
not designated by a number or numbers or a word or words added
before or after the title "Vice President"), the treasurer or any
assistant treasurer or the secretary or any assistant secretary of
any Person.
"Board of Directors" of any Person means the Board of
Directors of such Person, or any committee of such Board duly
formed and authorized to act on its behalf.
"Board Resolution" of any Person means a copy of one or
more resolutions, certified by the secretary or an assistant
secretary of such Person to have been duly adopted or consented to
by the Board of Directors of such Person and to be in full force
and effect, and delivered to the Trustee.
"Business Day" means, with respect to a Security, a day
that in the city (or in any cities, if more than one) in which
amounts are payable, as specified in the form of such Security,
which is not a day on which banking institutions and trust
companies are authorized by law or regulation or executive order to
close.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or if at any time after the execution and delivery of
this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, the body
performing such duties on such date.
"Company Order" means a written statement, request or
order of the Issuer which is signed in the Issuer's name by the
chairman of the Board of Directors, the president, any executive
vice president, any senior vice president or any vice president of
the Issuer.
"Corporate Trust Office" means the office of the Trustee
at which the corporate trust business of the Trustee shall, at any
particular time, be principally administered, which office is, at
the date as of which this Indenture is dated, located at
__________________________________ .
"Coupon" means any interest coupon appertaining to a
Security.
"Debt" shall have the meaning set forth in Section 5.1.
2
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Defeasance" shall have the meaning set forth in Section
10.1.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or
more Registered Global Securities, the Person designated as the
Depositary by the Issuer pursuant to Section 2.3 until a successor
Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder, and
if at any time there is more than one such Person, "Depositary" as
used with respect to the Securities of any such series shall mean
the Depositary with respect to the Registered Global Securities of
that series; provided that any Person that is a Depositary
hereunder must be a clearing agency registered under the Exchange
Act and any other applicable statute or regulation.
"Dollar" means the coin or currency of the United States
of America as at the time of payment is legal tender for the
payment of public and private debts.
"ECU" means The European Currency Unit as defined and
revised from time to time by the Council of European Communities.
"Event of Default" means any event or condition specified
as such in Section 5.1.
"Exchange Act" means the Securities and Exchange Act of
1934, as amended.
"Foreign Currency" means a currency issued by the
government of a country other than the United States.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or indirectly
guaranteeing any Indebtedness or other obligation of any other
Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation
(whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement
conditions or otherwise), or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part), provided
that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term
"Guarantee" as used as a verb has a corresponding meaning.
"Holder", "Holder of Securities", "Securityholder" or
other similar terms mean (a) in the case of any Registered
Security, the Person in whose name such Security is registered in
the Security register kept by the Issuer for that purpose in
accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
3
"Indenture" means this instrument as originally executed
and delivered or, if amended or supplemented as herein provided, as
so amended or supplemented or both, and shall include the forms and
terms of particular series of Securities established as
contemplated hereunder.
"Insolvency Law" means any applicable bankruptcy,
insolvency, reorganization or similar law in any applicable
jurisdiction.
"Interest" means, when used with respect to non-interest
bearing Securities, interest payable after maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Issuer" means Freeport-McMoRan Copper & Gold Inc., a
Delaware corporation, and, subject to Article Nine, its successors
and assigns.
"Judgment Currency" shall have the meaning set forth in
Section 11.12.
"Officers' Certificate" means a certificate signed by the
chairman of the board or the president or any vice president
(whether or not designated by a number or numbers or a word or
words added before or after the title "Vice President") and by the
treasurer or any assistant treasurer or the secretary or any
assistant secretary of the Issuer and delivered to the Trustee.
Each such certificate shall include the statements provided for in
Section 11.5, if and to the extent required hereby.
"Opinion of Counsel" means an opinion in writing signed
by legal counsel, who may be an employee of or counsel to the
Issuer or such other legal counsel who may be satisfactory to the
Trustee. Each such opinion shall include the statements provided
for in Section 11.5, if and to the extent required hereby.
"original issue date" of any Security (or portion
thereof) means the earlier of (a) the Issue Date of such Security
or (b) the Issue Date of any Security (or portion thereof) for
which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution. For purposes
of this definition, "Issue Date" means, with respect to a Security,
the date of original issuance thereof.
"Original Issue Discount Security" means any Security
that 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 5.1.
"Outstanding", when used with reference to Securities of
any series issued hereunder, shall, subject to the provisions of
Section 7.4, mean, as of any particular time, all Securities of
such series authenticated and delivered by the Trustee under this
Indenture, except:
4
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities (other than Securities of any series
as to which the provisions of Article 10 hereof shall not be
applicable), or portions thereof, for the payment or
redemption of which monies or U.S. Government Obligations (as
provided for in Section 10.1) in the necessary amount shall
have been deposited in trust with the Trustee or with any
paying agent (other than the Issuer) or shall have been set
aside, segregated and held in trust by the Issuer (if the
Issuer shall act as its own paying agent), provided that if
such Securities, or portions thereto, are to be redeemed prior
to the Stated Maturity thereof, notice of such redemption
shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving
such notice; and
(c) Securities which shall have been paid or in
substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section
2.9 (unless proof satisfactory to the Trustee is presented
that any of such Securities is held by a Person in whose hands
such Security is a legal, valid and binding obligation of the
Issuer).
In determining whether the Holders of the requisite principal
amount of Outstanding Securities of any or all series have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such
purposes shall be the amount of the principal thereof that would be
due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to
Section 5.1.
"Periodic Offering" means an offering of Securities of a
series from time to time, the specific terms of which Securities,
including, without limitation, the rate or rates of interest, if
any, thereon, the Stated Maturity or maturities thereof and the
redemption provisions, if any, with respect thereto, are to be
determined by the Issuer or its agents upon the issuance of such
Securities.
"Person" means any individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"principal" whenever used with reference to the
Securities of any series or any portion thereof, shall be deemed to
include "and premium, if any".
"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 Global Security" means a Security evidencing
all or a part of a series of Registered Securities, issued to the
Depositary for such series in accordance with Section 2.4, and
bearing the legend prescribed in Section 2.4.
"Registered Security" means any Security registered on
the Security register of the Issuer, which Security shall be
without Coupons.
5
"Regular Record Date" for interest payable on any
Interest Payment Date on the Registered Securities of any series
means the date specified for that purpose as contemplated by
Section 2.3, or if no such date is established, if such Interest
Payment Date is the first day of a calendar month, the fifteenth
day of the next preceding calendar month or, if such Interest
Payment Date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such Regular Record Date
is a Business Day.
"Required Currency" shall have the meaning set forth in
Section 11.12.
"Responsible Officer", when used with respect to the
Trustee means the Chairman of the Board of Directors, the
President, the Secretary, the Treasurer, or any other officer of
the Trustee customarily performing corporate trust functions.
"SEC Reports" shall have the meaning set forth in Section
4.3.
"Securities Act" means the Securities Act of 1933, as
amended.
"Security" or "Securities" has the meaning stated in the
first recital of this Indenture and more particularly means any
Securities of any series, authenticated and delivered under this
Indenture.
"Security Registrar" means the Trustee or any successor
Security Registrar appointed by the Issuer.
"Stated Maturity" means, with respect to any Security,
the date specified in such Security as the fixed date on which the
principal of such security is due and payable, including pursuant
to any mandatory redemption provision (but excluding any provision
providing for the repurchase of such security at the option of the
Holder thereof upon the happening of any contingency unless such
contingency has occurred) and with respect to any installment of
interest upon such Security, the date specified in such Security,
or Coupon appertaining thereto, if applicable as the fixed date on
which such installment of interest is due and payable.
"Trust Indenture Act of 1939" (except as otherwise
provided in Sections 8.1 and 8.2) means the Trust Indenture Act of
1939 as in force at the date as of which this Indenture was
originally executed.
"Trustee" means the Person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article
Six, shall also include any successor trustee. "Trustee" shall
also mean or include each person who is then a trustee hereunder
and if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any series shall mean the
trustee with respect to the Securities of such series.
6
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" shall have the meaning set
forth in Section 10.1(A).
"Yield to Maturity" means the yield to maturity on a
series of Securities, calculated at the time of the issuance of
such series, or, if applicable, at the most recent redetermination
of interest on such series, and calculated in accordance with
generally accepted financial practice.
ARTICLE TWO
ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series
and the Coupons, if any, issued hereunder shall be substantially in
such form and bear such legends (not inconsistent with this
Indenture) as shall be established by or pursuant to one or more
Board Resolutions of the Issuer (as set forth in a Board Resolution
of the Issuer or, to the extent established pursuant to rather than
set forth in a Board Resolution of the Issuer, an Officers'
Certificate of the Issuer detailing such establishment) or in one
or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may
have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of
this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any
securities exchange or to conform to general usage, all as may be
determined by the officers of the Issuer executing such Securities
and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any. If temporary Securities are issued
as permitted by Section 2.11, the form thereof also shall be
established as provided in the preceding sentence.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may
be produced in any other manner, all as determined by the officers
executing such Securities and Coupons, if any, as evidenced by
their execution of such Securities and Coupons, if any.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities
shall be in substantially the following form:
"This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
____________________________, Trustee
By:
--------------------------
"Authorized Officer"
7
If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, the Securities
of such series may have endorsed thereon, in addition to the
Trustee's certificate of authentication, an alternate certificate
of authentication in substantially the following form:
"This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
______________________________, Trustee
By:
----------------------------
As Authenticating Agent
By:
----------------------------
"Authorized Officer"
SECTION 2.3 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 and each
such series shall rank equally and pari passu with all other
unsecured and unsubordinated Debt of the Issuer. There shall be
established in or pursuant to one or more Board Resolutions of the
Issuer (and to the extent established pursuant to rather than set
forth in a Board Resolution, in an Officers' Certificate detailing
such establishment) or in one or more indentures supplemental
hereto, prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the series,
which shall distinguish the Securities of the series from the
Securities of all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency in which
the Securities of that series are denominated (including, but
not limited to, any Foreign Currency or ECU);
(4) the date or dates on which the principal of the
Securities of the series is payable;
8
(5) the rate or rates at which the Securities of the
series shall bear interest, if any, the date or dates from
which such interest shall accrue, the Interest Payment Date on
which any such interest shall be payable and (in the case of
Registered Securities) the Regular Record Date for any
interest payable on any Interest Payment Date and/or the
method by which such rate or rates or Regular Record Date or
Dates shall be computed or determined;
(6) the place or places where the principal of and any
interest on Securities of the series shall be payable (if
other than as provided in Section 3.2);
(7) the right, if any, of the Issuer or any Holder to
redeem or cause to be redeemed Securities of the series, in
whole or in part, at its option and the period or periods
within which, the price or prices at which, and the manner in
which (if different from the provisions of Article Twelve
hereof), and any terms and conditions upon which Securities of
the series may be so redeemed, pursuant to any sinking fund or
otherwise and/or the method by which such price or prices
shall be determined;
(8) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of the series, in whole or in
part, pursuant to any mandatory redemption, sinking fund or
analogous provisions or at the option of a Holder thereof and
the price or prices (and/or the method by which such price or
prices shall be determined) at which, the period or periods
within which and the manner in which (if different from the
provisions of Article Twelve hereof) Securities of the series
shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof in the case of Registered
Securities, or $1,000 and $5,000 in the case of Unregistered
Securities, the denominations in which Securities of the
series shall be issuable;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series
which shall be payable upon declaration of acceleration of the
maturity thereof;
(11) if other than the coin or currency in which the
Securities of that series are denominated, the coin or
currency in which payment of the principal of or interest on
the Securities of such series shall be payable;
(12) if the principal of or interest on the Securities of
such series are to be payable, at the election of the Issuer
or a Holder thereof, in a coin or currency other than that in
which the Securities are denominated, the period or periods
within which, and the terms and conditions upon which, such
election may be made and the manner in which the exchange rate
with respect to such payments shall be determined;
(13) if the amount of payments of principal of and/or
interest on the Securities of the series may be determined
with reference to the value or price of any one or more
commodities, currencies or indices, the manner in which such
amounts will be determined;
9
(14) whether the Securities of the series will be
issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities
and, if so, the Depositary therefor and the form of any legend
in addition or in lieu of that provided in Section 2.4 to be
borne by such Registered Global Security) or Unregistered
Securities (with or without Coupons), or any combination of
the foregoing, any restrictions and procedures applicable to
the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon, if other than provided in Section
2.8, and the terms upon which Unregistered Securities of any
series may be exchanged for Registered Securities of such
series and vice versa if other than provided in Section 2.8;
(15) whether and under what circumstances the Issuer will
pay additional amounts on the Securities of the series to
Holders, or certain Holders, thereof in respect of any tax,
assessment or governmental charge withheld or deducted and, if
so, whether the Issuer will have the option to redeem such
Securities rather than pay such additional amounts (and the
terms of any such option);
(16) 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 satis-
faction of other conditions, the form and terms of such
certificates, documents or conditions;
(17) any trustees, depositaries authenticating or paying
agents, transfer agents or registrars or any other agents with
respect to the Securities of such series;
(18) provisions, if any, granting specific rights to
Holders or Securities of such series upon the occurrence of
such events as may be specified;
(19) any deletions from, modifications of or additions to
the Events of Default or covenants set forth herein (including
any defined terms relating thereto);
(20) the term and condition, upon which and the manner in
which Securities of the series may be defeased or defeasible
if different from the provisions of Article Ten;
(21) whether the Securities will be issued as global
Securities and, if other than as provided in Section 2.8, the
terms upon which such global Securities may be exchanged for
definitive Securities;
(22) offices at which presentation and demands may be
made and notices be served, if other than the Corporate Trust
Office; 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 Coupons appertaining
thereto, if any, shall be substantially identical, except in the
case of Registered Securities as to denomination and except as may
10
otherwise be provided by or pursuant to the Board Resolution or
Officers' Certificate referred to above or as set forth in any such
indenture supplemental hereto. All Securities of any one series
need not be issued at the same time and may be issued from time to
time, consistent with the terms of this Indenture, if so provided
by or pursuant to such Board Resolution, such Officers' Certificate
or in any such indenture supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities. Upon
the execution and delivery of this Indenture, or from time to time
thereafter, Securities, including Coupons appertaining thereto, if
any, may be executed by the Issuer and delivered to the Trustee for
authentication together with the applicable documents referred to
below in this section, and the Trustee shall thereupon authenticate
and deliver such Securities and Coupons appertaining thereto, if
any, to or upon the order of the Issuer (contained in the Company
Order referred to below in this section) or pursuant to such
procedures acceptable to the Trustee and to such recipients as may
be specified from time to time by such Company Order, without any
further action by the Issuer. The maturity date, original issue
date, interest rate and any other terms of the Securities of such
series and Coupons, if any, appertaining thereto shall be
determined by or pursuant to such Company Order or procedures
authorized by such Company Order. If provided for in such
procedures, such Company Order may authorize authentication and
delivery of Securities pursuant to oral instructions from the
Issuer or its duly authorized agent, which instructions shall be
promptly confirmed in writing. In authenticating such Securities
and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to
receive (in the case of subparagraphs 2, 3 and 4 below only at or
before the time of the first request of the Issuer to the Trustee
to authenticate Securities of such series) and (subject to Section
6.1) shall be fully protected in relying upon, unless and until
such documents have been superseded or revoked:
(1) a Company Order requesting such authentication and
setting forth delivery instructions if the Securities and
Coupons, if any, are not to be delivered to the Issuer,
provided that, with respect to Securities of a series subject
to a Periodic Offering, (a) such Company Order may be
delivered by the Issuer to the Trustee prior to the delivery
to the Trustee of such Securities for authentication and
delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to
time, in an aggregate principal amount not exceeding the
aggregate principal amount established for such series,
pursuant to a Company Order or pursuant to procedures
acceptable to the Trustee as may be specified from time to
time by a Company Order, (c) the maturity date or dates,
original issue date or dates or interest rate or rates and any
other terms of Securities of such series shall be determined
by a Company Order or pursuant to such procedures and (d) if
provided for in such procedures, such Company Order may
authorize authentication and delivery of Securities pursuant
to oral or electronic instructions from the Issuer or its duly
authorized agent or agents, which oral or electronic
instructions shall be promptly confirmed in writing, and (e)
after the original issuance of the first Security of such
series to be issued, any separate request by the Issuer that
the Trustee authenticate Securities of such series for
original issuance will be deemed to be a certification by the
Issuer that it is in compliance with all conditions precedent
provided for in this Indenture relating to the authentication
and delivery of such Securities;
11
(2) any Board Resolution, Officers' Certificate and/or
executed supplemental indenture referred to in Sections 2.1
and 2.3 by or pursuant to which the forms and terms of the
Securities and Coupons, if any, were established;
(3) an Officers' Certificate setting forth the form or
forms and terms of the Securities and stating that the form or
forms and terms of the Securities and Coupons, if any, have
been established pursuant to Sections 2.1 and 2.3 and comply
with this Indenture, and covering such other matters as the
Trustee may reasonably request; and
(4) At the option of the Issuer, either an Opinion of
Counsel of the Issuer, or a letter addressed to the Trustee
permitting it to rely on an Opinion of Counsel of the Issuer,
substantially to the effect that:
(a) the forms of the Securities and Coupons,
if any, have been duly authorized and established in
conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the
terms of the Securities have been duly authorized and
established in conformity with the provisions of this
Indenture, and, in the case of a Periodic Offering,
certain terms of the Securities have been established
pursuant to a Board Resolution of the issuer, an
Officers' Certificate or a supplemental indenture in
accordance with this Indenture, and when such other terms
as are to be established pursuant to procedures set forth
in a Company Order shall have been established, all such
terms will have been duly authorized by the Issuer and
will have been established in conformity with the provi-
sions of this Indenture;
(c) when the Securities and Coupons, if any,
have been executed by the Issuer and authenticated by the
Trustee in accordance with the provisions of this
Indenture and delivered to and duly paid for by the pur-
chasers thereof, they will have been duly issued under
this Indenture and will be valid and legally binding
obligations of the Issuer, enforceable in accordance with
their respective terms, and will be entitled to the
benefits of this Indenture; and
(d) the execution and delivery by the Issuer of,
and the performance by the Issuer of its obligations
under the Securities and the Coupons, if any, will not
contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Issuer or
to the best of counsel's knowledge any agreement or other
instrument binding upon the Issuer that is material to
the Issuer or, to the best of such counsel's knowledge
but without any independent investigation, any judgment,
order or decree of any governmental body, agency or court
having jurisdiction over the Issuer and no consent,
approval or authorization of any governmental body or
agency is required for the performance by the Issuer of
its obligations under the Securities and Coupons, if any,
except such as are specified and have been obtained and
such as may be required by the securities or blue sky
laws of the various states in connection with the offer
and sale of the Securities and Coupons, if any.
12
In rendering such opinions, such counsel may qualify any
opinions as to enforceability by stating that such enforceability
may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Such counsel may rely upon opinions of other counsel (copies of
which shall be delivered to the Trustee), who shall be counsel
reasonably satisfactory to the Trustee, in which case the opinion
shall state that such counsel believes he and the Trustee are
entitled so to rely. Such counsel may also state that, insofar as
such opinion involves factual matters, he has relied, to the extent
he deems proper, upon certificates of officers of the Issuer and
any of its subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being
advised by counsel, determines that such action may not lawfully be
taken by the Issuer or if the Trustee in good faith by its Board of
Directors or board of trustees, executive committee, or a trust
committee of directors or trustees or Responsible Officers shall
determine that such action would expose the Trustee to personal
liability to existing Holders or would affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture
or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that all
or a portion of the Securities of a series are to be issued in the
form of one or more Registered Global Securities, then the Issuer
shall execute and the Trustee shall, in accordance with this
Section 2.4 and the Company Order with respect to such series,
authenticate and deliver one or more Registered Global Securities
that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of all or a portion of the
Securities of such series issued and not yet canceled or exchanged
to be represented by such Registered Global Securities, (ii) shall
be registered in the name of the Depositary for such Registered
Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or a
nominee thereof or a custodian therefor or pursuant to such
Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "This Security is a
Registered Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a
Depositary or a nominee thereof. This Security may not be
exchanged in whole or in part for a Security registered, and no
transfer of this Security in whole or in part may be registered in
the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the
Indenture."
SECTION 2.5 Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on
behalf of the Issuer by the chairman of the Board of Directors, the
president, any vice president (whether or not designated by a
number or numbers or a word or words added before or after the
title "Vice President") or the Treasurer of the Issuer, under its
corporate seal (except in the case of Coupons) which may, but need
not be, attested. Such signature may be the manual or facsimile
signature of the present or any future such chairman or officers.
The corporate seal of the Issuer may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors
or defects in any such reproduction of any such signature shall not
affect the validity or enforceability of any Security that has been
duly authenticated and delivered by the Trustee.
13
In case any officer of the Issuer who shall have signed any of
the Securities or Coupons, if any, shall cease to be such officer
before the Security or Coupon so signed shall be authenticated and
delivered by the Trustee or disposed of by the Issuer, such
Security or Coupon nevertheless may be authenticated and delivered
or disposed of as though the Person who signed such Security or
Coupon had not ceased to be such officer of the Issuer; and any
Security or Coupon may be signed on behalf of the Issuer by such
Person as, at the actual date of the execution of such Security or
Coupon, shall be the proper officer of the Issuer, although at the
date of the execution and delivery of this Indenture any such
Person was not such officer.
SECTION 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication
substantially in the form set forth in Section 2.2, executed by the
Trustee by the manual signature of one of its authorized officers,
shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate by the Trustee upon
any Security executed by the Issuer shall be conclusive evidence
that the Security and Coupons, if any, appertaining thereto so
authenticated have been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as
Registered Securities or Unregistered Securities in denominations
established as contemplated by Section 2.3 or, with respect to the
Registered Securities of any series, if not so established, in
denominations of $1,000 and any integral multiple thereof. If
denominations of Unregistered Securities of any series are not so
established, such Securities shall be issuable in denominations of
$1,000 and $5,000. The Securities of each series shall be
numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the chairman or the officers of the
Issuer executing the same may determine with the approval of the
Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as
provided in or pursuant to the Board Resolution or Resolutions or
indenture supplemental hereto referred to in Section 2.3 or, if not
so specified, each such Unregistered Security shall be dated as of
the date of issuance of the first Unregistered Security of such
series to be issued. The Securities of each series shall bear
interest, if any, from the date, and such interest shall be payable
on the Interest Payment Dates, established as contemplated by
Section 2.3.
The Person in whose name any Registered Security of any series
is registered at the close of business on any Regular Record Date
applicable to such series with respect to any Interest Payment Date
for such series shall be entitled to receive the interest, if any,
payable on such Interest Payment Date notwithstanding any transfer
or exchange of such Registered Security subsequent to such Regular
Record Date and prior to such Interest Payment Date, except if and
to the extent the Issuer shall default in the payment of the
interest due on such Interest Payment Date for such series, in
which case such defaulted interest shall then cease to be payable
to the Holder on such Regular Record Date by virtue of having been
such Holder and shall be paid to the Persons in whose names
Outstanding Registered Securities for such series are registered at
the close of business on a subsequent record date (which shall be
not less than five Business Days prior to the date of payment of
14
such defaulted interest) established by notice given by mail by or
on behalf of the Issuer to the Holders of Registered Securities not
less than 15 days preceding such subsequent record date. Interest
on any Unregistered Securities which is due on any Interest Payment
Date shall be paid to the Holder of the applicable Coupon
appertaining to such Unregistered Security.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer
will cause to be kept at each office or agency to be maintained for
the purpose as provided in Section 3.2 for each series of
Securities a register in which, subject to such reasonable
regulations as it may prescribe, it will provide for the
registration of Registered Securities of each series and the
registration of transfer of Registered Securities of such series.
Such register shall be in written form in the English language or
in any other form capable of being converted into such form within
a reasonable time. At all reasonable times such register or
registers shall be open for inspection by the Trustee. There may
not be more than one register for each series of Securities.
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to
be maintained for the purpose provided in Section 3.2, the Issuer
shall execute and the Trustee shall authenticate and deliver in the
name of the transferee or transferees a new Registered Security or
Registered Securities of such series, Stated Maturity, interest
rate and original issue date in any authorized denominations and of
a like aggregate principal amount and tenor.
Unregistered Securities (except for any temporary global
Unregistered Securities) and Coupons (except for Coupons attached
to any temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, any Security may be
exchanged for a Security of the same series, of like tenor, in
authorized denominations and in an equal aggregate principal amount
upon surrender of such Security at an office or agency to be main-
tained for such purpose in accordance with Section 3.2 or as
specified pursuant to Section 2.3, and the Issuer shall execute,
and the Trustee shall authenticate and deliver in exchange
therefor, the Security or Securities which the Holder making the
exchange shall be entitled to receive bearing a number or other
distinguishing symbol not contemporaneously outstanding. Subject
to the foregoing, (i) a Registered Security of any series (other
than a Registered Global Security, except as set forth below) may
be exchanged for a Registered Security or Securities of the same
series; (ii) if the Securities of any series are issued in both
registered and unregistered form, except as otherwise specified
pursuant to Section 2.3, Unregistered Securities may be exchanged
for a Registered Security or Securities of the same series, but a
Registered Security may not be exchanged for an Unregistered
Security or Securities; and (iii) if Unregistered Securities of any
series are issued in more than one authorized denomination, except
as otherwise specified pursuant to Section 2.3, any such
Unregistered Security or Securities may be exchanged for an
Unregistered Security or Securities of the same series; provided
that in connection with the surrender of any Unregistered
Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default must be surrendered with the
Securities being exchanged. If the Holder of an Unregistered
Security is unable to produce any such unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such exchange may be
effected if the Unregistered Securities are accompanied by payment
in funds acceptable to the Issuer in an
15
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 Issuer and the
Trustee if there is furnished to them such security or indemnity as
they may require to save each of them and any paying agent
harmless. If thereafter the Holder of such Security shall
surrender to any paying agent any such missing Coupon in respect of
which such a payment shall have been made, such Holder shall be
entitled to receive from the Issuer the amount of such payment;
provided, however, that, except as otherwise provided in Section
3.2, interest represented by Coupons shall be payable only upon the
presentation and surrender of those Coupons at an office or agency
located outside the United States. Notwithstanding the foregoing,
in case an Unregistered Security of any series is surrendered at
any such office or agency in exchange for a Registered Security of
the same series of like tenor after the close of business at such
officer 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 subsequent record date and the
before the opening of business at such office or agency on such
subsequent date for the payment of interest in default, such
Unregistered Security shall be surrendered without the Coupon
relating to such Interest Payment Date or subsequent date for
payment, as the case may be, and interest or in interest in
default, as the case may be, will not be payable on such Interest
Payment Date or subsequent date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such
Unregistered Security, but will be payable only to the Holder of
such Coupon when due in accordance with the provisions of this
Indenture. All Securities and Coupons surrendered upon any
exchange or transfer provided for in this Indenture shall be
promptly canceled and disposed of by the Trustee and the Trustee
will deliver a certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of
transfer, exchange, redemption, repurchase or payment shall (if so
required by the Issuer or the Trustee) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in
form satisfactory to the Issuer and the Trustee, duly executed by
the Holder or his attorney duly authorized in writing.
Each Registered Global Security authenticated under this
Indenture shall be registered in the name of the Depositary
designated for such Registered Global Security or a nominee
thereof, and each such Registered Global Security shall constitute
a single security for all purposes of this Indenture.
The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
connection with any exchange or registration of transfer of
Securities. No service charge shall be made for any such
transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15
days next preceding the first mailing of notice of redemption of
Securities of such series to be redeemed, (b) any Securities
selected, called or being called for redemption in whole or in
part, except in the case of any Security to be redeemed in part,
the portion thereof not so to be redeemed, (c) to register the
transfer of or exchange any Security if the Holder thereof has
exercised his right, if any, to require the Issuer to repurchase
such Security in whole or in part, except the portion of such
Security not required to be repurchased or (d) to exchange any
Unregistered Security so selected for redemption, except that such
Unregistered Security may be
16
exchanged for a Registered Security of
that series and like tenor, provided that such Registered Security
shall be simultaneously surrendered for redemption.
Notwithstanding any other provision of this Section 2.8,
unless and until it is exchanged in whole or in part for Securities
in definitive registered form, a Registered Global Security
representing all or a portion of the Securities of a series may not
be transferred except as a whole by the Depositary for such series
to a nominee of such Depositary or by a nominee of such Depositary
to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of
a series represented by one or more Registered Global Securities
notifies the Issuer that it is unwilling or unable to continue as
Depositary for such Registered Securities or is no longer eligible
because it ceased to be a clearing agency registered under the
Exchange Act or any other applicable statute or regulation, the
Issuer shall appoint a successor Depositary with respect to such
Registered Securities. If a successor Depositary for such
Registered Securities is not appointed by the Issuer within 90 days
after the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer's election pursuant to Section 2.3 that
such Registered Securities be represented by one or more Registered
Global Securities shall no longer be effective and the Issuer will
execute, and the Trustee, upon receipt of an Officers' Certificate
of the Issuer for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form without
Coupons, of like tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the
Registered Global Security or Securities representing such
Registered Securities in exchange for such Registered Global
Security or Securities.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of any series issued in
the form of one or more Registered Global Securities shall no
longer be represented by a Registered Global Security or
Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series in
definitive registered form without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities
representing such Registered Securities in exchange for such
Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with
respect to Securities represented by a Registered Global Security,
the Depositary for such Registered Global Security may surrender
such Registered Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such
terms as are acceptable to the Issuer and such Depositary.
Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new
Registered Security or Securities of the same series, of any
authorized denominations as requested by such Person, in an
aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Registered Global
Security; and
17
(ii) to such Depositary a new Registered Global Security
in a denomination equal to the difference, if any, between the
principal amount of the surrendered Registered Global Security
and the aggregate principal amount of Registered Securities
authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without Coupons, in
authorized denominations, such Registered Global Security shall be
canceled by the Trustee or an agent of the Issuer or the Trustee.
Securities in definitive registered form without Coupons issued in
exchange for a Registered Global Security pursuant to this Section
2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent
of the Issuer or the Trustee. The Trustee or such agent shall
deliver such Securities to or as directed by the Persons in whose
names such Securities are so registered.
None of the Issuer, the Trustee, any paying agent or the
Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account
of beneficial ownership interests of a global Security or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
All Securities issued upon any transfer or exchange of
Securities shall be valid and legally binding obligations of the
Issuer, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Notwithstanding anything herein or in the terms of any series
of Securities to the contrary, none of the Issuer, the Trustee or
any agent of the foregoing (any of which, other than the Issuer,
shall rely on an Officers' Certificate and an Opinion of Counsel)
shall be required to exchange any Unregistered Security for a
Registered Security if such exchange would result in adverse
federal income tax consequences to the Issuer (such as, for
example, the inability of the Issuer to deduct from its income, as
computed for federal income tax purposes, the interest payable on
the Unregistered Securities) under then applicable United States
federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any
Coupon appertaining to any Security shall become mutilated, defaced
or be apparently destroyed, lost or stolen, the Issuer in its
discretion may execute, and upon the written request of any officer
of the Issuer, the Trustee shall authenticate and deliver a new
Security of the same series, of like tenor and in equal aggregate
principal amount, bearing a number or other distinguishing symbol
not contemporaneously outstanding, in exchange and substitution for
the mutilated or defaced Security, or in lieu of and in
substitution for the Security so apparently destroyed, lost or
stolen and, if applicable, with Coupons corresponding to the
Coupons appertaining to the Securities so mutilated, defaced,
destroyed, lost or stolen, or in exchange for the Security to which
a mutilated, defaced, destroyed, lost or stolen Coupon appertained
with Coupons appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to
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indemnify and defend and to save each of them harmless and, in
every case of apparent destruction, loss or theft, evidence to
their satisfaction of the apparent destruction, loss or theft of
such Security or Coupon and of the ownership thereof. In the case
of a mutilated or defaced Security or Coupon, the applicant for a
substitute Security or Coupon shall surrender such mutilated or
defaced Security or Coupon to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the
Issuer may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of
the Trustee or its agent) connected therewith. In case any
Security or Coupon which has matured or is about to mature or has
been called for redemption in full shall become mutilated or
defaced or be apparently destroyed, lost or stolen, the Issuer may,
instead of issuing a substitute Security or Coupon, pay or
authorize the payment of the same or the relevant Coupon (without
surrender thereof except in the case of a mutilated or defaced
Security or Coupon), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the
Issuer or the Trustee such security or indemnity as any of them may
require to save each of them harmless from all risks, however
remote, arising as a result of such payment and, in every case of
apparent destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer
or the Trustee evidence to their satisfaction of the apparent
destruction, loss or theft of such Security and of the ownership
thereof.
Every substitute Security or Coupon of any series issued
pursuant to the provisions of this Section by virtue of the fact
that any such Security or Coupon is apparently destroyed, lost or
stolen shall constitute an additional contractual obligation of the
Issuer, whether or not the apparently destroyed, lost or stolen
Security or Coupon shall be at any time enforceable by anyone and
shall be entitled to all the benefits of (but shall be subject to
all the limitations of rights set forth in) this Indenture equally
and proportionately with any and all other Securities or Coupons of
such series duly authenticated and delivered hereunder. All
Securities or Coupons shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment
of mutilated, defaced, or apparently destroyed, lost or stolen
Securities and Coupon and shall preclude any and all other rights
or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement
or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof.
All Securities and Coupons surrendered for payment, repurchase,
redemption, registration of transfer or exchange, or for credit
against any payment in respect of a sinking or analogous fund, if
surrendered to the Issuer or any agent of the Issuer or the Trustee
or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall
be canceled by it; and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of
this Indenture. The Trustee or its agent shall dispose of canceled
Securities and Coupons held by it and deliver a certificate of
disposition to the Issuer unless the Issuer shall direct that
canceled Securities be returned to it. If the Issuer shall acquire
any of the Securities or Coupons, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness
represented by such Securities or Coupons unless and until the same
are delivered to the Trustee for cancellation.
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SECTION 2.11 Temporary Securities. Pending the preparation
of definitive Securities for any series, the Issuer may execute and
the Trustee shall authenticate and deliver temporary Securities for
such series (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Trustee).
Temporary Securities of any series shall be issuable as Registered
Securities without Coupons, or as Unregistered Securities with or
without Coupons attached thereto, of any authorized denomination,
and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by
the Issuer with the concurrence of the Trustee as evidenced by the
execution and authentication thereof. Temporary Securities may
contain such references to any provisions of this Indenture as may
be appropriate. Every temporary Security shall be executed by the
Issuer and be authenticated by the Trustee upon the same conditions
and in substantially the same manner, and with like effect, as the
definitive Securities. Without unreasonable delay the Issuer shall
execute and shall furnish definitive Securities of such series and
thereupon temporary Registered Securities of such series may be
surrendered in exchange therefor without charge at each office or
agency to be maintained by the Issuer for that purpose pursuant to
Section 3.2 and, in the case of Unregistered Securities, at any
agency maintained by the Issuer for such purpose as specified
pursuant to Section 3.2, and the Trustee shall authenticate and
deliver in exchange for such temporary Securities of such series an
equal aggregate principal amount of definitive Securities of the
same series having authorized denominations and, in the case of
Unregistered Securities, having attached thereto any appropriate
Coupons. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture
as definitive Securities of such series, unless otherwise
established pursuant to Section 2.3. The provisions of this Section
are subject to any restrictions or limitations on the issue and
delivery of temporary Unregistered Securities of any series that
may be established pursuant to Section 2.3 (including any provision
that Unregistered Securities of such series initially be issued in
the form of a single global Unregistered Security to be delivered
to a depositary or agency located outside the United States and the
procedures pursuant to which definitive or global Unregistered
Securities of such series would be issued in exchange for such
temporary global Unregistered Security).
ARTICLE THREE
COVENANTS OF THE ISSUER
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SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities
issued hereunder that it will duly and punctually pay or cause to
be paid the principal of and interest on, each of the Securities of
such series (together with any additional amounts payable with
respect to and pursuant to the terms of such Securities) at the
place or places, at the respective times and in the manner provided
in the Securities of such series and in the Coupons, if any,
appertaining thereto and in this Indenture. The interest on
Securities with Coupons attached (together with any additional
amounts payable with respect to such Securities) shall be payable
only upon presentation and surrender of the several Coupons for
such interest installments as are evidenced thereby as they
severally mature. If any temporary Unregistered Security provides
that interest thereon may be paid while such Security is in
temporary form, the interest on any such temporary Unregistered
Security (together with any additional amounts payable with respect
to such Securities) shall be paid, as to the installments of
interest evidenced by Coupons attached thereto, if any, only upon
presentation of such Securities for notation thereon of the payment
of such interest, in each case subject to any restrictions that may
be established pursuant to Section 2.3. The interest on Registered
Securities (together with any additional amounts payable with
respect to such Security ) shall be payable only to or upon the
written order of the Holders thereof entitled thereto and, at the
option of the Issuer, may be paid by wire transfer (subject to the
procedures of the paying agent) or by mailing checks for such
interest payable to or upon the written order of such Holders at
their last addresses as they appear on the registry books of the
Issuer.
SECTION 3.2 Offices for Payments, etc. So long as any
Registered Securities are authorized for issuance pursuant to this
Indenture or remain Outstanding, the Issuer will maintain in the
Borough of Manhattan, The City of New York, an office or agency
where the Registered Securities of each series may be surrendered
for payment and where the Registered Securities of each series may
be surrendered for registration of transfer or exchange as is
provided in this Indenture.
The Issuer will maintain one or more offices or agencies in a
city or cities located outside the United States (including any
city in which such an office or agency is required to be maintained
under the rules of any stock exchange on which the Securities of
such series are listed) where the Unregistered Securities, if any,
of each series and Coupons, if any, appertaining thereto may be
surrendered for payment or exchange. No payment on or exchange of
any Unregistered Security or Coupon will be made upon surrender of
such Unregistered Security or Coupon at an office or agency of the
Issuer within the United States nor will any payment be made by
transfer to an account in, or by mail to an address in, the United
States unless pursuant to applicable United States laws and
regulations then in effect such payment can be made without adverse
tax consequences to the Issuer. Notwithstanding the foregoing,
payments in Dollars of Unregistered Securities of any series and
Coupons appertaining thereto which are payable in Dollars may be
made at an agency of the Issuer maintained in The City of New York
if such payment in Dollars at each agency maintained by the Issuer
outside the United States for payment on such Unregistered
Securities is illegal or effectively precluded by exchange controls
or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, the City
of New York, an office or agency where notices and demands to or
upon the Issuer in respect of the Securities of any series, the
Coupons appertaining thereto, or this Indenture may be served.
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The Issuer will give to the Trustee prompt written notice of
the location of any such office or agency and of any change of
location thereof. The Issuer hereby initially designates the
Corporate Trust Office of the Trustee maintained in the City of New
York as the office or agency for each such purpose to be carried
out in New York. The Issuer shall designate an office or agency
outside the United States for each such purpose relating to
Unregistered Securities prior to the issuance of any Unregistered
Securities. In case the Issuer shall fail to maintain any such
office or agency or shall fail to provide such notice of the
location or of any change in the location thereof, presentations
and demands may be made and notices may be served at the Corporate
Trust Office.
The Issuer will cause to be kept a register at the office of
the Security Registrar in which, subject to such reasonable
regulations as it may prescribe, the Issuer will provide for the
registration of Securities and of transfers of Securities. The
Trustee is hereby initially appointed Security Registrar for the
purpose of registering Securities and transferring Securities as
herein provided.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of any series
and any Coupons appertaining thereto may be presented for payment,
where the Securities of that series may be presented for exchange
as provided in this Indenture and pursuant to Section 2.3 and where
the Registered Securities of that series may be presented for
registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the
Issuer may deem desirable or expedient; provided, however, that no
such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain the agencies provided for in
the first three paragraphs of this Section 3.2. The Issuer will
give to the Trustee prompt written notice of any such designation
or rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a vacancy
in the office of Trustee, will appoint, in the manner provided in
Section 6.9, a Trustee, so that there shall at all times be a
Trustee with respect to each series of Securities hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall appoint
a paying agent other than the Trustee with respect to the
Securities of any series, it will cause such paying agent to
execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received by it as such
agent for the payment of the principal of or interest on the
Securities of such series (whether such sums have been paid to
it by the Issuer or by any other obligor on the Securities of
such series) in trust for the benefit of the Holders of the
Securities of such series or of the Trustee;
(b) that it will give the Trustee notice of any failure
by the Issuer (or by any other obligor on the Securities of
such series) to make any payment of the principal of or
interest on the Securities of such series when the same shall
be due and payable;
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(c) that it will, at any time during the continuance of
any such failure, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such
paying agent; and
(d) that it will in all respects comply with the
provisions of the Trust Indenture Act of 1939 applicable to
such paying agent.
The Issuer will, on or prior to each due date of the principal
of or interest on the Securities of such series, deposit with the
paying agent a sum sufficient to pay such principal or interest so
becoming due, such sum to be held as provided in the Trust
Indenture Act of 1939, and (unless such paying agent is the
Trustee) the Issuer will promptly notify the Trustee of any failure
to take such action.
If the Issuer shall act as its own paying agent with respect
to the Securities of any series, it will, on or before each due
date of the principal of or interest on the Securities of such
series, set aside, segregate and hold in trust for the benefit of
the Holders of the Securities of such series or the Coupons
appertaining thereto a sum sufficient to pay such principal or
interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided. The Issuer
will promptly notify the Trustee of any failure to take such
action.
Anything in this Section to the contrary notwithstanding, but
subject to Section 10.1, the Issuer may at any time, for the
purpose of obtaining a satisfaction and discharge with respect to
one or more or all series of Securities hereunder or with respect
to this Indenture or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust for any such series by the
Issuer or any paying agent hereunder, as required by this Section,
such sums to be held by the Trustee upon the trusts herein
contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is
subject to the provisions of Sections 10.3 and 10.4.
SECTION 3.5 Written Statement to Trustee. The Issuer will
deliver to the Trustee on or before March 31 in each year
(beginning with March 31, ____) a brief certificate (which need not
comply with Section 11.5) from the Issuer, signed by its principal
executive officer, principal financial officer, or principal
accounting officer, stating that in the course of the performance
by the signer of his duties as an officer of the Issuer, he would
normally have knowledge of any Default or non-compliance by the
Issuer in the performance or fulfillment of any covenant, agreement
or condition of the Issuer, contained in this Indenture, stating
whether or not he has knowledge of any such Default or non-
compliance and, if so, specifying each such Default or non-
compliance of which the signer has knowledge and the nature
thereof.
SECTION 3.6 Corporate Existence. Subject to Article Nine,
the Issuer will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence,
rights and franchises; provided that the Issuer shall not be
required to preserve any such right or franchise if the Issuer
shall determine that the preservation thereof is no longer
desirable in the
23
conduct of its business and that the loss thereof
is not disadvantageous in any material respect to the Holders of
any series of Securities.
SECTION 3.7 Luxembourg Publications. In the event of the
publication of any notice pursuant to Section 5.11, 6.9, 6.10, 8.2,
10.4, 12.2 or 12.4, the party making such publication in the City
of New York and London shall also, to the extent that notice is
required to be given to Holders of Securities of any series by
applicable Luxembourg law or stock exchange regulation, as
evidenced by any Officers' Certificate delivered to such party,
make a similar publication in Luxembourg.
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND
REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names
and Addresses of Securityholders. The Issuer and any other obligor
on the Securities each covenants and agrees that it will furnish or
cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the
Holders of the Securities of each series:
(a) semiannually and not more than 15 days after each
Regular Record Date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any
such request as of a date not more than 15 days prior to the
time such information is furnished,
provided that if and so long as the Trustee shall be the Security
Registrar for such series and all of the Securities of any series
are Registered Securities, such list shall not be required to be
furnished for such series.
SECTION 4.2 Preservation and Disclosure of Securityholders'
Lists.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, all information as to the names and
addresses of the Holders of each series of Securities (i) contained
in the most recent list furnished to the Trustee as provided in
Section 4.1, (ii) received by the Trustee in its capacity as
Security Registrar for such series, if so acting, and (iii) filed
with it within two preceding years pursuant to Section 313(c)(2) of
the Trust Indenture Act of 1939. The Trustee may destroy any list
furnished to it as provided in Section 4.1 upon receipt of a new
list so furnished.
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or under
any series of the Securities, and the corresponding rights and
duties of the Trustee, shall be as provided by the Trust Indenture
Act of 1939.
(c) Every Holder of Securities, by receiving and holding
the same, agrees with the Issuer and the Trustee that none of the
Issuer, the Trustee or any agent of any of the Issuer or the
24
Trustee shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to
the Trust Indenture Act of 1939.
SECTION 4.3 Reports by the Issuer. The Issuer shall file
with the Trustee and the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act of
1939 at the times and in the manner provided pursuant to such Act,
provided that any such information, documents or reports required
to be filed with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act ("SEC Reports") shall be filed with the Trustee
within 15 days after the same is so required to be filed with the
Commission.
SECTION 4.4 Reports by the Trustee. (a) Within 60 days
after _________ of each year, commencing with the first _____
following the first issuance of Securities pursuant to Section 2.4,
if required by Section 313(a) of the Trust Indenture Act of 1939,
the Trustee shall transmit, pursuant to Section 313(c) of the Trust
Indenture Act, a brief report dated as of such ______ with respect
to any of the events specified in said Section 313(a) which may
have occurred since the later of the immediately preceding
___________________ and the date of this Indenture.
(b) The Trustee shall transmit the reports required by
Section 313(b) of the Trust Indenture Act and Section 5.11 hereof
at the times specified therein.
(c) Reports pursuant to this Section shall be
transmitted in the manner and to the Persons required by Section
313(c) of the Trust Indenture Act of 1939.
(d) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
stock exchange upon which the Securities of any series are listed,
with the Commission and with the Issuer. The Issuer will promptly
notify the Trustee when the Securities of any series are listed on
any stock exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default," with respect to
Securities of any series wherever used herein, means one of the
following events which shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of any installment of
interest upon any of the Securities of such series or any
Coupon appertaining thereto (together with any additional
amounts payable with respect to such Securities) as and when
the same shall become due and payable, and continuance of such
default for a period of 30 days; or
25
(b) default in the payment of all or any part of the
principal of any of the Securities of such series as and when
the same shall become due and payable either at their Stated
Maturity, upon any redemption by declaration or otherwise;
provided that, if such default is the result of an optional
redemption by the Holders of such Securities, the amount
thereof shall be in excess of $50,000,000 or the equivalent
thereof in any currency or composite currency; or
(c) failure on the part of the Issuer duly to comply
with, observe or perform any of the other covenants or
agreements on the part of the Issuer contained in, or
provisions of, the Securities of any series or this Indenture
(other than a covenant or agreement which is not applicable to
the Securities of such series), but only if such default shall
not have been remedied for a period of 60 days after the date
on which written notice specifying such failure, stating that
such notice is a "Notice of Default" hereunder and demanding
that the Issuer remedy the same, shall have been given by
registered or certified mail, return receipt requested, to the
Issuer by the Trustee, or to the Issuer and the Trustee by the
Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of such series of Securities; or
(d) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Issuer in an involuntary case or proceeding under any
applicable Insolvency Law or (B) a decree or order adjudging
the Issuer a bankrupt or insolvent under an applicable
Insolvency Law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official of the Issuer or of any substantial part of the
property of the Issuer or ordering the winding up or
liquidation of the affairs of the Issuer and the continuance
of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60
consecutive days; or
(e) the commencement by the Issuer of a voluntary case
or proceeding under any applicable Insolvency Law or of any
other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by the Issuer to the entry of a
decree or order for relief in respect of the Issuer in an
involuntary case or proceeding under any applicable Insolvency
Law or to the commencement of any bankruptcy or insolvency
case or proceeding against the Issuer or the filing by the
Issuer of a petition, answer or consent seeking reorganization
or relief under any applicable Insolvency Law, or the consent
by the Issuer to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar
official of the Issuer or of any substantial part of the
property of the Issuer or the making by the Issuer of an
assignment for the benefit of creditors, or the admission by
the Issuer in writing of its inability to pay its debts
generally as they become due, or the taking of corporate
action (which shall involve the passing of one or more Board
Resolutions by the Issuer) in furtherance of any such action,
(f) failure by the Issuer to make any payment at
maturity (or upon any redemption), including any applicable
grace period, in respect of indebtedness, which term as used
herein means obligations (other than the Securities of such
series or nonrecourse obligations) of, or guaranteed or
assumed by, the Issuer for borrowed money or evidenced
26
by
bonds, debentures, notes or other similar instruments ("Debt")
in an amount in excess of $50,000,000 or the equivalent
thereof in any other currency or composite currency and such
failure shall have continued for a period of thirty days after
written notice thereof shall have been given by registered or
certified mail, return receipt requested, to the Issuer by the
Trustee, or to the Issuer and the Trustee by the Holders of
not less than 25% in aggregate principal amount of the
Outstanding Securities of such series affected thereby;
(g) a default with respect to any Debt, which default
results in the acceleration of Debt in an amount in excess of
$50,000,000 or the equivalent thereof in any other currency or
composite currency without such Debt having been discharged or
such acceleration having been cured, waived, rescinded or
annulled for a period of thirty days after written notice
thereof shall have been given by registered or certified mail,
return receipt requested, to the Issuer by the Trustee, or to
the Issuer and the Trustee by the Holders of not less than 25%
in aggregate principal amount of the Outstanding Securities of
such series affected thereby; or
(h) any other Event of Default provided for with respect
to Securities of that series in the supplemental indenture
under which such series is issued or in the terms of
Securities of such series;
provided that if any such failure, default or acceleration referred
to in clauses (f), (g) and (h) above shall cease or be cured,
waived, rescinded or annulled, then the Event of Default hereunder
by reason thereof, and any acceleration under this Section 5.1
resulting solely therefrom, shall be deemed likewise to have been
thereupon cured, waived, rescinded or annulled without further
action on the part of either the Trustee or any of the
Securityholders.
If an Event of Default (other than those specified in Section
5.1(d) or (e)) with respect to one or more series of Securities
then Outstanding) occurs and is continuing, then, and in each and
every such case, except for any series of Securities the principal
of which shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then
Outstanding hereunder (each series voting as a separate class) by
notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the
Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be
specified in the terms of such series) of all Securities of the
affected series, and the interest accrued thereon, if any (together
with any additional amounts payable with respect to such
Securities), to be due and payable immediately, and upon any such
declaration, the same shall become immediately due and payable. If
an Event of Default specified in Section 5.1(d) or (e) occurs, the
entire principal (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in
terms thereof) of all the Securities then Outstanding, and interest
accrued thereon, if any, (together with any additional amounts
payable with respect to such Securities) shall become and be
immediately due and payable without any declaration or other act on
the part of the Trustee or any Securityholder.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the
Securities of such series are Original Issue Discount Securities,
such portion of
27
the principal as may be specified in the terms
thereof) of the Securities of any series shall have been so
declared due and payable, and before any judgment or decree for the
payment of the monies due shall have been obtained or entered as
hereinafter provided, the Issuer shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of
interest (together with any additional amounts payable with respect
to such Securities) upon all the Securities of such series and the
principal of any and all Securities of each such series which shall
have become due otherwise than by acceleration (with interest upon
such principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of
interest, (together with any additional amounts payable with
respect to such Securities) at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of each such
series (or the respective rates of interest or Yields to Maturity
of all the Securities, as the case may be) to the date of such
payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor
Trustee, its agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of negligence or bad
faith, and if any and all Events of Default under the Indenture,
other than the non-payment of the principal of Securities which
shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein -- then and in
every such case the Holders of a majority in aggregate principal
amount of all the Securities of each such series (each series
voting as a separate class) then Outstanding, by written notice to
the Issuer and the Trustee, may waive all defaults with respect to
such series and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default or shall impair
any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions
hereof, then, from and after such declaration, unless such
declaration has been rescinded and annulled, the principal amount
of such Original Issue Discount Securities shall be deemed, for all
purposes hereunder, to be such portion of the principal thereof as
shall be due and payable as a result of such acceleration, and
payment of such portion of the principal thereof as shall be due
and payable as a result of such acceleration, together with accrued
interest, if any, thereon and all other amounts owing thereunder,
shall constitute payment in full of such Original Issue Discount
Securities.
SECTION 5.2 Collection of Debt by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case Default shall be made
in the payment of any installment of interest on any of the
Securities of any series when such interest shall have become due
and payable and such Default shall have continued for a period of
30 days or (b) in case Default shall be made in the payment of all
or any part of the principal of any of the Securities of any series
when the same shall have become due and payable, whether upon the
Stated Maturity of the Securities of such series or upon any
redemption or by declaration or otherwise, other than a Default
that is the result of an optional redemption by the Holders of
Securities of any series, the amount of which is not in excess of
$50,000,000 or the equivalent thereof in any currency or composite
currency, unless such Default shall have continued for a period of
60 days after giving a notice with respect thereto under Section
5.1(c), then upon demand of the Trustee, the Issuer will pay to the
Trustee for the benefit of the Holders of the Securities of such
series the whole amount that then shall have become due and
28
payable
on all such Securities of such series, and such Coupons, if any,
for principal, or interest, as the case may be (with interest to
the date of such payment upon the overdue principal and, to the
extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same
rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of
such series); and in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee and each
predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except
as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to
the Holders, whether or not the principal of and interest on
Securities of such series be overdue.
If an Event of Default occurs and is continuing, the Trustee,
in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any action or proceedings at
law or in equity to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceeding as the
Trustee may deem most effectual to protect and enforce any such
rights, and may prosecute any such action or proceedings to
judgment or final decree, and may enforce any such judgment or
final decree against the Issuer or any other obligor upon the
Securities of such series and collect in the manner provided by law
out of the property of the Issuer or any other obligor upon the
Securities of such series, wherever situated the monies adjudged or
decreed to be payable.
In the case of any judicial proceeding relating to the Issuer
or any other obligor upon the Securities of such series, or the
property or creditors of the Issuer or any such obligor, the
Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized
under the Trust Indenture Act of 1939 in order to have claims of
the Holders and the Trustee allowed in any such proceeding. In
addition, unless prohibited by applicable law and regulations, the
Trustee shall be entitled and empowered to vote on behalf of the
Holders of Securities of any series in any election of a trustee or
a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceeding or a Person providing
similar functions in comparable proceedings.
The Trustee shall be authorized to collect and receive any
monies or other property payable or deliverable on any such claims,
and to distribute all amounts received with respect to the claims
of the Securityholders and of the Trustee on their behalf, and any
trustee, receiver, or liquidator, custodian or other similar
official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except
as a result of negligence or bad faith and all other amounts due to
the Trustee or any predecessor Trustee pursuant to Section 6.6.
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Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or
the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such
proceeding except, as aforesaid, to vote for the election of a
trustee in bankruptcy or similar Person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or Coupons
appertaining to such series, may be prosecuted and enforced by the
Trustee without the possession of any of the Securities of such
series or Coupons appertaining to such series or the production
thereof on any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any
recovery of judgment, subject to the payment of the expenses,
disbursements, advances and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the Securities
of such series or Coupons appertaining thereto in respect of which
action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party) the Trustee shall
be held to represent all the Holders of the Securities or Coupons
appertaining to such Securities in respect of which such action was
taken, and it shall not be necessary to make any Holders of such
Securities or Coupons appertaining to such Securities, parties to
any such proceedings.
SECTION 5.3 Application of Proceeds. Any monies collected by
the Trustee pursuant to this Article in respect of any series shall
be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such monies on account
of principal or interest, upon presentation of the several
Securities and Coupons appertaining thereto in respect of which
monies have been collected and stamping (or otherwise noting)
thereon the payment, or issuing Securities of the same series, of
like tenor, in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable
to the Securities of such series in respect of which monies
have been collected, including any and all amounts due the
Trustee under Section 6.6;
SECOND: In case the principal of the Securities of such
series in respect of which monies have been collected shall
not have become and be then due and payable, to the payment of
interest on the Securities of such series in default in the
order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of
interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably
to the Persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Securities of such
series in respect of which monies have been collected shall
have become and shall be then due and payable, to the
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payment
of the whole amount then owing and unpaid upon all the
Securities of such series for principal and interest, with
interest upon the overdue principal; and (to the extent that
such interest has been collected by the Trustee) upon overdue
installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such
series; and in case such monies shall be insufficient to pay
in full the whole amount so due and unpaid upon the Securities
of such series, then to the payment of such principal and
interest or Yield to Maturity, without preference or priority
of principal over interest or Yield to Maturity, or of
interest or Yield to Maturity over principal, or of any
installment of interest over any other installment of
interest, or of any Security of such series over any other
Security of such series ratably to the aggregate of such
principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or any other Person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, the
Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and
enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of
the exercise of any power granted in this Indenture or to enforce
any other legal or equitable right vested in the Trustee by this
Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee or any Securityholder shall have
proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee or
to such Securityholder, then and in every such case, subject to any
determination in such proceeding, the Issuer, the Trustee and the
Securityholders shall be restored severally and respectively to
their former positions and rights hereunder, and thereafter all
rights, remedies and powers of the Issuer, the Trustee and the
Securityholders shall continue as though no such proceedings had
been taken.
SECTION 5.6 Limitations on Suits by Securityholders. No
Holder of any Security of any series or of any Coupon appertaining
thereto shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding,
judicial or otherwise, at law or in equity or in bankruptcy or
otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or
other similar official or for any other remedy hereunder, unless
(i) such Holder previously shall have given to the Trustee written
notice of a continuing Event of Default as hereinbefore provided,
(ii) the Holders of not less than 25% in aggregate principal amount
of the Securities of such affected series then Outstanding, each
series treated as a separate class, shall have made written request
upon the Trustee to institute such action or proceedings in its own
name as trustee hereunder and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby; (iii)
the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such
action or proceedings; and (iv) no direction inconsistent with such
written request shall have been given to the Trustee pursuant to
Section 5.9;
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it being understood and intended, and being expressly
covenanted by the Holder of every Security or Coupon with every
other Holder of the Securities of such series or Coupons and the
Trustee, that no one or more Holders of Securities of such series
shall have any right in any manner whatever by virtue or by
availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holder of Securities or Coupons
appertaining to such Securities, or to obtain or seek to obtain
priority over or preference to any other such Holder or to enforce
any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all
Holders of Securities of the applicable series and Coupons
appertaining to such Securities. For the protection and
enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
SECTION 5.7 Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in
this Indenture and any provision of any Security, the right of any
Holder of any Security or Coupon to receive payment of the
principal of and interest on (together with any additional amounts
payable with respect to and pursuant to the terms of such
Securities) such Security or Coupon and any interest in respect of
a Default in the payment of any such amounts, on or after the
respective due dates expressed in such Security or Coupon or
Redemption Dates provided for therein or to institute suit for the
enforcement of any such payment rights on or after such respective
dates shall not be impaired or affected without the consent of such
Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as provided in Section 2.9 and 5.6,
no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders of Securities or Coupons is intended to be
exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of any of
the Securities or Coupons to exercise any right or power accruing
upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein;
and, subject to Section 5.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Holders of Securities
or Coupons may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Holders of
Securities or Coupons.
SECTION 5.9 Control by Securityholders. The Holders of a
majority in aggregate principal amount of the Securities of any
series affected at the time Outstanding 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 by this Indenture with respect to or
for the benefit of such Securities of such series; provided that
such direction shall not be otherwise than in accordance with
applicable law and the provisions of this Indenture and provided
further that (subject to the provisions of Section 6. 1) the
Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding
32
so directed may not be lawfully taken
or that the action or proceeding so directed may expose the Trustee
to personal liability or if the Trustee in good faith by its board
of directors or the executive committee thereof shall so determine
that the actions or forbearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders
of the Securities of all series so affected not joining in the
giving of said direction, it being understood that (subject to
Section 6.1) the Trustee shall have no duty to ascertain whether or
not such actions or forbearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the
Trustee and which is not inconsistent with such direction by
Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Securities
of any series as provided in Section 5.1, the Holders of a majority
in aggregate principal amount of the Securities of any series at
the time Outstanding with respect to which an Event of Default
shall have occurred and be continuing may on behalf of the Holders
of all the Securities of such series waive any past Default or
Event of Default hereunder with respect to the Securities of such
series and its consequences, except a Default (a) in the payment of
principal or interest on any Security of such series or (b) in
respect of a covenant or provision hereof which cannot be modified
or amended without the consent of the Holder of each Security
affected.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event
of Default arising therefrom shall be deemed to have been cured,
and not to have occurred 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 consequent thereon. In the
case of any such waiver, the Issuer, the Trustee and the Holders of
all such Securities shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or impair any right consequent
thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall, within
ninety days after the occurrence of a default with respect to the
Securities of any series, give notice of all defaults with respect
to that series known to the Trustee (i) if any Unregistered
Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in
the Borough of Manhattan, The City of New York and at least once in
an Authorized Newspaper in London (and, if required by Section 3.7,
at least once in an Authorized Newspaper in Luxembourg) and (ii) to
all Holders of Securities of such affected series in the manner and
to the extent provided in Section 4.4(c), unless such defaults
shall have been cured before the mailing or publication of such
notice (the term "default" or "defaults" for the purposes of this
Section 5.11 being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, an
Event of Default); provided that, except in the case of default in
the payment of the principal of or interest on any of the
Securities of such series, or in the payment of any sinking or
purchase fund installment on such series, the Trustee shall be
protected in withholding such notice if and so long as the Board of
Directors, the executive committee, or a trust committee of
directors or trustees and/or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the
interests of the Securityholders.
33
SECTION 5.12 Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each Holder
of any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture or
in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such
suit other than the Trustee of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any
party litigant in such suit including the Trustee, 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 Securityholder or group of Securityholders of any
series holding in the aggregate more than 10% in aggregate
principal amount of the Securities of such series Outstanding, or
to any suit instituted by any Securityholder for the enforcement of
the payment of the principal of or interest on any Security on or
after the due date expressed in such Security or any date fixed for
redemption.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default. With respect to the Holders of
any series of Securities issued hereunder, the Trustee, prior to
the occurrence of an Event of Default with respect to the
Securities of a particular series, and after the curing or waiving
of all Events of Default which may have occurred with respect to
such series, undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture. In case an Event
of Default with respect to the Securities of a particular series
has occurred (which has not been cured or waived) the Trustee shall
exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing
or waiving of all such Events of Default with respect to such
series which may have occurred:
(i) the duties and obligations of the Trustee
with respect to the Securities of any series shall be
determined solely by the express provisions of this Indenture,
and the Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions
furnished to the Trustee and
34
conforming to the requirements of
this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent
facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of Holders pursuant to Section
5.9 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there
shall be reasonable ground for believing that the repayment of such
funds or adequate indemnity from the Issuer against such liability
is not reasonably assured to it.
SECTION 6.2 Certain Rights of the Trustee. Subject to
Section 6.1:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
Officers' Certificate or any other certificate, statement,
instrument, opinion, report, notice, request, direction.
consent, order, bond, debenture, note, coupon, security or
other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the
Issuer mentioned herein shall be sufficiently evidenced by an
Officers' Certificate (unless other evidence in respect
thereof be herein specifically prescribed), and any Board
Resolution of the Issuer may be evidenced to the Trustee by a
copy thereof certified by the secretary or assistant secretary
of the Issuer;
(c) the Trustee may consult with counsel and any written
advice or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith
and in reliance thereon in accordance with such advice or
Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Indenture at
the request, order or direction of any of the Securityholders
pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
35
(e) the Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion, rights or powers
conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of
Default, 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, consent, order, approval, appraisal,
bond, debenture, note, coupon, security, or other paper or
document unless requested in writing so to do by the Holders
of not less than a majority in aggregate principal amount of
the Securities of all series affected; provided that, if the
payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable
expenses of every such examination shall be paid by the Issuer
or, if paid by the Trustee or any predecessor trustee, shall
be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys not regularly in its employ
and the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed
with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof. The recitals
contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of
the Issuer and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representation as to
the validity or sufficiency of this Indenture or of the Securities.
The Trustee shall not be accountable for the use or application by
the Issuer of any of the Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities or
Coupons; Collections, etc, The Trustee or any agent of the Issuer
or the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Securities or Coupons with the same rights
it would have if it were not the Trustee or such agent and, subject
to Section 6.12 and Section 310(b) of the Trust Indenture Act of
1939 may otherwise deal with the Issuer and receive, collect, hold
and retain collections from the Issuer with the same rights it
would have if it were not the Trustee or such agent.
SECTION 6.5 Monies Held by Trustee. Subject to the
provisions of Section 10.4 hereof, all monies received by the
Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not
be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest
on any monies received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to,
36
reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or
made by or on behalf of it in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and
other Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad
faith. The Issuer also covenants to indemnify the Trustee and each
predecessor Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its
duties hereunder, including but not limited to the costs and
expenses of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligations of the Issuer
under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional
indebtedness shall be a senior claim to that of the Securities upon
all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of or
interest on particular Securities or Coupons, and the Securities
are hereby subordinated to such senior claim. When the Trustee
incurs expenses or renders services in connection with an Event of
Default specified in Section 5.1 or in connection with Article Five
hereof, the expenses (including the reasonable fees and expenses of
its counsel) and the compensation for the services in connection
therewith are intended to constitute expenses of administration
under any bankruptcy law.
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 6.1 and 6.2, whenever in the
administration of the trusts of this Indenture the Trustee shall
deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence
or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by
it under the provisions of this Indenture upon the faith thereof.
SECTION 6.8 Persons Eligible for Appointment as Trustee. The
Trustee for each series of Securities hereunder shall at all times
be a corporation organized and doing business under the laws of the
United States of America or of any State or the District of
Columbia having a combined capital and surplus of at least
$50,000,000, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination
by Federal, State or District of Columbia authority. If such
corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent
report of condition so published. At no time shall the Trustee be
an obligor, or directly or indirectly, control, be controlled by,
or under the common control with any obligor upon any Securities
issued hereunder. In case at any time
37
the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect
specified in Section 6.9.
The provisions of this Section 6.8 are in furtherance of and
subject to Section 310(a) of the Trust Indenture Act of 1939.
SECTION 6.9 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or
all series of Securities by giving written notice of resignation to
the Issuer. Upon receiving such notice of resignation, the Issuer
shall promptly appoint a successor trustee or trustees with respect
to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors of the Issuer, one
copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee or trustees. If no
successor trustee shall have been so appointed with respect to any
series and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of
a successor trustee, or any Securityholder who has been a bona fide
Holder of a Security or Securities of the applicable series for at
least six months may, subject to the provisions of Section 5.12, on
behalf of himself and all others similarly situated, petition any
such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall
occur:
(i) the Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act of
1939 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who
has been a bona fide Holder of a Security or Securities for at
least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.8 or Section
310(a) of the Trust Indenture Act of 1939 and shall fail to
resign after written request therefor by the Issuer or by any
such Securityholder; or
(iii) the Trustee shall become incapable of
acting with respect to any series of Securities, or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator
of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with
respect to the applicable series of Securities and appoint a
successor trustee for such series by written instrument, in
duplicate, executed by order of the Board of Directors of the
Issuer, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 5.12, any Securityholder who
has been a bona fide Holder of a Security or Securities for at
least six months may on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor
38
trustee
with respect to such series. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal
amount of the Securities of each series at the time outstanding may
at any time remove the Trustee with respect to such series and
appoint a successor trustee with respect to such series by
delivering to the Trustee so removed, to the successor trustee so
appointed and to the Issuer the evidence provided for in Section 7.
1 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with
respect to any series and any appointment of a successor trustee
with respect to such series pursuant to any of the provisions of
this Section 6.9 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 6.10.
(e) The Issuer shall give notice of each resignation and
each removal of the Trustee of each series of Securities by mailing
written notice of such an event by first-class mail, postage
prepaid, to the Holders of Registered Securities of such series as
their names and addresses appear in the Security register. If any
Unregistered Securities of a series affected are then Outstanding,
notice of such resignation shall be given to the Holders thereof,
(i) by publication at least once in an Authorized Newspaper in the
Borough of Manhattan, the City of New York, and at least once in
an Authorized Newspaper in London (and, if required by Section 3.7,
at least once in an Authorized Newspaper in Luxembourg) and (ii) by
mailing notice to those Holders of Unregistered Securities who have
furnished their names and addresses to the Trustee for such purpose
within the two years preceding the giving of such notice.
SECTION 6.10 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.9 shall
execute and deliver to the Issuer and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed
or conveyance, shall become vested with all rights, powers, duties
and obligations of its predecessor hereunder with respect to such
series, with like effect as if originally named as trustee for such
series hereunder; but, nevertheless, on the written request of the
Issuer or of the successor trustee, upon payment of its charges
then unpaid, the trustee ceasing to act shall, subject to Section
10.4, pay over to the successor trustee all monies at the time held
by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers,
duties and obligations. Upon request of any such successor
trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any trustee
ceasing to act as such shall, nevertheless, retain a prior claim
upon all property or funds held or collected by it to secure any
amounts then due to it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the
predecessor Trustee and each successor trustee with respect to the
Securities of any applicable series shall execute and deliver an
indenture supplemental hereto which shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the
rights,
39
powers, trusts and duties of the predecessor Trustee with
respect to the Securities of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such trustees co-
trustees of the same trust and that each such trustee shall be
trustee of a trust or trusts under separate indentures.
No successor trustee with respect to any series of Securities
shall accept appointment as provided in this Section 6. 10 unless
at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 310(b) of the Trust
Indenture Act of 1939 and eligible under the provisions of Section
6.8 and Section 310(a) of the Trust Indenture Act of 1939.
Upon acceptance of appointment by a successor trustee for a
series of Securities as provided in this Section 6. 10, the Issuer
shall (i) mail notice thereof by first-class mail to the Holders of
Registered Securities of such series at their last addresses as
they shall appear in the Security register, or (ii) in the case of
Holders of Unregistered Securities of such series, publish such
notice once in an Authorized Newspaper in the Borough of Manhattan,
The City of New York, and at least once in an Authorized Newspaper
in London (and, if required by Section 3.7, at least once in an
Authorized Newspaper in Luxembourg) and mail such notice to those
Holders of Unregistered Securities of such series who have filed
their names and addresses with the Trustee for such purpose within
two years preceding the giving of such notice. Each such notice
shall include the name of the successor trustee for such series and
the address of the Corporate Trust Office. If the acceptance of
appointment is substantially contemporaneous with the resignation,
then the notice called for by the preceding sentence may be
combined with the notice called for by Section 6.9. If the Issuer
fails to provide such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall
cause such notice to be provided at the expense of the Issuer.
SECTION 6.11 Merger, Conversion, Consolidation or Succession
to Business of Trustee. 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 qualified under
the provisions of Section 310(b) of the Trust Indenture Act of 1939
and eligible under the provisions of Section 6.8 and Section 310(a)
of the Trust Indenture Act of 1939, without the execution or filing
of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the
Securities of any series shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and
deliver such Securities so authenticated; and, in case at that time
any of the Securities of any series shall not have been
authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in
the name of the successor trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the
Securities
40
of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided, that the right to
adopt the certificate of authentication of any predecessor Trustee
or to authenticate Securities of any series in the name of any
predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.12 Preferential Collection of Claims Against the
Issuer. If and when the Trustee shall be or become a creditor of
the Issuer (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of the Trust Indenture Act of
1939 regarding the collection of claims against the Issuer (or any
such other obligor).
SECTION 6.13 Appointment of Authenticating Agent. As long as
any Securities of a series remain Outstanding, the Trustee may, by
an instrument in writing, appoint with the approval of the Issuer
an authenticating agent (the "Authenticating Agent") which shall be
authorized to act on behalf of the Trustee to authenticate
Securities issued upon exchange, registration of transfer, partial
redemption or pursuant to Section 2.9. Securities of each such
series authenticated by such Authenticating Agent shall be entitled
to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever
reference is made in this Indenture to the authentication and
delivery of Securities of any series by the Trustee or to the Trus-
tee's Certificate of Authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by
an Authenticating Agent for such series and a Certificate of
Authentication executed on behalf of the Trustee by such
Authenticating Agent. Such Authenticating Agent shall at all times
be a corporation organized and doing business under the laws of the
United States of America or of any State, authorized under such
laws to exercise corporate trust powers, having a combined capital
and surplus of at least $5,000,000 (determined as provided in
Section 6.9 with respect to the Trustee) and subject to supervision
or examination by Federal or State authority.
Any corporation into which any 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 any Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent
with respect to all series of Securities for which it served as
Authenticating Agent without the execution or filing of any paper
or any further act on the part of the Trustee or such
Authenticating Agent. Any Authenticating Agent may at any time,
and if it shall cease to be eligible shall, resign by giving
written notice of resignation to the Trustee and to the Issuer.
The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice thereof to the
Authenticating Agent and to the Issuer. Upon receiving such a
notice of resignation or upon such a termination, or in case at any
time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.13 with respect to
one or more series of Securities, the Trustee may upon receipt of
a Company Order appoint a successor Authenticating Agent which
shall be acceptable to the Issuer and the Issuer shall provide
notice of such appointment to all Holders of Securities of such
series in the manner and to the extent provided in Section 11.4.
Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers,
duties and responsibilities of its predecessor hereunder,
41
with like
effect as if originally named as Authenticating Agent. The Issuer
agrees to pay to the Authenticating Agent for such series from time
to time reasonable compensation. The Authenticating Agent for the
Securities of any series shall have no responsibility or liability
for any action taken by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4 and, as agent of the Trustee, 7.3 shall
be applicable to any Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by
Securityholders of any or all series may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Securityholders in person or by agent duly appointed
in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of
any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to
Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 7.2 Proof of Execution of Instruments and of Holding
of Securities. Subject to Sections 6.1 and 6.2, the execution of
any instrument by a Securityholder or his agent or proxy may be
proved in the following manner:
(a) The fact and date of the execution by any Holder or
his agent or proxy of any instrument, or the authority of such
an agent or proxy to execute such instrument, may be proved by
the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instruments
acknowledged to him the execution thereof, or by an affidavit
of a witness to such execution sworn to before any such notary
or other such officer. Where such execution is by or on
behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute sufficient
proof of the authority of the Person executing the same. The
fact of the holding by any Holder of an Unregistered Security
of any series, and the identifying number of such Security and
the date of his holding the same, may be proved by the
production of such Security or by a certificate executed by
any trust company, bank, or recognized securities dealer
wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory.
Each such certificate shall be dated and shall state that on
the date thereof a Security of such series bearing a specified
identifying number was deposited with or exhibited to such
trust company, bank, or recognized securities dealer by the
Person named in such certificate. Any such certificate may be
issued in respect of one or more Unregistered Securities of
one or more series specified therein. The holding by the
Person named in any such certificate of any Unregistered
Securities of any series specified therein shall be presumed
to continue for a period of one year from the
42
date of such
certificate unless at the time of any determination of such
holding (1) another certificate bearing a later date issued in
respect of the same Securities shall be produced, or (2) the
Security of such series specified in such certificate shall be
produced by some other Person, or (3) the Security of such
series specified in such certificate shall have ceased to be
Outstanding. Subject to Sections 6.1 and 6.2, the fact and
date of the execution of any such instrument and the amount
and numbers of Securities of any series held by the Person so
executing such instrument and the amount and numbers of any
Security or Securities for such series may also be proven in
accordance with such reasonable rules and regulations as may
be prescribed by the Trustee for such series or in any other
manner which the Trustee for such series may deem sufficient.
(b) In the case of Registered Securities, the ownership
of such Securities shall be proved by the Security register or
by a certificate of the Security Registrar.
SECTION 7.3 Holders to be Treated as Owners. Prior to
surrender of a Security for registration of transfer, the Issuer,
the Trustee and any agent of the Issuer, or the Trustee may deem
and treat the Person in whose name any Registered Security shall be
registered upon the Security register as the absolute owner of such
Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this Indenture,
interest on such Security and for all other purposes; and neither
the Issuer, the Trustee nor any agent of the Issuer or the Trustee
shall be affected by any notice to the contrary. The Issuer, the
Trustee and any agent of the Issuer, or the Trustee may treat the
Holder of any Unregistered Security and the Holder of any Coupon as
the absolute owner of such Unregistered Security or Coupon (whether
or not such Unregistered Security or Coupon shall be overdue) for
the purpose of receiving payment thereof or on account thereof and
for all other purposes and neither the Issuer, the Trustee nor any
agent of the Issuer, or the Trustee shall be affected by notice to
the contrary. All such payments so made to any such Person, or
upon his order, shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for
monies payable upon any such Unregistered Security or Coupon.
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities have concurred
in any direction, consent or waiver under this Indenture,
Securities which are owned by the Issuer or any other obligor on
the Securities or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities shall be
disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such
direction, 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 Issuer or any other
obligor upon the Securities or any Person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Issuer or any other obligor on the Securities. In
case of a dispute as to such right, the advice of counsel shall be
full protection in respect of any decision
43
made by the Trustee in
accordance with such advice. Upon request of the Trustee, the
Issuer shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known
by the Issuer to be owned or held by or for the account of any of
the above-described Persons; and, subject to Sections 6.1 and 6.2,
the Trustee shall be entitled to accept such Officers' Certificate
as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided
in Section 7.1, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Securities of any
or all series, as the case may be, specified in this Indenture in
connection with such action, any Holder of a Security the serial
number of which is shown by the evidence to be included among the
serial numbers of the Securities the Holders of which have
consented to such action may, by filing written notice at the
Corporate Trust Office and upon proof of holding as provided in
this Article, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon
all future Holders and owners of such Security and of any
Securities issued in exchange or substitution therefor or on
registration or transfer thereof, irrespective of whether or not
any notation in regard thereto is made upon any such Security. Any
action taken by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the
case may be, specified in this Indenture in connection with such
action shall be conclusively binding upon the Issuer, the Trustee
and the Holders of all the Securities.
SECTION 7.6 Record Date for Consents and Waivers. The Issuer
may, but shall not be obligated to, direct the Trustee to establish
a record date for the purpose of determining the Persons entitled
to (i) waive any past Default with respect to the Securities of
such series in accordance with Section 5.10, (ii) consent to any
supplemental indenture in accordance with Section 8.2 of this
Indenture or (iii) waive compliance with any term, condition or
provision of any covenant hereunder (if this Indenture should
expressly provide for such waiver). If a record date is fixed, the
Holders on such record date, or their duly designated proxies, and
any such Persons, shall be entitled to waive any such past Default,
consent to any such supplemental indenture or waive compliance with
any such term, condition or provision or revoke any such waiver or
consent, whether or not such Holder remains a Holder after such
record date; provided, however, that unless such waiver or consent
is obtained from the Holders, or duly designated proxies, of the
requisite principal amount of Outstanding Securities of such series
prior to the date which is the 90th day after such record date, any
such waiver or consent previously given shall automatically and
without further action by any Holder be cancelled and of no further
effect.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any series
entitled to join in the giving or making of any (i) notice of
Default, (ii) declaration under 5.1, (iii) request to institute
proceedings referred to in Section 5.6 or (iv) direction referred
to in Section 5.9, in each case with respect to Securities of such
series. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities of such series on such record
date, and no other Holders, shall be entitled to join in such
notice, declaration, request or direction or to revoke the same,
whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless
taken on or prior to the
44
applicable expiration date by Holders of
the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be
construed to prevent the Trustee from setting a new record date for
any action for which a record date has previously been set pursuant
to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of
no effect), and nothing in this paragraph shall be construed to
render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series
on the date such action is taken. Promptly after any record date
is set pursuant to this paragraph, the Trustee, at the Issuer's
expense, shall cause notice of such record date, the proposed
action by Holders and the applicable expiration date to be given to
the Issuer in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 11.4.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer when authorized by Board Resolutions
(which resolutions may provide general terms or parameters for such
action and may provide that the specific terms of such action may
be determined in accordance with or pursuant to a Company Order)
and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act of 1939 as in force at
the date of the execution thereof) for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage or pledge to
the Trustee as security for the Securities of one or more
series any property or assets;
(b) to evidence the succession of another entity to the
Issuer or successive successions, and the assumption by the
successor entity of the respective covenants, agreements and
obligations of the Issuer under this Indenture or any
supplemental indenture;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions or to
surrender any right, power or option conferred by this
Indenture on the Issuer as its Board of Directors and the
Trustee shall consider to be for the protection or benefit of
the Holders of all or any series of Securities or Coupons of
any series (and if such covenants are to be for the benefit of
less than all series of Securities, stating that such
covenants are being added solely for the benefit of such
series), and to make the occurrence, or the occurrence and
continuance, of a Default in any such additional covenants,
restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth;
provided, that in respect of any such additional covenant,
restriction, condition or provision 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 an Event of Default or may
limit the remedies available to the Trustee upon such an Event
of Default or may limit the right of the
45
Holders of a majority
in aggregate principal amount of the Securities of such series
to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement
any provision contained herein or in any supplemental
indenture which may be defective or inconsistent with any
other provision contained herein or in any supplemental
indenture, or to make any other provisions in regard to
matters or questions under this Indenture or any supplemental
indenture as the Issuer may deem necessary or desirable,
provided, that no action under this clause (d) shall adversely
affect the interests of the Holders of the Securities or
Coupons;
(e) to establish the form or terms of Securities of any
series or of the Coupons appertaining to such Securities as
permitted by Sections 2.1 and 2.3;
(f) to make any change to comply with any requirement of
the Commission in connection with the qualification of the
Indenture under the Trust Indenture Act of 1939, as amended;
(g) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the
requirements of Section 6.10; and
(h) to provide for uncertificated Securities in addition
to certificated Securities, so long as such uncertificated
Securities are in registered form for United States federal
income tax purposes.
The Trustee is hereby authorized to join with the Issuer in
the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties,
immunities or liabilities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders of
any of the Securities at the time Outstanding, notwithstanding any
of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in
Article Seven) of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time
Outstanding of any series affected by such supplemental indenture,
the Issuer, when authorized by a Board Resolution or Resolutions
(which Resolutions may provide general terms or parameters for such
action and may provide that the specific terms of such action may
be determined in accordance with or pursuant to a Company Order)
and the Trustee may, from time to time and at any time, enter into
an indenture or indentures
46
supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act of 1939 as in force at
the date of execution thereof) for the purpose of adding, any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities
of such series or of the Coupons appertaining to such Securities;
provided, that no such supplemental indenture shall (a) change the
final maturity of any Security or change the time for payment of
any installment of interest thereon, or reduce the principal amount
thereof, or reduce the rate (or alter the method of computation) of
interest thereon, or reduce (or alter the method of computation of)
any amount payable on redemption or repayment thereof or change the
time for payment thereof, or make the principal thereof (including
any amount in respect of original issue discount), or interest
(together with any additional amounts payable with respect to, and
pursuant to the terms of, such Security) thereon payable in any
coin or currency other than that provided in the Securities and
Coupons or in accordance with the terms thereof, or reduce the
amount of the principal of an Original Issue Discount Security that
would be due and payable upon an acceleration of the maturity
thereof pursuant to Section 5.1 or the amount thereof provable in
bankruptcy pursuant to Section 5.2, or alter the provisions of
Section 11.11 or 11.12 or impair or affect the right of any
Securityholder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment at the option
of the Securityholder, in each case without the consent of the
Holder of each Security so affected, provided, no consent of any
Holder of any Security shall be necessary under this Section 8.2 to
permit the Trustee and the Issuer to execute supplemental
indentures pursuant to Section 8.1(e) of this Indenture, or (b)
reduce the aforesaid percentage of principal amount of Securities
of any series the consent of the Holders of which is required for
any such supplemental indenture to less than a majority, or reduce
the percentage of Securities of such series necessary to consent to
waive any past Default under this Indenture to less than a
majority, or modify any of the provisions of this Section or
Section 5.10, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified
or waived, in each case, without the consent of the Holder of each
Security so affected.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular
series of Securities, or of Coupons appertaining to such
Securities, or which modifies the rights of Holders of Securities
of such series with respect to such covenant or provision, shall be
deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series or of the Coupons appertaining to
such Securities.
Upon the request of the Issuer, accompanied by copies of Board
Resolutions of the Issuer (which resolutions may provide general
terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance with
or pursuant to a Company Order) certified by the secretary or an
assistant secretary of the Issuer authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Securityholders and other documents,
if any, required by Section 7.1 the Trustee shall join with the
Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties,
immunities or liabilities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
47
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient
if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this
Section, the Issuer shall give notice thereof setting forth in
general terms the substance of such supplemental indenture, (i) to
the Holders of the Outstanding Registered Securities of each series
affected thereby, by mailing a notice thereof by first-class mail
to such Holders at their addresses as they shall appear on the
security register, (ii) if any Unregistered Securities of a series
affected thereby are then Outstanding, to the Holders thereof who
have filed their names and addresses with the Trustee for such
purpose within two years preceding the giving of such notice, by
mailing a notice thereof by first-class mail to such Holders at
such addresses as were so furnished to the Trustee and (iii) if any
Unregistered Securities of a series affected thereby are then Out-
standing, to all Holders thereof, by publication of a notice
thereof at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 3.7, at least once
in an Authorized Newspaper in Luxembourg). Any failure of the
Issuer to give such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions
hereof, this Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under
this Indenture of the Trustee, the Issuer, and the Holders of
Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments. and all the terms
and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for
any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an
Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental indenture executed pursuant to
this Article Eight complies with the applicable provisions of this
Indenture and that the execution of such supplemental indenture is
authorized or permitted by this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to the
provisions of this Article may bear a notation in form approved by
the Trustee for such series as to any matter provided for by such
supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine,
new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuer, to any modification of this
Indenture contained in any such supplemental indenture may be
prepared by the Issuer, authenticated by the Trustee and delivered
in exchange for the Securities of such series then Outstanding.
48
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of the Issuer Not to Merge, Consolidate,
Sell or Convey Property Except Under Certain Conditions. The
Issuer covenants that it will not merge with or into or consolidate
with any Person or sell, convey, transfer, lease or otherwise
dispose of all or substantially all of its assets to any Person and
the Issuer shall not permit any Person to consolidate with or merge
into the Issuer or sell, convey, transfer, lease or otherwise
dispose of all or substantially all of its assets to the Issuer,
unless (i) either the Issuer (in the case of a merger) shall be the
continuing corporation, or the successor entity or the Person which
acquires by sale, conveyance, transfer, lease or disposition all or
substantially all of the assets of the Issuer (if other than the
Issuer) shall be a corporation, limited liability company or
partnership organized under the laws of the United States of
America or any State thereof or the District of Columbia, and shall
expressly assume, by supplemental indenture, in form satisfactory
to the Trustee, executed and delivered to the Trustee by such
entity pursuant to Article Eight hereof, all of the payment
obligations of the Issuer pursuant to this Indenture and the
Securities of all series and Coupons, if any, appertaining thereto
and the due and punctual performance of every covenant of this
Indenture on the part of the Issuer to be performed or observed;
and (ii) immediately after giving effect to such merger,
consolidation, sale, conveyance, transfer, lease or disposition and
treating any Debt which becomes an obligation of the Issuer as a
result of such transaction as having been incurred by the Issuer at
the time of such transaction, no Default or Event of Default shall
have occurred and be continuing.
SECTION 9.2 Successor Corporation Substituted. In case of
any such consolidation, merger, sale, conveyance, transfer, lease
or disposition, and following such an assumption by the successor
entity, such successor entity shall succeed to and be substituted
for the Issuer, with the same effect as if it had been named
herein. Except in the case of conveyance by way of lease, when the
successor entity assumes all obligations of the Issuer hereunder
and the provisions of Section 9.1 have been complied with, all
obligations and covenants of the Issuer hereunder or under the
Securities shall terminate.
Such successor entity may cause to be signed, and may issue
either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered
to the Trustee; and, upon the order of such successor entity,
instead of the Issuer, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities and Coupons
appertaining thereto, if any, which previously shall have been
signed and delivered by the officers of the Issuer to the Trustee
for authentication, and any Securities together with any Coupons
appertaining thereto which such successor entity thereafter shall
cause to be signed and delivered to the Trustee for that purpose.
All of the Securities so issued together with any Coupons
appertaining thereto 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.
49
In case of any such consolidation, merger, sale, conveyance,
transfer, lease or disposition such changes in phraseology and form
(but not in substance) may be made in the Securities and Coupons
thereafter to be issued as may be appropriate.
In the event of any sale, conveyance, transfer or disposition
(other than a conveyance by way of lease) covered by this Section
9.2, the Issuer (or any successor entity which shall theretofore
have become such in the manner described in this Article) shall be
discharged from all obligations and covenants under this Indenture
and the Securities and may be liquidated and dissolved.
SECTION 9.3 Opinion of Counsel to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an
Opinion of Counsel prepared in accordance with Section 11.5 as
conclusive evidence that any such consolidation, merger, sale,
transfer, lease, disposition or conveyance, and any such
assumption, and any such liquidation or dissolution complies with
the applicable provisions of this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONIES
50
SECTION 10.1 Satisfaction and Discharge of Indenture. (A) If
at any time (a) the Issuer shall have paid or caused to be paid the
principal of and interest on all the Securities of any series
Outstanding hereunder and all unmatured Coupons appertaining
thereto (other than any Securities of such series and Coupons
appertaining thereto which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in
Section 2.9), as and when the same shall have become due and
payable, or (b) the Issuer shall have delivered to the Trustee for
cancellation all Securities of such series theretofore
authenticated and all unmatured Coupons appertaining thereto (other
than any Securities and Coupons appertaining thereto of such series
which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.9) or (c) in
the case of any series of Securities where the exact or maximum
amount (including the currency of payment) of principal of and
interest due on which can be determined at the time of making the
deposit referred to in clause (ii) below, (i) all the Securities of
such series and all unmatured Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation (x) shall
have become due and payable or (y) are by their terms to become due
and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and (ii) the Issuer shall have
irrevocably deposited or caused to be deposited with the Trustee as
trust funds the amount identified in subsection (x), (y) or (z)
below (other than monies repaid by the Trustee or any paying agent
to the Issuer in accordance with Section 10.4), specifically
pledged as security for and dedicated solely to the benefit of the
Holders of the Securities of such series and Coupons appertaining
thereto, (x) cash in an amount or (y) in the case of any series of
Securities the payments on which may only be made in Dollars,
direct obligations of the United States of America, backed by its
full faith and credit ("U.S. Government Obligations"), maturing as
to principal and interest at such times and in such amounts as will
insure the availability of cash not later than one day before the
due date of payments in respect of the Securities, or (z) a
combination thereof, sufficient (without investment of such cash or
reinvestment of any interest or proceeds from such U.S. Government
Obligations) in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay the principal of and
interest on all Securities of such series and Coupons appertaining
thereto on each date that such principal or interest is due and
payable (whether at maturity or through operation of a mandatory
sinking fund other than any redemption or repayment at the option
of the Holder); and if, in any such case, the Issuer shall also pay
or cause to be paid all other sums payable hereunder by the Issuer,
all of the Securities of such series and any Coupons appertaining
thereto shall be deemed paid and discharged and the provisions of
this Indenture with respect to such Securities and Coupons shall
cease to be of further effect (except as to (i) rights of
registration of transfer, and exchange of Securities of such series
or Coupons appertaining thereto, and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced or
apparently destroyed, lost or stolen Securities or Coupons, (iii)
rights of the Holders of Securities and Coupons appertaining
thereto to receive from the property so deposited payments of
principal thereof and interest on the original stated due dates
therefor (but not upon acceleration) or the Redemption Date or
repayment date therefor, as the case may be and remaining rights of
Holders to receive mandatory sinking fund payments, if any, (iv)
the rights, obligations and immunities of the Trustee hereunder,
including any right to compensation, reimbursement of expenses and
indemnification under Section 6.6, (v) the rights of the Holders of
Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them and (vi) the obligations
of the Issuer under
51
Sections 3.2, 3.3 and 3.4), and the Trustee, on
demand of the Issuer accompanied by an Officers' Certificate and an
Opinion of Counsel, which complies with Section 11.5, stating that
the provisions of this Section have been complied with and at the
cost and expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture;
provided, that the rights of Holders of the Securities and Coupons
to receive amounts in respect of principal of and interest on the
Securities and Coupons held by them shall not be delayed longer
than required by then-applicable mandatory rules or policies of any
securities exchange upon which the Securities are listed. In
addition, in connection with the satisfaction and discharge
pursuant to clause (c)(i)(y) above, the Trustee shall give notice
to the Holders of Securities of such satisfaction and discharge.
The Issuer agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and
properly rendered by the Trustee in connection with this Indenture
or the Securities.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Issuer to the Trustee under
Section 6.6 shall survive.
(B) The following provisions shall apply to the
Securities of each series unless specifically otherwise provided in
a Board Resolution of the Issuer, Officers' Certificate or
indenture supplemental hereto provided pursuant to Section 2.3. In
addition to discharge of the Indenture pursuant to Section 10.1(A),
in the case of any such series of Securities the exact or maximum
amounts (including the currency of payment) of principal and
interest due on which can be determined at the time of making the
deposit referred to in Clause 10.1(B)(x)(a) below: (x) the Issuer
shall be deemed to have paid and discharged the entire indebtedness
on all Securities of such a series and the Coupons appertaining
thereto on the 91st day after the date of the deposit referred to
in Clause 10.1(B)(x)(a) below, and the provisions of this Indenture
with respect to the Securities of such series and Coupons
appertaining thereto shall no longer be in effect (except as to (i)
rights of registration of transfer and exchange of Securities of
such series and Coupons appertaining thereto and the Issuer's right
of optional redemption, if any, (ii) substitution of mutilated,
defaced or apparently destroyed, lost or stolen Securities or
Coupons, (iii) rights of Holders of Securities or Coupons
appertaining thereto to receive from the property so deposited
payments of principal thereof and interest thereon on the original
stated due dates therefor (but not on acceleration) or the
Redemption Date or repayment date therefor, as the case may be, and
remaining rights of the Holders to receive mandatory sinking fund
payments, if any, (iv) the rights, obligations, duties and
immunities of the Trustee hereunder, including any right to
compensation, reimbursement of expenses and indemnification under
Section 6.6, (v) the rights of the Holders of Securities of such
series and Coupons appertaining thereto as beneficiaries hereof
with respect to the property so deposited with the Trustee payable
to all or any of them and (vi) the obligations of the Issuer and
the rights of the Holders of the Securities under Sections 3.2, 3.3
and 3.4), (hereinafter "defeasance"), and the Trustee, at the
expense of the Issuer, shall at the Issuer's request, execute
proper instruments acknowledging the same, if the Issuer notifies
the Trustee that the provisions of this Section 10.1(B) are being
complied with solely to effect a defeasance and if
(a) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited
with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as
security for, and dedicated solely to, the
52
benefit of the
Holders of the Securities of such series and Coupons
appertaining thereto, (i) cash in an amount, or (ii) in the
case of any series of Securities the payments on which may
only be in Dollars, U.S. Government Obligations, maturing as
to principal and interest at such times and in such amounts as
will insure (without investment of such cash or reinvestment
of any interest or proceeds from such U.S. Government
Obligations) the availability of cash or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay the
principal of and interest on all Securities of such series and
Coupons appertaining thereto on each date that such principal
and interest is due and payable (whether at maturity or upon
redemption (through operation of a mandatory sinking fund or
otherwise other than any redemption or repayment at the option
of the Holder);
(b) no Default or with respect to the Securities of such
series shall have occurred and be continuing on the date of
such deposit or, insofar as Sections 5.1(d) and (e) are
concerned, at any time during the period ending on and
including the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until the expiration of such period);
(c) such defeasance shall not cause the Trustee to have
a conflicting interest for purposes of the Trust Indenture Act
of 1939 with respect to any securities of the Issuer;
(d) such defeasance shall not result in a breach or
violation of, or constitute a Default under, this Indenture or
any Securities of such series or any other agreement or
instrument to which the Issuer is a party or by which it is
bound;
(e) the Issuer has delivered to the Trustee an Opinion
of Counsel to the effect, and such opinion shall confirm, (i)
that, based on the fact that (x) the Issuer has received from,
or there has been published by, the Internal Revenue Service
a ruling or (y) since the date hereof, there has been a change
in the applicable federal income tax law, in either case, to
the effect that Holders of the Securities of such series and
the Coupons appertaining thereto will not recognize income,
gain or loss, other than with respect to the interest earned
on the amounts defeased, for federal income tax purposes as a
result of such deposit, defeasance and discharge and will be
subject to federal income tax on the same amount and in the
same manner and at the same times as would have been the case
if such deposit, defeasance and discharge had not occurred;
and (ii) that the trust arising from such deposit shall not
constitute an "investment company" or an entity "controlled"
by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended; and
(f) the Issuer has paid or caused to be paid all other
sums then payable hereunder by the Issuer and the Issuer has
delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent
provided for relating to the defeasance contemplated by this
provision have been complied with.
53
(C) The Issuer shall be released from its obligations
under Article Nine and any other covenants specified pursuant to
Section 2.3 with respect to the Securities of any series and any
Coupons appertaining thereto on and after the date the conditions
set forth below are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that, with
respect to the outstanding Securities of the applicable series, the
Issuer may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in such
Article or any such covenant, whether directly or indirectly by
reason of any reference elsewhere herein to such Article or any
such covenant or by reason of any reference in such Article to any
other provision herein or in any other document and such omission
to comply shall not constitute an Event of Default under Section
5.1, but the remainder of this Indenture and such Securities and
Coupons shall be unaffected thereby. The following shall be the
conditions to application of this subsection (C) of this Section
10.1:
(a) the Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust
for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit
of the Holders of the Securities of such series and Coupons
appertaining thereto, (i) cash in an amount, or (ii) in the
case of any series of Securities the payment on which may only
be made in Dollars, U.S. Government Obligations maturing as to
principal and interest at such times and in such amounts as
will insure (without investment of such cash or reinvestment
of any interest or proceeds from such U.S. Government
Obligations) the availability of cash in an amount or (iii) a
combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay the principal and interest on all Securities
of such series and Coupons appertaining thereto on each date
that such principal or interest is due and payable (whether at
maturity or upon redemption (through operation of a mandatory
sinking fund or otherwise, other than any redemption or
repayment at the option of the Holder);
(b) no Default or Event of Default or event which with
notice or lapse of time or both would become an Event of
Default with respect to the Securities shall have occurred and
be continuing on the date of such deposit or, insofar as
subsections 5.1(d) and (e) are concerned, at any time during
the period ending on the 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);
(c) such covenant defeasance will not result in a breach
or violation of, or constitute a default under, this
Indenture, or any Securities issued hereunder or any agreement
or instrument to which the Issuer is a party or by which it is
bound;
(d) such covenant defeasance shall not cause the Trustee
to have a conflicting interest as defined in Section 310(b) of
the Trust Indenture Act of 1939;
(e) such covenant defeasance shall not cause any
Securities then listed on any registered national securities
exchange to be delisted;
54
(f) the Issuer shall have delivered to the Trustee an
Opinion of Counsel to the effect (i) that the Holders of the
Securities of such series and Coupons appertaining thereto
will not recognize income, gain or loss, other than with
respect to the interest earned on the amounts defeased, 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; and (ii) that the trust arising from such deposit
shall not constitute an "investment company" or an entity
"controlled" by an "investment company" as such terms are
defined in The Investment Company Act of 1940, as amended; and
(g) the Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating
that all conditions precedent relating to the covenant
defeasance contemplated by this provision have been complied
with.
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 10.4 all monies and
securities deposited with the Trustee pursuant to Section 10.1
shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Issuer acting
as its own paying agent), to the Holders of the particular
Securities of such series and of Coupons appertaining thereto for
the payment or redemption of which such monies or securities have
been deposited with the Trustee, of all sums due and to become due
thereon for principal and interest; but such monies or securities
need not be segregated from other funds except to the extent
required by law.
SECTION 10.3 Repayment of Monies Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture
with respect to the Securities of any series or the defeasance
thereof, all monies then held by any paying agent under the
provisions of this Indenture with respect to such series shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee
and thereupon such paying agent shall be released from all further
liability with respect to such monies.
SECTION 10.4 Return of Monies Held by Trustee and Paying Agent
Unclaimed for Two Years. Any monies or U.S. Government Obligations
deposited with or paid to the Trustee or any paying agent for the
payment of the principal of and interest on any Security of any
series or Coupons attached thereto and not applied but remaining
unclaimed for two years after the date upon which such principal
and interest shall have become due and payable, shall, upon the
written request of the Issuer and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Issuer by the Trustee for
such series or such paying agent, and the Holder of the Securities
of such series and of any Coupons appertaining thereto shall,
unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property laws, thereafter look
only to the Issuer for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any paying
agent with respect to such monies shall thereupon cease; provided,
however, that the Trustee or such paying agent, before being
required to make any such repayment with respect to monies
deposited with it for any payment (a) in respect of Registered
Securities of any series, shall at the expense of the Issuer, mail
by first class mail to Holders of such Securities at their
addresses as they shall appear on the Security register, and (b) in
respect of Unregistered Securities of any series the Holders of
which have filed their names
55
and addresses with the Trustee for
such purpose within two years preceding the giving of such notice,
shall at the expense of the Issuer, mail by first class mail to
such Holders at such addresses, and (c) in respect of Unregistered
Securities of any series, shall at the expense of the Issuer cause
to be published once, in an Authorized Newspaper in the City of New
York and once in an Authorized Newspaper in London (and, if
required by Section 3.7, at least once in an Authorized Newspaper
in Luxembourg) notice, that such monies remain unpaid and that,
after a date specified therein, which shall not be less than thirty
days from the date of such mailing or publication, any unclaimed
balance of such money then remaining will be repaid to the Issuer.
SECTION 10.5 Indemnity for U.S. Government Obligations. The
Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 10.1 or the principal or
interest received in respect of such obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse
shall be had for the payment of the principal of, or interest on
any Security or any Coupon appertaining thereto, for any claim
based thereon, or otherwise in respect thereof, or based on or in
respect of this Indenture or any indenture supplement thereto,
against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Issuer or any successor
corporation, either directly or through the Issuer, or any
successor corporation, whether by virtue of constitution, statute
or rule of law or by the enforcement of any assessment or penalty
or otherwise, all such liability being, by the acceptance of such
Security and any Coupons appertaining thereto and as part of the
consideration for the issue thereof, expressly waived and released.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders. Nothing in this Indenture or in the
Securities or in Coupons appertaining thereto, expressed or
implied, shall give or be construed to give to any Person, other
than the parties hereto and their successors and the Holders of the
Securities or Coupons, if any, any legal or equitable right, remedy
or claim under this Indenture or under any covenant or provision
herein contained, all such covenants and provisions being for the
sole benefit of the parties hereto and their successors and the
Holders of the Securities or Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture. All covenants and agreements in this Indenture by the
Issuer shall bind its successors and assigns (whether by merger,
consolidation or otherwise), whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, the Trustee and
Securityholders. Any notice or demand which by any provision of
this Indenture is required or permitted to be given or served by
the Trustee or by the Holders of Securities or Coupons to or on the
Issuer may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically
56
provided herein)
addressed (until another address of the Issuer is filed by the
Issuer with the Trustee) to Freeport-McMoRan Copper & Gold Inc.,
0000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000, Attention:
Corporate Secretary. Any notice, direction, request or demand by
the Issuer or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes,
if given or made at the Corporate Trust Office, Attention:
Corporate Trustee Administration Department.
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security
register. Where this Indenture provides for notice to Holders of
Unregistered Securities, notice shall be (i) mailed to those
Holders of Unregistered Securities who have filed their names and
addresses for this purpose with the Trustee within the two
preceding years of giving such notice, with such notice being
sufficiently given (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to each Holder
entitled thereto, at his last address as it appears in such filing
and (ii) published at least once in an Authorized Newspaper in the
City of New York, and at least once in an Authorized Newspaper in
London (and, if required by Section 3.7, at least once in an
Authorized Newspaper in Luxembourg). In any case where notice to
such Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled
to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to
the Issuer and Securityholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner
of giving such notice as shall be satisfactory to the Trustee shall
be deemed to be a sufficient giving of such notice.
SECTION 11.5 Officers' Certificate and Opinions of Counsel,
Statements to Be Contained Therein. Upon any application or demand
by the Issuer to the Trustee to take any action under any of the
provisions of this Indenture, the Issuer shall furnish to the
Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent
have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents
is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Except as provided in Sections 3.5 and 12.4, each certificate
or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that
the Person making such certificate or providing such opinion has
read such covenant or condition and the definitions relating
thereto,
57
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based, (c) a statement
that, in the opinion of such Person, he has made such examination
or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition
has been complied with and (d) a statement as to whether or not, in
the opinion of such Person, such condition or covenant has been
complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon
a certificate or opinion of or representations by counsel, unless
such officer knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters,
information with respect to which is in the possession of the
Issuer upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer unless such
counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants in the
employ of the Issuer unless such officer or counsel, as the case
may be, knows that the certificate or opinion or representations
with respect to the accounting matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are
erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a
statement that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays.
If the date of maturity of interest on or principal of the
Securities of any series or any Coupons appertaining thereto or the
date fixed for redemption or repayment of any Security shall not be
a Business Day, then payment of interest or principal need not be
made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption or repayment, and no
interest shall accrue for the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If any provision hereof limits, qualifies
or conflicts with the duties imposed by any of Sections 310 through
317, inclusive, of the Trust Indenture Act of 1939 or with another
provision hereof which is required to be included by any of Section
310 through 317, inclusive, or by operation of Section 318(c)
thereof, such duties and required provision shall control except
as, and to the extent, such provision is expressly excluded from
this Indenture, as permitted by the Trust Indenture Act of 1939.
SECTION 11.8 New York Law to Govern; Separability. This
Indenture and each Security shall each be deemed to be a contract
under the laws of the State of New York, and for all purposes
58
shall
be construed in accordance with the laws of said State, except as
may otherwise be required by mandatory provisions of law.
In case any provision of this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way
be affected thereby.
SECTION 11.9 Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and the same
instrument.
SECTION 11.10 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 11.11 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in an Officers' Certificate delivered
pursuant to Section 2.3 of this Indenture with respect to a
particular series of Securities, whenever for purposes of this
Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time
outstanding and, at such time, there are Outstanding Securities of
any series which are denominated in a coin or currency other than
Dollars (including ECUs), then the principal amount of Securities
of such series which shall be deemed to be Outstanding for the
purpose of taking such action shall be that amount of Dollars that
could be obtained for such amount at the Market Exchange Rate. For
purposes of this Section 11.11, Market Exchange Rate shall mean the
noon Dollar buying rate in New York City for cable transfers of
that currency as published by the Federal Reserve Bank of New York;
provided, however, in the case of ECUs, Market Exchange Rate shall
mean the rate of exchange determined by the Commission of the
European Communities (or any successor thereto) as published in the
Official Journal of the European Communities (such publication or
any successor publication, the "Journal"). If such Market Exchange
Rate is not available for any reason with respect to such currency,
the Trustee shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York
or, in the case of ECUs, the rate of exchange as published in the
Journal, as of the most recent available date, or quotations or, in
the case of ECUs, rates of exchange from one or more major banks in
The City of New York or in the country of issue of the currency in
question, which for purposes of the ECU shall be Brussels, Belgium,
or such other quotations or, in the case of ECU, rates of exchange
as the Trustee shall deem appropriate. The provisions of this
paragraph shall apply in determining the equivalent principal
amount in respect of Securities of a series denominated in a
currency other than Dollars in connection with any action taken by
Holders of Securities pursuant to the terms of this Indenture
including without limitation any determination contemplated in
Section 5.1(f) or (g).
All decisions and determinations of the Trustee regarding the
Market Exchange Rate or any alternative determination provided for
in the preceding paragraph shall be in its sole discretion and
shall, in the absence of manifest error, be conclusive to the
extent permitted by law for all purposes and irrevocably binding
upon the Issuer and all Holders.
59
SECTION 11.12 Judgment Currency. The Issuer agrees, to the
fullest extent it may effectively do so under applicable law, that
(a) if for the purpose of obtaining judgment in any court it is
necessary to convert the sum due in respect of the principal of or
interest on the Securities of any series (the "Required Currency")
into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could pur-
chase in The City of New York the Required Currency with the
Judgment Currency on the day on which final unappealable judgment
is entered, unless such day is not a New York Banking Day, then, to
the extent permitted by applicable law, the rate of exchange used
shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York
Banking Day preceding the day on which final unappealable judgment
is entered and (b) its obligations under this Indenture to make
payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any
currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to
be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii) shall not be
affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking
Day" means any day except a Saturday, Sunday or a legal holiday in
The City of New York or a day on which banking institutions in The
City of New York are authorized or required by law or executive
order to close.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which
are redeemable before their maturity or to any sinking fund for the
retirement of Securities of a series except as otherwise specified
as contemplated by Section 2.3 for Securities of such series.
SECTION 12.2 Notice of Redemption. Notice of redemption to
the Holders of Registered Securities to be redeemed as a whole or
in part at the option of the Issuer shall be given in the manner
provided in Section 11.4, at least 30 days and not more than 60
days prior to the date fixed for redemption to such Holders of
Securities. Notice of redemption to all Holders of Unregistered
Securities shall be published in an Authorized Newspaper in the
Borough of Manhattan, the City of New York and in an Authorized
Newspaper in London (and, if required by Section 3.7, in an
Authorized Newspaper in Luxembourg), in each case, once in each of
three successive calendar weeks, the first publication to be not
less than 30 nor more than 60 days prior to the date fixed for
redemption. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice. Failure to give
notice by mail, or any defect in the notice to the Holder of any
Security of a series designated for
60
redemption as a whole or in
part, shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such
Holder to be redeemed, the Redemption Date, the applicable
Redemption Price, and, if the Redemption Price was required to be
calculated according, or pursuant to a formula or by reference to
the value or price of any one or more commodities, currencies,
indices, instruments or other securities, the method for such
calculation and the basis for such Redemption Price, the place or
places of payment, that payment will be made upon presentation and
surrender of such Securities and, in the case of Securities with
Coupons attached thereto, of all Coupons appertaining thereto
maturing after the date fixed for redemption, that such redemption
is pursuant to a mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the Redemption Date will
be paid as specified in said notice and that on and after said
Redemption Date interest thereon or on the portions thereof to be
redeemed will cease to accrue. In case any Security of a series is
to be redeemed in part only the notice of redemption shall state
the portion of the principal amount thereof to be redeemed and
shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such
series in principal amount equal to the unredeemed portion thereof
will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer
or, at the Issuer's request, by the Trustee in the name and at the
expense of the Issuer.
At least one Business Day prior to the Redemption Date
specified in the notice of redemption given as provided in this
Section, the Issuer will deposit with the Trustee or with one or
more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the
Redemption Date all the Securities of such series to be redeemed at
the appropriate Redemption Price, together with accrued interest to
and including the Redemption Date. If less than all Securities of
any series are to be redeemed, the Issuer will deliver to the
Trustee at least 70 days prior to the Redemption Date an Officers'
Certificate stating the aggregate principal amount of Securities to
be redeemed. In case of a redemption at the election of the Issuer
prior to the expiration of any restriction on such redemption or
subject to compliance with conditions precedent, the Issuer shall
deliver to the Trustee, prior to the giving of any notice of
redemption to Holders pursuant to this Section, an Officers'
Certificate stating that such restriction or condition has been
complied with.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in
whole or in part. Securities may be redeemed in part in multiples
equal to the minimum authorized denomination for Securities of such
series or any multiple thereof. The Trustee shall promptly notify
the Issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series
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 of any series 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
61
to be
redeemed. In case of a redemption at the election of the Issuer
prior to the expiration of any restriction on such redemption, the
Issuer shall deliver to the Trustee, prior to the giving of any
notice of redemption to Holders pursuant to this Section, an
Officers' Certificate stating that such restriction has been
complied with.
SECTION 12.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the
Securities or portions of Securities specified in such notice shall
become due and payable on the Redemption Date and at the place
stated in such notice at the applicable Redemption Price, together
with interest accrued to and including the Redemption Date, and on
and after said Redemption Date (unless the Issuer shall default in
the payment of such Securities at the Redemption Price, together
with interest accrued to said Redemption Date) interest on the
Securities or portions of Securities so called for redemption
shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void, and such Securities shall cease
from and after the Redemption Date to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have
no right in respect of such Securities to be redeemed except the
right to receive the applicable Redemption Price thereof and unpaid
interest to and including the Redemption Date. On surrender of
such Securities at a place of payment specified in said notice,
together with all Coupons, if any, appertaining thereto maturing
after the Redemption Date, such Securities or the specified
portions thereof shall be paid and redeemed by the Issuer at the
applicable Redemption Price, together with interest accrued
thereon, to and including the Redemption Date; provided that any
payment of interest becoming due on or prior to the Redemption Date
shall be payable in the case of Securities with Coupons attached
thereto, to the Holders of the Coupons for such interest upon
surrender thereof, and in the case of Registered Securities,
registered as such on the relevant Regular Record Date subject to
the terms and provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until
paid or duly provided for, bear interest from the Redemption Date
at the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Security.
If any Security with Coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant Coupons
maturing after the date fixed for redemption, the surrender of such
missing Coupon or Coupons may be waived by the Issuer and the
Trustee, if there be furnished to each of them such security or
indemnity as they may require to save each of them harmless.
Upon surrender of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver
to or on the order of the Holder thereof, at the expense of the
Issuer, a new Security or Securities for such series, of authorized
denominations, in principal amount equal to the unredeemed portion
of the Security so prescribed.
SECTION 12.4 Exclusion of Certain Securities From Eligibility
for Selection for Redemption. Securities shall be excluded from
eligibility for selection for redemption if they are identified by
registration and certificate number in an Officers' Certificate of
the Issuer delivered to the Trustee at least 45 days prior to the
last date on which notice of redemption may be given as
62
being owned
of record and beneficially by, and not pledged or hypothecated by
either (a) the Issuer or (b) an entity specifically identified in
such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the
terms of the 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 the Securities of any
series is herein referred to as an "optional sinking fund payment".
The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the
Issuer may at its option (a) deliver to the Trustee Securities of
such series theretofore purchased or otherwise acquired (except
upon redemption pursuant to the mandatory sinking fund) by the
Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee
for cancellation pursuant to Section 2.10, (b) receive credit for
optional sinking fund payments (not previously so credited) made
pursuant to this Section, or (c) receive credit for Securities of
such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee
an Officers' Certificate (which need not contain the statements
required by Section 11.5) (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash
and the portion to be satisfied by credit of Securities of such
series and the basis for such credit, (b) stating that none of the
Securities of such series to be so credited has theretofore been so
credited, (c) stating that no defaults in the payment of interest
or Events of Default with respect to such series have occurred
(which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to
make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund
payment which the Issuer intends to pay on or before the next
succeeding sinking fund payment date. Any Securities of such
series to be credited and required to be delivered to the Trustee
in order for the Issuer to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.10 to the
Trustee with such Officers' Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officers'
Certificate shall be irrevocable and upon its receipt by the
Trustee the Issuer shall become unconditionally obligated to make
all the cash payments or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. Failure
of the Issuer, on or before any such 60th day, to deliver or cause
to be delivered such Officers' Certificate and Securities (subject
to the parenthetical clause in the second preceding sentence)
specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable
election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment
date shall be paid entirely in cash without the option to
63
deliver
or credit Securities of such series in respect thereof and (ii)
that the Issuer will make no optional sinking fund payment with
respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund
payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $50,000 (or the equivalent
thereof in any Foreign Currency or ECU) or a lesser sum in Dollars
(or the equivalent thereof in any Foreign Currency or ECU) if the
Issuer shall so request with respect to the Securities of any
particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of
Securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption.
If such amount shall be $50,000 (or the equivalent thereof in any
Foreign Currency or ECU) or less and the Issuer makes no such
request then it shall be carried over until a sum in excess of
$50,000 (or the equivalent thereof in any Foreign Currency or ECU)
is available. The Trustee shall select, in the manner provided in
Section 12.2 and subject to the limitations in Section 12.4, for
redemption on such sinking fund payment date a sufficient principal
amount of Securities of such series to absorb said cash, as nearly
as may be practicable, and shall (if requested in writing by the
Issuer) inform the Issuer of the serial numbers of the Securities
of such series (or portions thereof) so selected. The Trustee, in
the name and at the expense of the Issuer (or the Issuer, if it
shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substan-
tially the manner provided in Section 12.2 (and with the effect
provided in Section 12.3) for the redemption of Securities of such
series in part at the option of the Issuer. The amount of any
sinking fund payments not so applied or allocated to the redemption
of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund monies held on the stated
maturity date of the Securities of any particular series (or
earlier, if such maturity is accelerated), which are not held for
the payment or redemption of particular Securities of such series
shall be applied, together with other monies, if necessary,
sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall
pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund monies or give any notice
of redemption of Securities for such series by operation of the
sinking fund during the continuance of a default in payment of
interest on such Securities or of any Event of Default except that,
where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be
redeemed such Securities, provided that it shall have received from
the Issuer a sum sufficient for such redemption. Except as
aforesaid, any monies in the sinking fund for such series at the
time when any such default or Event of Default shall occur, and any
monies thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have
been collected under Article Five and held for the payment of all
such Securities. In case such Event of Default shall have been
waived as provided in Section 5.10 or the default cured on or
before the sixtieth day preceding the sinking fund payment
64
date in
any year, such monies shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this
Section to the redemption of such Securities.
65
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
______________________, 2000.
FREEPORT-McMoRan COPPER & GOLD INC.
By:
--------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
------------------------
Name:
Title:
____________________________, as Trustee
By:
---------------------------------
Name:
Title:
[CORPORATE SEAL OF TRUSTEE]
Attest:
By:
--------------------------
Name:
Title:
00
XXXXX XX XXXXXXXXX
XXXXXX XX XXXXXXX
Xx this _____ day of _________________, 2000 before me
personally came _________________, to me personally known, who,
being by me duly sworn, did depose and say that he resides at
______________; that he is a ______________________ of Freeport-
McMoRan Copper & Gold Inc., one of the corporations described in
and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that
he signed his name thereto by like authority.
[NOTARIAL SEAL]
______________________________
Notary Public
00
XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX
Xx this _____ day of _____________________, 2000, before me
personally came _______________, to me personally known, who, being
by me duly sworn, did depose and say that he resides at
_________________; that he is a _____________ of ________________,
one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
___________________________
Notary Public
68
