Exhibit 4(b)
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UNITED STATES SURGICAL CORPORATION
TO
THE BANK OF NEW YORK,
Trustee
INDENTURE
Dated as of __________
Subordinated Debt Securities
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TABLE OF CONTENTS (1)
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Recitals Of The Company
ARTICLE I Definitions And Other Provisions Of General Application
SECTION 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . .1
"Act". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
"Affiliate". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
"Authenticating Agent". . . . . . . . . . . . . . . . . . . . . . . . . . .2
"Authorized Newspaper" . . . . . . . . . . . . . . . . . . . . . . . . . . .2
"Bearer Security". . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
"Board of Directors" . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
"Board Resolution" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
"Book-Entry Security". . . . . . . . . . . . . . . . . . . . . . . . . . . .2
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
"CEDEL S.A." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
"Commission" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
"Common Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
"Company". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
"Company Request". . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
"Corporate Trust Office" . . . . . . . . . . . . . . . . . . . . . . . . . .3
"Corporation". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
"Coupon" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
"Defaulted Interest" . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
"Depositary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
"Dollar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
"Euro-clear" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
"Exchange Date". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
"Holder" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
"Indenture". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
"Interest" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
"Interest Payment Date". . . . . . . . . . . . . . . . . . . . . . . . . . .4
"Maturity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
"Officers' Certificate". . . . . . . . . . . . . . . . . . . . . . . . . . .4
"Opinion of Counsel" . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
"Original Issue Discount Security" . . . . . . . . . . . . . . . . . . . . .4
"Outstanding". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
"Place of Payment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
"Predecessor Security" . . . . . . . . . . . . . . . . . . . . . . . . . . .5
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(1) NOTE: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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"Redemption Date". . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
"Redemption Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
"Registered Security". . . . . . . . . . . . . . . . . . . . . . . . . . . .6
"Regular Record Date". . . . . . . . . . . . . . . . . . . . . . . . . . . .6
"Responsible Officer". . . . . . . . . . . . . . . . . . . . . . . . . . . .6
"Securities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
"Security Register". . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
"Senior Debt". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
"Special Record Date". . . . . . . . . . . . . . . . . . . . . . . . . . . .7
"Stated Maturity". . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
"Trustee". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
"Trust Indenture Act". . . . . . . . . . . . . . . . . . . . . . . . . . . .7
"United States". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
"United States Alien". . . . . . . . . . . . . . . . . . . . . . . . . . . .8
"U.S. Government Obligations". . . . . . . . . . . . . . . . . . . . . . . .8
SECTION 1.2. Compliance Certificates and Opinions. . . . . . . . . . . . . .8
SECTION 1.3. Form of Documents Delivered to Trustee. . . . . . . . . . . . .9
SECTION 1.4. Acts of Holders.. . . . . . . . . . . . . . . . . . . . . . . .9
SECTION 1.5. Notices, Etc., to Trustee and Company.. . . . . . . . . . . . 12
SECTION 1.6. Notice to Holders of Securities; Waiver.. . . . . . . . . . . 12
SECTION 1.7. Language of Notices, Etc. . . . . . . . . . . . . . . . . . . 13
SECTION 1.8. Conflict with Trust Indenture Act.. . . . . . . . . . . . . . 13
SECTION 1.9. Effect of Headings and Table of Contents. . . . . . . . . . . 13
SECTION 1.10. Successors and Assigns. . . . . . . . . . . . . . . . . . . . 13
SECTION 1.11. Separability Clause.. . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.12. Benefits of Indenture.. . . . . . . . . . . . . . . . . . . . 13
SECTION 1.13. Governing Law.. . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.14. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.15. Judgment Currency.. . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE II Security Forms
SECTION 2.1. Forms Generally.. . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.2. Form of Trustee's Certificate of Authentication.. . . . . . . 15
SECTION 2.3. Securities in Global Form.. . . . . . . . . . . . . . . . . . 15
SECTION 2.4. Form of Legend for Book-Entry Securities. . . . . . . . . . . 16
SECTION 2.5. Form of Conversion Notice.. . . . . . . . . . . . . . . . . . 17
ARTICLE III The Securities
SECTION 3.1. Amount Unlimited; Issuable in Series. . . . . . . . . . . . . 17
SECTION 3.2. Denominations.. . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.3. Execution, Authentication, Delivery and Dating. . . . . . . . 20
SECTION 3.4. Temporary Securities. . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.5. Registration, Registration of Transfer and Exchange.. . . . . 24
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities and Coupons. 27
SECTION 3.7. Payment of Interest; Interest Rights Preserved. . . . . . . . 28
SECTION 3.8. Persons Deemed Owners.. . . . . . . . . . . . . . . . . . . . 29
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SECTION 3.9. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.10. Computation of Interest.. . . . . . . . . . . . . . . . . . . 30
SECTION 3.11. Electronic Security Issuance. . . . . . . . . . . . . . . . . 30
SECTION 3.12. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE IV Satisfaction And Discharge
SECTION 4.1. Satisfaction and Discharge of Indenture.. . . . . . . . . . . 31
SECTION 4.2. Application of Trust Money. . . . . . . . . . . . . . . . . . 32
SECTION 4.3. Company's Option to Effect Defeasance or Covenant Defeasance. 32
SECTION 4.4 Discharge and Defeasance. . . . . . . . . . . . . . . . . . . 32
SECTION 4.5 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.6. Conditions to Defeasance or Covenant Defeasance . . . . . . . 33
ARTICLE V Remedies
SECTION 5.1. Events of Default. . . . . . . . . . . . . . . . . . . . . . .36
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment . . . . . .37
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.4. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . 39
SECTION 5.5. Trustee May Enforce Claims Without Possession of Securities
or Coupons. . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.6. Application of Money Collected. . . . . . . . . . . . . . . . 40
SECTION 5.7. Limitation on Suits.. . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest. . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.9. Restoration of Rights and Remedies. . . . . . . . . . . . . . 41
SECTION 5.10. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . 41
SECTION 5.11. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . 41
SECTION 5.12. Control by Holders of Securities. . . . . . . . . . . . . . . 42
SECTION 5.13. Waiver of Past Defaults.. . . . . . . . . . . . . . . . . . . 42
SECTION 5.14. Undertaking for Costs.. . . . . . . . . . . . . . . . . . . . 42
SECTION 5.15. Waiver of Stay or Extension Laws. . . . . . . . . . . . . . . 43
ARTICLE VI The Trustee
SECTION 6.1. Certain Rights of Trustee.. . . . . . . . . . . . . . . . . . 43
SECTION 6.2. Not Responsible for Recitals or Issuance of Securities. . . . 44
SECTION 6.3. May Hold Securities.. . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.4. Money Held in Trust.. . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.5. Compensation and Reimbursement. . . . . . . . . . . . . . . . 45
SECTION 6.6. Resignation and Removal; Appointment of Successor.. . . . . . 45
SECTION 6.7. Acceptance of Appointment by Successor. . . . . . . . . . . . 46
SECTION 6.8. Disqualification; Conflicting Interests.. . . . . . . . . . . 47
SECTION 6.9. Corporate Trustee Required; Eligibility.. . . . . . . . . . . 48
SECTION 6.10. Preferential Collection of Claims Against Company.. . . . . . 48
SECTION 6.11. Merger, Conversion Consolidation or Succession to Business. . 48
SECTION 6.12. Appointment of Authenticating Agent.. . . . . . . . . . . . . 48
SECTION 6.13. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE VII Holders' Lists And Reports By Trustee And Company
SECTION 7.1. Preservation of Information; Communications to Holders. . . . 50
SECTION 7.2. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . 52
SECTION 7.3. Reports by Company. . . . . . . . . . . . . . . . . . . . . . 52
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ARTICLE VIII
Consolidation, Merger, Sale, Lease, Transfer Or Other Disposition
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms. . . . . 52
SECTION 8.2. Successor Substituted.. . . . . . . . . . . . . . . . . . . . 53
ARTICLE IX Supplemental Indentures
SECTION 9.1. Supplemental Indentures Without Consent of Holders. . . . . . 53
SECTION 9.2. Supplemental Indentures with Consent of Holders.. . . . . . . 55
SECTION 9.3. Execution of Supplemental Indentures. . . . . . . . . . . . . 56
SECTION 9.4. Effect of Supplemental Indentures.. . . . . . . . . . . . . . 56
SECTION 9.5. Conformity with Trust Indenture Act.. . . . . . . . . . . . . 56
SECTION 9.6. Reference in Securities to Supplemental Indentures. . . . . . 56
SECTION 9.7. Effect on Senior Debt.. . . . . . . . . . . . . . . . . . . . 56
ARTICLE X Covenants
SECTION 10.1. Payment of Principal, Premium and Interest. . . . . . . . . . 57
SECTION 10.2. Maintenance of Office or Agency.. . . . . . . . . . . . . . . 57
SECTION 10.3. Money for Securities Payments to Be Held in Trust.. . . . . . 58
SECTION 10.4. Additional Amounts. . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.5. Existence.. . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.6. [Intentionally Omitted]
SECTION 10.7. Statement by Officers as to Default.. . . . . . . . . . . . . 61
SECTION 10.8 Calculation of Original Issue Discount. . . . . . . . . . . . 61
ARTICLE XI Redemption Of Securities
SECTION 11.1. Applicability of Article. . . . . . . . . . . . . . . . . . . 61
SECTION 11.2. Election to Redeem; Notice to Trustee.. . . . . . . . . . . . 61
SECTION 11.3. Selection by Trustee of Securities to Be Redeemed.. . . . . . 62
SECTION 11.4. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.5. Deposit of Redemption Price.. . . . . . . . . . . . . . . . . 63
SECTION 11.6. Securities Payable on Redemption Date.. . . . . . . . . . . . 63
SECTION 11.7. Securities Redeemed in Part.. . . . . . . . . . . . . . . . . 64
ARTICLE XII Sinking Funds
SECTION 12.1. Applicability of Article. . . . . . . . . . . . . . . . . . . 64
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities.. . . . 65
SECTION 12.3. Redemption of Securities for Sinking Fund.. . . . . . . . . . 65
ARTICLE XIII Meetings Of Holders Of Securities
SECTION 13.1. Purposes for Which Meetings May be Called.. . . . . . . . . . 65
SECTION 13.2. Call, Notice and Place of Meetings. . . . . . . . . . . . . . 66
SECTION 13.3. Persons Entitled to Vote at Meetings. . . . . . . . . . . . . 66
SECTION 13.4. Quorum; Action. . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 13.5. Determination of Voting Rights; Conduct and Adjournment of
Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 13.6. Counting Votes and Recording Action of Meetings.. . . . . . . 68
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ARTICLE XIV Conversion Of Securities
SECTION 14.1. Applicability of Article. . . . . . . . . . . . . . . . . . . 69
SECTION 14.2. Exercise of Conversion Privilege. . . . . . . . . . . . . . . 69
SECTION 14.3. No Fractional Shares. . . . . . . . . . . . . . . . . . . . . 70
SECTION 14.4. Adjustment of Conversion Price. . . . . . . . . . . . . . . . 71
SECTION 14.5. Notice of Certain Corporate Actions.. . . . . . . . . . . . . 71
SECTION 14.6. Reservation of Shares of Common Stock.. . . . . . . . . . . . 72
SECTION 14.7. Payment of Certain Taxes upon Conversion. . . . . . . . . . . 72
SECTION 14.8. Nonassessability. . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 14.9. Effect of Consolidation or Merger on Conversion Privilege . . 73
SECTION 14.10. Duties of Trustee Regarding Conversion. . . . . . . . . . . . 74
SECTION 14.11. Repayment of Certain Funds upon Conversion. . . . . . . . . . 74
ARTICLE XV Subordination Of Securities
SECTION 15.1. Securities Subordinate to Senior Debt.. . . . . . . . . . . . 75
SECTION 15.2. Payment Over of Proceeds upon Dissolution, Etc. . . . . . . . 75
SECTION 15.3. Prior Payment to Senior Debt Upon Acceleration of
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 15.4. No Payment When Senior Debt in Default. . . . . . . . . . . . 77
SECTION 15.5. Payment Permitted in Certain Situations.. . . . . . . . . . . 77
SECTION 15.6. Subrogation to Rights of Holders of Senior Debt.. . . . . . . 78
SECTION 15.7. Provisions Solely to Define Relative Rights.. . . . . . . . . 78
SECTION 15.8. Trustee to Effectuate Subordination.. . . . . . . . . . . . . 78
SECTION 15.9. No Waiver of Subordination Provisions.. . . . . . . . . . . . 79
SECTION 15.10. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 15.11. Reliance on Judicial Order or Certificate of Liquidating
Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 15.12. Trustee Not Fiduciary for Holders of Senior Debt. . . . . . . 80
SECTION 15.13. Rights of Trustee as Holder of Senior Debt, Preservation of
Trustee's Rights. . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 15.14. Article Applicable to Paying Agents . . . . . . . . . . . . . 80
SECTION 15.15. Certain Conversions Deemed Payment. . . . . . . . . . . . . . 81
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
Section 310(a)(1)....................................... 6.9
(a)(2)....................................... 6.9
(a)(3)....................................... Not Applicable
(a)(4)....................................... Not Applicable
(b).......................................... 6.8
............................................. 6.6
Section 311(a).......................................... 6.10
(b).......................................... 6.10
Section 312(a).......................................... 7.1
(b).......................................... 7.1
(c).......................................... 7.1
Section 313(a).......................................... 7.2
(b).......................................... 7.2
(c).......................................... 7.2
(d).......................................... 7.2
Section 314(a).......................................... 7.3
(a)(4)....................................... 1.1
............................................. 10.7
(b).......................................... Not Applicable
(c)(1)....................................... 1.2
(c)(2)....................................... 1.2
(c)(3)....................................... Not Applicable
(d).......................................... Not Applicable
(e).......................................... 1.2
Section 315(a).......................................... 6.1
(b).......................................... 6.13
(c).......................................... 6.1
(d).......................................... 6.1
(e).......................................... 5.14
Section 316(a).......................................... 1.1
(a)(1)(A).................................... 5.2
............................................. 5.12
(a)(1)(B).................................... 5.13
(a)(2)....................................... Not Applicable
(b).......................................... 5.8
(c).......................................... 1.4
Section 317(a)(1)....................................... 5.3
(a)(2)....................................... 5.4
(b).......................................... 10.3
Section 318(a).......................................... 1.8
__________________
*Note: This Cross-Reference Table is not part of the Indenture.
vi
INDENTURE, dated as of __________, between United States Surgical
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000, and The Bank of New York, a
New York banking corporation, as Trustee (herein called the "Trustee").
Recitals Of The Company
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured and
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of a series thereof, as follows:
ARTICLE I
Definitions And Other Provisions Of General Application
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein; and
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States of
America at the date of such computation.
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.12 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or
holidays, and of general circulation in the place, in connection with which
the term is used, or in the financial community of such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any
Business Day.
"Bearer Security" means any Security in the form established pursuant
to Section 2.1 which is payable to bearer.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Book-Entry Security" means a Security bearing the legend specified in
Section 2.4, evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or nominee. Book-Entry Securities shall not be deemed to be
securities in global form for purposes of Sections 2.1 and 2.3 and Article
III of the Indenture.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.
"CEDEL S.A." means CEDEL BANK, SOCIETE ANONYME.
"Commission" means the United States Securities and Exchange Commission.
2
"Common Stock" includes any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President,
its Chief Financial Officer, or its Treasurer, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be administered, which at the date hereof is 000 Xxxxxxx Xxxxxx, Xxxxx
00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 3.7.
"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 Book-Entry
Securities, the clearing agency registered under the Securities Exchange Act of
1934, as amended specified for that purpose as contemplated by Section 3.1.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Date" has the meaning specified in Section 3.4.
"Holder", when used with respect to any Security, means in the case of a
Registered Security, the Person in whose name the Security is registered in the
Security Register and in the case of a Bearer Security the bearer thereof and,
when used with respect to any coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered
3
into pursuant to the applicable provisions hereof and shall include the terms of
particular series of Securities established as contemplated by Section 3.1.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date" , when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Company's
Chairman of the Board, its President, its Chief Financial Officer, its Treasurer
or any Vice President, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities and any coupons appertaining thereto; provided
that, if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have
4
given any request, demand, authorization, direction, notice, consent or
waiver hereunder or whether a quorum is present at a meeting of Holders of
Securities (i) the principal amount of an Original Issue Discount Security
that shall be deemed to be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such determination
upon acceleration of the Maturity thereof pursuant to Section 5.2, (ii) the
principal amount of a Security denominated in a foreign currency or
currencies shall be the U.S. dollar equivalent, determined on the date of
original issuance of such Security, of the principal amount (or, in the
case of an Original Issue Discount Security, the U.S. dollar equivalent on
the date of original issuance of such Security of the amount determined as
provided in (i) above) of such Security, and (iii) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, or upon any such determination as to
the presence of a quorum, only Securities which a Responsible Officer of
the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor; and
(iv) Securities as to which Defeasance has been effected pursuant to
Section 4.3.
"Paying Agent" means any Person authorized by the Company to pay the
principal of and any premium and interest on any Securities or any Coupons
appertaining thereto on behalf of the Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, trust, unincorporated organization or government or
any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
10.2, the principal of and any premium and interest on the Securities of that
series are payable as specified as contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
5
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 2.1 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 3.1., whether or not such day is a
Business Day.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.5.
"Senior Debt" means the principal of (and premium, if any) and interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding) on all
indebtedness of the Company (including, without limitation, indebtedness
incurred pursuant to any long-term credit arrangement or facility (or any
refinancing thereof) to which the Company is a party and indebtedness of others
guaranteed by the Company), other than the Securities, whether outstanding on
the date of this Indenture or thereafter created, incurred or assumed, which is
(i) for money borrowed, (ii) evidenced by a note or similar instrument given in
connection with the acquisition of any businesses, properties or assets of any
kind, (iii) obligations of the Company for rent and other amounts payable in
respect of the Company's leased facilities located at North Haven, Connecticut
(the "North Haven Facilities"), under a lease agreement and participation
agreement, each dated January 14, 1993 as amended from time to time, to the
extent such obligations equal principal and interest payable to holders of notes
from time to time issued by the lessor of the North Haven Facilities pursuant to
a trust indenture dated as of January 14, 1993, as amended from time to time or
(iv) obligations of the Company as lessee under leases required to be
capitalized on the balance sheet of the lessee under generally accepted
accounting principles or leases of
6
property or assets made as part of any sale and leaseback transaction to which
the Company is a party, including amendments, renewals, extensions,
modifications and refundings of any such indebtedness or obligation, unless in
any case in the instrument creating or evidencing any such indebtedness or
obligation or pursuant to which the same is outstanding it is provided that such
indebtedness or obligation is not superior in right of payment to the
Securities; provided however, Senior Debt will not include (1) any obligation of
the Company to any Subsidiary, (2) any liability for Federal, state, local or
other taxes owed or owing by the Company, (3) any accounts payable or other
liability to trade creditors arising in the ordinary course of business
(including guarantees thereof or instruments evidencing such liabilities), (4)
any obligations with respect to any capital stock of the Company or (5) any
indebtedness incurred in violation of the applicable Indenture.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 3.7.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a Coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" of any Person means (i) any Person of which more than 50%
of the total voting power of shares of capital stock entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the same time owned or controlled, directly
or indirectly, by any Person or one or more of the Subsidiaries of that Person
or a combination thereof, and (ii) any partnership, joint venture or other
Person in which such Person or one or more of the Subsidiaries of that Person or
a combination thereof has the power to control by contract or otherwise the
board of directors or equivalent governing body or otherwise controls such
entity.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
7
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
nonresident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States which, in
either case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with
respect to any such U.S. Government Obligations or a specific payment of
principal of or interest on any such U.S. Government Obligations held by such
custodian for the account of the holder of such depository receipt, provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of principal of or interest on the U.S.
Government Obligations evidenced by such depository receipt.
SECTION 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, 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, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion by or on behalf of the Company with respect to
compliance with a condition or covenant provided for in this Indenture, except
for certificates provided for in Section 10.7, shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, 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
8
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders of such series may, alternatively, be embodied in and evidenced
by the record of Holders of Securities of such series voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of
Holders of Securities of such series duly called and held in accordance with the
provisions of Article XIII, or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent or proxy, or of the holding by any Person of a Security, shall be
sufficient for
9
any purpose of this Indenture and (subject to Section 6.1) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Section.
The record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 13.6.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(f) With respect to the Securities of any Series, upon receipt by the
Trustee of (i) any written notice directing the time, method or place of
conducting any proceeding or exercising any trust or power pursuant to Section
5.12 with respect to Securities of such series or (ii) any written demand,
request or notice with respect to any matter on which the Holders of Securities
of such series are entitled to act under this Indenture, in each
10
case from Holders of less than, or proxies representing less than, the requisite
principal amount of Outstanding Securities of such series entitled to give such
demand, request or notice, the Trustee shall establish a record date for
determining Holders of Outstanding Securities of such series entitled to join in
such demand, request or notice, which record date shall be the close of business
on the day the Trustee received such demand, request or notice. The Holders on
such record date, or their duly designated proxies, and only such Persons, shall
be entitled to join in such demand, request or notice whether or not such
Holders remain Holders after such record date; provided, however, that unless
the Holders of the requisite principal amount of Outstanding Securities of such
series shall have joined in such demand, request or notice prior to the day
which is the ninetieth day after such record date, such demand, request or
notice shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, (i) after the expiration of such 90-day period,
a new demand, request or notice identical to a demand, request or notice which
has been canceled pursuant to the proviso to the preceding sentence or (ii)
during any such 90-day period, a new demand, request or notice which has been
canceled pursuant to the proviso to the preceding sentence or (iii) during any
such 90-day period, a new demand, request or notice contrary to or different
from such demand, request or notice, in either of which events a new record date
shall be established pursuant to the provisions of this clause.
(g) The Company may set any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders of Securities of such series. With regard to any record date set
pursuant to this paragraph, the Holders of Outstanding Securities of the
relevant series on such record date (or their duly appointed agents), and only
such Persons, shall be entitled to give or take the relevant action, whether or
not such Holders remain Holders after such record date. With regard to any
action that may be given or taken hereunder only by Holders of a requisite
principal amount of Outstanding Securities of any series (or their duly
appointed agents) and for which a record date is set pursuant to this paragraph,
the Company may, at its option, set an expiration date after which no such
action purported to be given or taken by any Holder shall be effective hereunder
unless given or taken on or prior to such expiration date by Holders of the
requisite principal amount of Outstanding Securities of such series on such
record date (or their duly appointed agents). On or prior to any expiration date
set pursuant to this paragraph, the Company may, on one or more occasions at its
option, extend such date to any later date. Nothing in this paragraph shall
prevent any Holder (or any duly appointed agent thereof) from giving or taking,
after any expiration date, any action identical to, or, at any time, contrary to
or different from, any action given or taken, or purported to have been given or
taken, hereunder by a Holder on or prior to such date, in which event the
Company may set a record date in respect thereof pursuant to this paragraph.
Notwithstanding the foregoing or the Trust Indenture Act, the Company shall not
set a record date for, and the provisions of this paragraph shall not apply with
respect to, any action to be given or taken by Holders pursuant to Section 5.1,
5.2 or 5.12.
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SECTION 1.5. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
instrument, to the attention of its Treasurer, or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.6. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event:
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each Holder
of a Registered Security affected by such event, at the address of such Holder
as it appears in the Security Register, not earlier than the earliest date, and
not later than the latest date, prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New York
and in such other city or cities as may be specified in such Securities on a
Business Day at least twice, the first such publication to be not earlier
than the earliest date, and not later than the latest date, prescribed for
the giving of such notice.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute sufficient notice to such Holders for
every purpose hereunder. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice mailed to any particular Holder of a Registered Security
shall affect the sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification as shall be given with the approval of the Trustee
shall constitute sufficient notice to such Holders for every purpose hereunder.
Neither the failure to give notice by
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publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 1.7. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
SECTION 1.8. Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by, or with another provision (an
"incorporated provision") included in this Indenture by operation of Sections
310 to 318, inclusive, of the Trust Indenture Act, such imposed duties or
incorporated provision shall control.
SECTION 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.11. Separability Clause.
In case any provision in this Indenture or the Securities or coupons shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 1.12. Benefits of Indenture.
Nothing in this Indenture or the Securities or coupons, express or implied,
shall give to any Person, other than the parties hereto, their successors
hereunder, the holders of Senior Debt, and the Holders of Securities and
coupons, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
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SECTION 1.13. Governing Law.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of New York without regard to
conflicts of laws.
SECTION 1.14. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
or coupons other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section)
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, to such succeeding Business Day.
SECTION 1.15. Judgment Currency.
The Company agrees, to the fullest extent that 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 on the Securities of any series
from the currency in which such sum is payable in accordance with the terms of
such Securities (the "Required Currency") into a currency in which a judgment
will be rendered (the "Judgment Currency"), the rate of exchange used shall be
the rate at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding that on which a final
unappealable judgment is rendered 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.
14
ARTICLE II
Security Forms
SECTION 2.1. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in such form
(including temporary or permanent global form) as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or securities
depositary or as may, consistently herewith, be determined by the officers
executing such Securities or coupons, as evidenced by their execution of the
Securities or coupons. If temporary Securities of any series are issued in
global form as permitted by Section 3.4, the form thereof shall be
established as provided in the preceding sentence. If the forms of Securities
or coupons of any series (or any such temporary global Security) are
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 3.3 for the authentication and delivery
of such Securities (or any such temporary global Security) or coupons.
Unless otherwise specified as contemplated by Section 3.1, Securities in
bearer form shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities or
coupons, as evidenced by their execution of such Securities or coupons.
SECTION 2.2. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
The Bank of New York, As Trustee
By Authorized Signatory
SECTION 2.3. Securities in Global Form.
If Securities of a series are issuable in global form, as contemplated by
Section 3.1, then, notwithstanding clause (12) of Section 3.1 and the provisions
of Section 3.2,
15
any such Security shall represent such of the Outstanding Securities of such
series as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities from time to time endorsed thereon
and that the aggregate amount of Outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or decrease in the amount,
of Outstanding Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 3.3 or Section 3.4. Subject to the provisions of Section 3.3
and, if applicable, Section 3.4, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 3.3 or 3.4 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 1.2 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 3.3 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 1.2 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.3.
Notwithstanding the provisions of Sections 2.1 and 3.7, unless otherwise
specified as contemplated by Section 3.1, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security as shall be
specified in a written statement of the Holder of such permanent global Security
or, in the case of a permanent global Security in bearer form, of Euro-clear or
CEDEL S.A. which is provided to the Trustee by such Person.
SECTION 2.4. Form of Legend for Book-Entry Securities.
Any Book-Entry Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Security is exchangeable for Securities registered
in the name of a Person other than the Depositary or its nominee only in the
limited circumstances
16
described in the Indenture, and no transfer of this Security (other than a
transfer of this Security as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in such limited
circumstances."
SECTION 2.5. Form of Conversion Notice.
The form of conversion notice for the conversion of Securities into shares
of Common Stock or other securities of the Company shall be in substantially the
form included with the applicable form of Securities as shall be established
pursuant to Section 2.1 hereinabove.
ARTICLE III
The Securities
SECTION 3.1. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the series pursuant
to Section 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any Securities which,
pursuant to Section 3.3, are deemed never to have been authenticated and
delivered hereunder);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether any Securities of the series are
to be issuable initially in temporary global form and whether any Securities of
the series are to be issuable in permanent global form with or without coupons
and, if so, whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination and the circumstances under which
any such exchanges may occur, if other than in the manner provided in Section
3.5;
(4) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that Security
(or one or more
17
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if otherwise
than upon presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any interest
payable on a temporary global Security on an Interest Payment Date will be paid
if other than in the manner provided in Section 3.4;
(5) the date or dates on which the principal of the Securities of the
series is payable;
(6) the rate or rates at which the Securities of the series shall
bear interest, if any, or the formula pursuant to which such rate or rates shall
be determined, the date or dates from which any such interest shall accrue, the
Interest Payment Dates on which any such interest shall be payable, and the
Regular Record Date for any interest payable on any Registered Securities on any
Interest Payment Date and the basis upon which interest shall be calculated if
other than that of a 360-day year consisting of twelve 30-day months;
(7) the place or places where, subject to the provisions of Sections
11.4 and 10.2, the principal of and any premium and interest on Securities of
the series shall be payable, any Registered Securities of the series may be
surrendered for registration of transfer, Securities of the series may be
surrendered for conversion or exchange, notices and demands to or upon the
Company in respect of the Securities of the series and this Indenture may be
served and where notices to Holders of Bearer Securities pursuant to Section 1.6
will be published;
(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(9) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Holders on such terms and
conditions as may be set forth in an Officers' Certificate or supplemental
indenture;
(10) the obligation, if any, of the Company to redeem or purchase
Securities of the series, or particular Securities within the Series, pursuant
to any sinking fund or analogous provisions or at the option of a Holder
thereof, and the period or periods within which, the price or prices at which
and the terms and conditions upon such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(11) the terms of any right to convert or exchange Securities of the
series, either at the option of the Holder thereof or the Company, into or for
shares of Common Stock of the Company or other securities or property,
including, without limitation, the period or periods within which and the price
or prices (including adjustments thereto) at which any Securities of the series
shall be converted or exchanged, in whole or in part;
18
(12) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denomination or denominations in which any Bearer
Securities of the series shall be issuable, if other than the denomination of
$5,000;
(13) the currency or currencies, including composite currencies, in
which payment of the principal of and any premium and interest on the Securities
of the series shall be payable if other than the currency of the United States
of America;
(14) if the principal of and any premium or interest on the Securities
of the series are to be payable, at the election of the Company or a Holder
thereof, in a currency or currencies, including composite currencies, other than
that or those in which the Securities are stated to be payable, the currency or
currencies in which payment of the principal of and any premium and interest on
Securities of such series as to which such election is made shall be payable,
and the periods within which and the terms and conditions upon which such
election is to be made;
(15) if the amount of payments of principal of and any premium or
interest on the Securities of the series may be determined with reference to an
index, the manner in which such amounts shall be determined:
(16) if other than the principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.2;
(17) the Person who shall be the Security Registrar, if other than the
Trustee;
(18) whether the Securities of the series shall be issued upon
original issuance in whole or in part in the form of one or more Book-Entry
Securities and, in such case, (a) the Depositary with respect to such Book-Entry
Security or Securities; and (b) the circumstances under which any such
Book-Entry Security may be exchanged for Securities registered in the name of,
and any transfer of such Book-Entry Security may be registered to, a Person
other than such Depositary or its nominee, if other than as set forth in Section
3.5;
(19) if the provisions of Section 4.3 are applicable to the Securities
of such series;
(20) whether and under what conditions additional amounts will be
payable to Holders of Securities of the series pursuant to Section 10.4; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except, in the case
of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to the Board Resolution referred to above and (subject
to Section 3.3) set forth in, or
19
determined in the manner provided in, the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting forth the terms, or
the manner of determining the terms, of the series.
SECTION 3.2. Denominations.
Unless otherwise provided as contemplated by Section 3.1 with respect to
any series of Securities, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in the denomination of $5,000.
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Chief Financial Officer, its
Treasurer, any Assistant Treasurer or any Vice President under its corporate
seal reproduced thereon attested by its Secretary. The signature of any of
these officers on the Securities and the corporate seal of the Company may be
manual or facsimile. Coupons shall bear the facsimile signature of the Chief
Financial Officer, the Treasurer or any Assistant Treasurer of the Company.
Securities and Coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
Coupons appertaining thereto executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided, further,
that a Bearer Security may be delivered in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have furnished
a certificate in the form specified in such Security as to certain tax matters
in respect of United States citizens, dated no earlier than 15 days prior to the
earlier of the date on which such Bearer Security is delivered and the date on
which any temporary global Security first becomes exchangeable for such Bearer
Security in accordance with the terms of such temporary global Security and this
Indenture. If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 3.4, the notation of a
beneficial owner's interest therein upon original issuance of
20
such Security or upon exchange of a portion of a temporary global Security shall
be deemed to be delivery in connection with its original issuance of such
beneficial owner's interest in such permanent global Security. Except as
permitted by Section 3.6, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant Coupons for interest then matured have
been detached and cancelled.
If all the Securities of any series are not to be issued at one time and if
the Board Resolution and indenture supplement establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining the terms of particular
Securities of such series, such as interest rate, maturity date, date of
issuance and date from which interest shall accrue.
If the forms or terms of the Securities of the series and any related
Coupons have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 2.1 and 3.1, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(a) that such forms have been established in conformity with the
provisions of this Indenture;
(b) that such terms, or the manner of determining such terms, have been
established in conformity with the provisions of this Indenture; and
(c) that such Securities, together with any Coupons appertaining thereto,
when authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting the enforcement of creditors' rights and to general equity
principles.
If such forms or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the two preceding
paragraphs, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraphs at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
21
Each Registered Security shall be dated the date of its authentication; and
each Bearer Security shall be dated as of the date of original issuance of the
first Security of such series to be issued.
No Security or coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security,
or the Security to which such coupon appertains, a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9 together with a written statement (which
need not comply with Section 1.2 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, in
registered form or, if authorized, in bearer form with one or more coupons or
without coupons, and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Securities or coupons may
determine, as evidenced by their execution of such Securities or coupons. In the
case of any series issuable as Bearer Securities, such temporary Securities may
be in global form. A temporary Bearer Security shall be delivered only in
compliance with the conditions set forth in Section 3.3.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company maintained pursuant to Section 10.2 in a Place of Payment for such
series for the purpose of exchanges of Securities of such series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured coupons appertaining
thereto) the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like aggregate principal amount of definitive
Securities of the same series and of like tenor of authorized denominations;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Registered Security.
22
If temporary Securities of any series are issued in global form, any such
temporary global Security shall, unless otherwise provided therein, be delivered
to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euro-clear and CEDEL S.A., for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities of that series, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Company. On
or after the Exchange Date such temporary global Security shall be surrendered
by the Common Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for definitive
Securities of such series without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such temporary
global Security to be exchanged; provided, however, that, unless otherwise
specified in such temporary global Security, upon such presentation by the
Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euro-clear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL S.A. as to the portion of such temporary
global Security held for its account then to be exchanged, each in such form as
shall be specified in such Security. The definitive Securities to be delivered
in exchange for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by Section 3.1,
and, if any combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that definitive Bearer Securities shall be
delivered in exchange for a portion of a temporary global Security only in
compliance with the requirements of Section 3.3.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euro-clear
or CEDEL S.A., as the case may be, to request such exchange on his behalf and
delivers to Euro-clear or CEDEL S.A., as the case may be, a certificate in such
form as shall be specified in such Security, dated no earlier than 15 days prior
to the Exchange Date, copies of which certificate shall be available from the
offices of Euro-clear and CEDEL S.A., the Trustee, any Authenticating Agent
appointed for such series of Securities and each Paying Agent. Unless otherwise
specified in such temporary global Security, any such exchange shall be made
free of charge to the beneficial owners of such temporary global Security,
except that a Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Securities in person at the offices of
Euro-clear or CEDEL S.A. Definitive
23
Securities in bearer form to be delivered in exchange for any portion of a
temporary global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by section 3.1, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euro-clear and CEDEL S.A. on such
Interest Payment Date upon delivery by Euro-clear and CEDEL S.A. to the Trustee
of a certificate or certificates in such form as shall be specified in such
Security, for credit without further interest on or after such Interest Payment
Date to the respective accounts of the Persons who are the beneficial owners of
such temporary global Security on such Interest Payment Date and who have each
delivered to Euro-clear or CEDEL S.A., as the case may be, a certificate in such
form as shall be specified in such Security. Any interest so received by
Euro-clear and CEDEL S.A. and not paid as herein provided shall be returned to
the Trustee immediately prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company in accordance with Section
10.3.
SECTION 3.5. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency to be maintained
by the Company in accordance with Section 10.2 a register (the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Registered Securities and the
registration of transfers of Registered Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Registered
Securities and transfers of Registered Securities as herein provided.
Upon due surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 10.2 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive. Registered Securities may not be exchanged
for Bearer Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like
24
aggregate principal amount and tenor, upon surrender of the Bearer Securities to
be exchanged at any such office or agency, with all unmatured coupons, and all
matured coupons in default appertaining thereto. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company in an
amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Securities shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 10.2, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 3.1, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such
interests for Securities of such series and of like tenor and principal
amount of another authorized form and denomination, as specified as
contemplated by Section 3.1, then without unnecessary delay but in any event
not later than the earliest date on which such interests may be so exchanged,
the Company shall deliver to the Trustee definitive Securities of that series
in aggregate principal amount equal to the principal amount of such permanent
global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security
shall be surrendered by the Common Depositary or such other depositary or
Common Depositary as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
of such series without charge and the Trustee shall authenticate and deliver,
in exchange for each portion of such permanent
25
global Security, a like aggregate principal amount of definitive Securities
of the same series of authorized denominations and of like tenor as the
portion of such permanent global Security to be exchanged which, unless the
Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 3.1, shall be
in the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided,
however, that no Bearer Security delivered in exchange for a portion of a
permanent global Security shall be mailed or otherwise delivered to any
location in the United States. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record
Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and before
the opening of business at such office or agency on the related proposed date
for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed
date for payment, as the case may be, in respect of such Registered Security,
but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect
of such portion of such permanent global Security is payable in accordance
with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee or
any transfer agent) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar or
any transfer agent duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening
of business 15 days before the mailing of a notice of redemption of
Securities of that series to be redeemed and ending at the close of business
on (A) if Securities of the series are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and
(B) if Securities of the series are issuable as Bearer Securities, the day of
the first publication of the relevant notice of redemption or, if Securities
of the series are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption, in whole or in part, except the unredeemed portion of any
Security being
26
redeemed in part, or (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a Registered
Security of that series and like tenor, provided that such Registered Security
shall be simultaneously surrendered for redemption.
Notwithstanding the foregoing and except as otherwise specified or
contemplated by Section 3.1, any Book-Entry Security shall be exchangeable
pursuant to this Section 3.5 or Sections 3.4, 9.6 and 11.7 for Securities
registered in the name of, and a transfer of a Book-Entry Security or any series
may be registered to, any Person other than the Depositary for such Security or
its nominee only if (i) such Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Book-Entry Security or if
at any time such Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (ii) the Company executes and
delivers to the Trustee a Company Order that such Book-Entry Security shall be
so exchangeable and the transfer thereof so registrable or (iii) there shall
have occurred and be continuing an Event of Default, or an event which after
notice or lapse of time would be an Event of Default, with respect to the
Securities of such series. Upon the occurrence in respect of any Book-Entry
Security of any series of any one or more of the conditions specified in clauses
(i), (ii) or (iii) or the preceding sentence or such other conditions as may be
specified as contemplated by Section 3.1 for such series, such Book-Entry
Security may be exchanged for Securities registered in the names of, and the
transfer of such Book-Entry Security may be registered to, such Persons
(including Persons other than the Depositary with respect to such series and its
nominees) as such Depositary shall direct. Notwithstanding any other provision
of this Indenture, any Security authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, any Book-Entry Security shall
also be a Book-Entry Security and shall bear the legend specified in Section 2.4
except for any Security authenticated and delivered in exchange for, or upon
registration of transfer of, Book-Entry Security pursuant to the preceding
sentence.
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security and such mutilated
Security or a Security with a mutilated coupon, if any, shall be cancelled by
the Trustee in accordance with the Indenture.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or coupon
and (ii) such security or indemnity as may be required by them, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Company shall, subject to the
following paragraph, execute, and the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a new Security of
27
the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon; provided,
however, that principal of and any premium and interest on Bearer Securities
shall, except as otherwise provided in Section 10.2, be payable only at an
office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with any coupons appertaining thereto,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and any coupons appertaining thereto, or the destroyed, lost or stolen coupon
shall be at any time enforceable by anyone, and any such new Security and
coupons, if any, shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.7. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.1 with respect to
any series of Securities, interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clauses (1) and (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series (or their
respective
28
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Registered Security of
such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Registered Securities of
such series at the address of such Holder as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following Clause (2);
and
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.5, each
Security delivered under this Indenture upon registration of, transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.8. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 3.5 and 3.7) any
interest on such Security and for all other purposes whatsoever, whether or not
such Security shall be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
29
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the Bearer of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon shall be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 3.9. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Registered Securities and matured coupons so delivered shall
be promptly cancelled by the Trustee. All Bearer Securities and unmatured
coupons so delivered shall be cancelled. All Bearer Securities and unmatured
coupons held by the Trustee pending such cancellation or reissuance shall be
deemed to be delivered for cancellation for all purposes of this Indenture and
the Securities. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities and coupons held
by the Trustee shall be returned to the Company by the Trustee.
Notwithstanding the foregoing, with respect to any Book-Entry Security,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by a Depositary or impair, as between a
Depositary and holders of beneficial interests in any Book-Entry Security, the
operation of customary practices governing the exercise of the rights of the
Depositary (or its nominee) as Holder of such Book-Entry Security.
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
SECTION 3.11. Electronic Security Issuance.
The Securities may, pursuant to a Board Resolution and Officers'
Certificate complying with Section 3.1 hereof, be issued by means of an
electronic issuance system. Any such Security issuance instructions may specify
the name, address and taxpayer
30
identification number of the Holder, the principal amount and Maturity of the
Security, the interest rate to be borne by the Security and any other terms
not inconsistent with such Board Resolution and Officers' Certificate.
Nothing in this Section 3.11 shall be construed as prohibiting the Company
from issuing Securities by any means not inconsistent with the provisions of
this Indenture.
SECTION 3.12. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; PROVIDED that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of
a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE IV
Satisfaction And Discharge
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for, and any right to receive additional
amounts, as provided in Section 10.4), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when:
(1) either
(A) all Securities theretofore authenticated and delivered and all
coupons, if any, appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered Securities and
maturing after such exchange, whose surrender is not required or has been
waived as provided in Section 3.5, (ii) Securities and coupons which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.6, (iii) coupons appertaining to Securities called for
redemption and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 11.6, and (iv) Securities and coupons
for whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.3) have been delivered
to the Trustee for cancellation; or
(B) all such Securities and, in the case of (i) or (ii) below, any
coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation,
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company, and the Company, in the
case of (i), (ii) or (iii) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust
for the purpose, an amount sufficient to pay and discharge
the entire indebtedness on such Securities and coupons not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and any interest to the
date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
31
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Company under Section 6.5,
the obligations of the Trustee to any Authenticating Agent under Section 6.12
and, if money shall have been deposited with the Trustee pursuant to clause
(1)(B) of this Section, the obligations of the Trustee under Section 4.2 and
the last paragraph of Section 10.3 shall survive.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to this Article IV or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding
Securities.
SECTION 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.3, all money and U.S. Government Obligations deposited with the Trustee
pursuant to Section 4.1 or 4.3 and all money received by the Trustee in
respect of such U.S. Government Obligations shall be held in trust and
applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and any interest for whose payment such money and U.S.
Government Obligations has been deposited with or received by the Trustee.
Funds held pursuant to this Section shall not be subject to the claims of
holders of Senior Debt under Article XV.
SECTION 4.3. Company's Option to Effect Defeasance or Covenant Defeasance.
If applicable to a particular series of Securities, the Company may elect,
at its option at any time, to have Section 4.4 or Section 4.5 applied to any
such series of Securities or any Securities of such series, as the case may
be, designated pursuant to Section 3.1 as being defeasible pursuant to such
Section 4.4 or 4.5, in accordance with any applicable requirements provided
pursuant to Section 3.1 and upon compliance with the conditions set forth
below in this Article. Any such election shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 3.1 for
such Securities.
SECTION 4.4. Discharge and Defeasance.
If this Section 4.4 is specified, as contemplated by Section 3.1, to be
applicable to Securities of any series, then notwithstanding Section 4.1 and
upon compliance with the applicable conditions set forth in Section 4.6 (i)
the Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Securities of any such series
("Defeasance"); and (ii) the provisions of this Indenture as it relates to
such Outstanding Securities shall no longer be in effect (except as to the
rights of Holders of Securities to receive, solely from the trust fund
described in Section 4.6, payment of (x) the principal of (and premium, if
any) and any installment of principal of (and premium, if any) or interest on
such Securities on the Stated Maturity of such principal (and premium, if
any) or installment of principal (and premium, if any) or interest or upon
optional redemption and/or (y) any mandatory sinking fund payments or
analogous payments applicable to the Securities of that series on that day on
which such payments
32
are due and payable in accordance with the terms of the Indenture and of such
Securities, the Company's obligations with respect to such Securities under
Sections 3.4, 3.5, 3.6, 10.2, 10.3 and 10.4 and the rights, powers, trusts,
duties and immunities of the Trustee hereunder, including those under Section
6.5 hereof).
SECTION 4.5. Covenant Defeasance.
If this Section 4.5 is specified, as contemplated by Section 3.1, to be
applicable to any series of Securities or any Securities of such series, as
the case may be, (1) the Company shall be released from its obligations under
any covenants provided pursuant to Section 3.1(21), 9.1(2) or 9.1(7) for the
benefit of the Holders of such Securities that pursuant to the terms of such
Securities are defeasible pursuant to this Section 4.5 and (2) the occurrence
of any event specified in Sections 5.1(4) (with respect to and such covenants
provided pursuant to Section 3.1(21), 9.1(2), or 9.1(7) and 5.1(7) (if
pursuant to the terms of such Securities this Section 4.5 is applicable to
any such event specified in Section 5.1(7)) shall be deemed not to be or
result in an Event of Default, in each case with respect to such Securities
as provided in this Section on and after the date the conditions set forth in
Section 4.6 are satisfied (hereinafter called "Covenant Defeasance"). For
this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any such
specified Section (to the extent so specified in the case of Sections 5.1(4)
and 5.1(7)), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any
such Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 4.6. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions to the application of
Section 4.4 or Section 4.5 to any applicable series of
Securities or any Securities of such series, as the case may
be:
(1) either
(A) with respect to all Outstanding Securities of such series or such
Securities of such Series, as the case may be, with reference to this Section
4.6, the Company has deposited or caused to be deposited with the Trustee
irrevocably (but subject to the provisions of Section 4.2 and the last
paragraph of Section 10.3), as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
Securities, (X) lawful money of the United States in an amount, or (Y) U.S.
Government Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide not later than
the opening of business on the due dates of any payment referred to in clause
(i) or (ii) of this subparagraph (1)(A) lawful money of the United States in
an amount, or (z) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of
33
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge (i) the principal of (and
premium, if any) and each installment of principal (and premium, if any) and
interest on such Securities the Stated Maturity of such principal or
installment of principal or interest or upon optional redemption and (ii) any
mandatory sinking fund payments or analogous payments applicable to such
Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities; or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section 3.1,
to be applicable to the Securities of such series;
(2) the Company has paid or caused to be paid all other sums payable
with respect to such Securities;
(3) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to such
Securities shall have occurred and be continuing on the date of such deposit
and no Event of Default under Section 5.1(5) or Section 5.1(6) or event which
with the giving of notice or lapse of time, or both, would become an Event of
Default under Section 5.1(5) or Section 5.1(6) shall have occurred and be
continuing on the 91st day after such date;
(5) in the event of an election to have Section 4.4 apply to any
series of Securities, the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (a) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or (b) since the
date of this Indenture there has been a change in applicable federal income
tax law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of Securities of such series will not
recognize income, gain or loss for federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to federal income
tax on the same 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;
(6) in the event of an election to have Section 4.5 apply to any series
of Securities, the Company shall have delivered to the Trustee an Opinion of
Counsel, to the effect that the Holders of such Securities will not recognize
gain or loss for federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and will
be subject to federal income tax on the same amount, in the same manner and
at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(7) if the Securities of that series are then listed on any domestic
or foreign securities exchange, the Company shall have delivered to the
Trustee an Opinion
34
of Counsel to the effect that such deposit, defeasance and discharge will not
cause such Securities to be delisted; and
(8) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the Defeasance or Covenant Defeasance with respect
to such Securities of any such series have been complied with and an Opinion
of Counsel to the effect that either (i) as a result of such deposit and the
related exercise of the Company's option under this Article, registration is
not required under the Investment Company Act of 1940, as amended, by the
Company, the trust funds representing such deposit or the Trustee or (ii) all
necessary registrations under said Act have been effected.
Any deposits with the Trustee referred to in Section 4.6(1)(A) above shall
be irrevocable and shall be made under the terms of an escrow/trust agreement
in form and substance satisfactory to the Trustee. If any Outstanding
Securities of such series are to be redeemed prior to their Stated Maturity,
whether pursuant to any optional redemption provisions or in accordance with
any mandatory sinking fund requirement, the applicable escrow trust agreement
shall provide therefor and the Company shall make such arrangements as are
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Upon Defeasance with respect to all the Securities of a series, the terms
and conditions of such securities, including the terms and conditions with
respect thereto set forth in this Indenture, shall no longer be binding upon,
or applicable to, the Company; provided that the Company shall not be
discharged from any payment obligations in respect of Securities which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this
Section 4.6) of the Company under this Indenture with respect to any series
of Securities, the obligations of the Company to the Trustee under Section
6.5, and the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive with respect to such series of
Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request
any money or U.S. Government Obligations held by it as provided in this
Section 4.6 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
35
ARTICLE V
Remedies
SECTION 5.1. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be occasioned by the
provisions of Article XV or 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):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due
by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default", hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidation, assignee, trustee,
sequestrator or other similar official
36
of the Company or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidation,
assignee, trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its inability
to pay its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of
that series.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than as specified in
subparagraph (5) or (6) of Section 5.1) with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series may declare the principal amount
(or, if any of the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Securities of that series to be
due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) shall become immediately due and
payable. If an Event of Default specified in subparagraph (5) or (6) of
Section 5.1 occurs and is continuing with respect to Securities of any
series, then the principal of, premium, if any, and accrued and unpaid
interest, if any, on all of the Securities of such series shall IPSO FACTO
become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder of Securities of such series.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay,
37
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor in
such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that
series which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if,
(1) default is made in the payment of any interest on any Security
of any series when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at the Maturity thereof,
(3) the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities of that series and any coupons
appertaining thereto, to margin the whole amount then due and payable on such
Securities of that series and coupons for principal and any premium and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and on the premium, if any,
and overdue interest, at the rate or rates prescribed therefor in such
Securities of that series and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or
38
any other obligor upon such Securities and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of
the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any coupons appertaining thereto by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of
principal and any premium and interest owing and unpaid in
respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders of
Securities and coupons allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same, and any custodian, receiver, assignee, trustee, liquidation
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder of Securities
and coupons to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such
payments directly to the Holders of Securities and coupons, to
pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 6.5.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
of a Security or coupon any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or coupons or the rights of any
Holder thereof or to authorize the Trustee to vote in respect of the claim of
any Holder of a Security or coupon in any such proceeding.
39
SECTION 5.5. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or coupons or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall, subject to the provisions of Article XV, be for the
ratable benefit of the Holders of the Securities and coupons in respect of
which such judgment has been recovered.
SECTION 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal or any premium or interest, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 6.5; and
Second: Subject to the provisions of Article XV, to the
payment of the amounts then due and unpaid for principal of and any premium
and interest on the Securities and coupons in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities and coupons for principal and any premium and interest,
respectively.
SECTION 5.7. Limitation on Suits.
No Holder of any Security of any series or any related coupons
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless;
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
40
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series; it being
understood and intended that no one or more of such Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over
any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Section 3.7) interest on such Security, and any additional
amounts contemplated by Section 10.4 in respect of such Security or payment
of such coupon on the Stated Maturity or Maturities expressed in such
Security or coupon (or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders of Securities and coupons shall be restored severally
and respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons in
the last paragraph of Section 3.6, 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.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such
41
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders of Securities or coupons may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders of Securities or coupons, as the case may be.
SECTION 5.12. Control by Holders of Securities.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series; provided that,
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series and any coupons appertaining thereto waive any
past default hereunder with respect to the Securities of such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or any
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security or coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the
Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the
42
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Holder of any Security or coupon for the enforcement of the
payment of the principal of or any premium or interest on any Security or the
payment of any coupon on or after the Stated Maturity or Maturities expressed
in such Security or coupon (or, in the case of redemption, on or after the
Redemption Date).
SECTION 5.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE VI
The Trustee
SECTION 6.1. Certain Rights of Trustee.
Subject to the provisions of the Trust Indenture Act:
(a) in the absence of bad faith, the Trustee may conclusively rely
and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, coupon, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect
43
of any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any related
coupons pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other paper
or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it;
(i) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture; and
(j) the Trustee shall not be deemed to have notice of any default
or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such
a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and this Indenture.
SECTION 6.2. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except
the Trustee's certificates of authentication) and in any coupons shall be
taken as the statements of the Company, and the Trustee or any Authenticating
Agent assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 6.3. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to Section 6.8 and 6.10, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.4. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company.
44
SECTION 6.5. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee or any predecessor Trustee from time to
time compensation as shall be agreed between the Company and the Trustee in
writing for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee or any predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the compensation
and the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee and any 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 the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(5) or
Section 5.1(6), the expenses (including the reasonable charges and expenses
of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable Federal or State
bankruptcy, insolvency or similar law.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 6.6. Resignation and Removal; Appointment of Successor.
(a) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.7 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(b) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and to the Company. If the instrument of acceptance by a successor Trustee
required by Section 6.7 shall not have been delivered to the Trustee within
30 days after the giving of such notice or removal, the Trustee being removed
may petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of
the Trust Indenture Act after written request therefor by the Company or by
any Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9
and Section 310(a) of the Trust Indenture Act and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
45
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14 any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor Trustee or
Trustees.
(d) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 6.7. If, within one
year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in principal
amount of Outstanding Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment in accordance with the applicable
requirements of Section 6.7, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders of Securities of that series and accepted appointment in the manner
required by Section 6.7, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(e) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series in the manner provided in Section 1.6. Each notice shall include the
name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
SECTION 6.7. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
46
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (l) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees as
co-trustees of the same trust and that each such Trustee shall be trustee of
a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the execution and
delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.8. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided
by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.
47
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000. If such
Person publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect hereunder
specified in this Article.
SECTION 6.10. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).
SECTION 6.11. Merger, Conversion Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 6.12. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act
on behalf of the Trustee to authenticate Securities of such series issued
upon original issue or upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 3.6, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company. If such Authenticating Agent publishes reports of condition at least
annually,
48
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of such Authenticating Agent,
shall continue to be an Authenticating Agent provided such corporation shall
be otherwise eligible under this Section, without the execution or filing of
any paper or any further act on the part of the Trustee or such
Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall promptly give notice of such appointment to all Holders of Securities
pursuant to Section 1.6. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder with like effect as if originally
named as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York, As Trustee
By Authenticating Agent
By Authorized Signatory
49
If all of the Securities of a series may not be originally
issued at one time, and if the Company has an Affiliate eligible to be
appointed as an Authenticating Agent hereunder or the Trustee does not have
an office capable of authenticating Securities upon original issuance located
in a Place of Payment where the Company wishes to have Securities of such
series authenticated upon original issuance, the Trustee, if so requested by
the Company in writing (which writing need not comply with Section 1.2 and
need not be accompanied by an Opinion of Counsel), shall appoint in
accordance with this Section an Authenticating Agent (which if so requested
by the Company, shall be such Affiliate of the Company) having an office in a
Place of Payment designated by the Company with respect to such series of
Securities.
SECTION 6.13. Notice of Defaults.
If a default occurs hereunder with respect to Securities of
any series, the Trustee shall give the Holders of Securities of such series
notice of such default as and to the extent provided by the Trust Indenture
Act; provided, however, that in the case of any default of the character
specified in Section 5.1(4) with respect to Securities of such series, no
such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of the Section, the term "default" means
any event which is, or after notice of lapse of time or both would become, an
Event of Default with respect to Securities of such series.
ARTICLE VII
Holders' Lists And Reports By Trustee And Company
SECTION 7.1. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities (i) contained
in the most recent list furnished to the Trustee as provided in Section
312(a) of the Trust Indenture Act, (ii) received by the Trustee in its
capacity as Security Registrar and (iii) filed with it within the two
preceding years pursuant to Section 313(c)(2) of the Trust Indenture Act. The
Trustee may (i) destroy any list furnished to it as provided in Section
312(a) of the Trust Indenture Act upon receipt of a new list so furnished,
(ii) destroy any information received by it as Paying Agent (if so acting)
hereunder upon delivering to itself as Trustee, not earlier than
or of each year, a list containing the names and addresses of
the Holders of Securities obtained from such information since the delivery
of the next previous list, if any, (iii) destroy any list delivered to itself
as Trustee which was compiled from information received by it as Paying Agent
(if so acting) hereunder upon the receipt of a new list so delivered and (iv)
destroy not earlier than two years after filing, any information filed with
it pursuant to Section 313(c)(2) of the Trust Indenture Act. For purposes of
Section 312(a) of the Trust Indenture Act, the term "stated intervals" shall
mean and .
(b) If three or more Holders of Securities (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such
50
applicant has owned a Security for a period of at least six months preceding
the date of such application, and such application states that the applicants
desire to communicate with other Holders of Securities with respect to their
rights under this Indenture or under the Securities and is accompanied by a
copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five business days after
the receipt of such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
7.1(a), or
(ii) inform such applicants as to the approximate number
of Holders of Securities whose names and addresses appear in the
information preserved at the time by the Trustee in accordance
with Section 7.1(a), and as to the approximate cost of mailing
to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of
such applicants, mail to each Holder of Securities whose name and address
appears in the information preserved at the time by the Trustee in accordance
with Section 7.1(a) a copy of the form of proxy or other communication which
is specified in such request, with reasonable promptness after a tender to
the Trustee of the material to be mailed and of payment, or provision for the
payment of the reasonable expenses of mailing, unless within five days after
such tender the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing
would be contrary to the best interest of the Holders of Securities or would
be in violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter
an order refusing to sustain any of such objections or if after the entry of
an order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders of Securities with
reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.
(c) Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with Section
7.1(b), regardless of the source from which such information was derived and
that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under Section 7.1(b).
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SECTION 7.2. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant
thereto. If required by Section 313 (a) of the Trust Indenture Act, the
Trustee shall, within sixty days after each March 1 following the date of
this Indenture deliver to Holders a brief report, dated as of such March 1,
which complies with the provisions of such Section 313 (a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee when the Securities are
listed on any stock exchange and of any delisting thereof.
SECTION 7.3. Reports by Company.
The Company 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 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 shall be filed
with the Trustee within 15 days after the same is so required to be filed
with the Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE VIII
Consolidation, Merger, Sale, Lease,
Transfer Or Other Disposition
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge with or into
any other Person or sell, lease, transfer or otherwise dispose of its assets
substantially as an entirety to any Person, and the Company shall not permit
any Person to consolidate with or merge with or into the Company or to sell,
lease, transfer or otherwise dispose of its assets substantially as an
entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge with or
into another Person or sell, lease, transfer or otherwise dispose of its
assets substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by sale, lease, transfer or otherwise, the assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of and any premium and interest (including all additional
amounts, if any, payable pursuant to Section 10.4) on all the
52
Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or a
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, sale, lease, transfer or other disposition and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
SECTION 8.2. Successor Substituted.
Upon any consolidation or merger of the Company with or into
any other Person or any sale, lease, transfer or other disposition of the
assets of the Company substantially as an entirety in accordance with Section
8.1, the successor Person formed by such consolidation or into which the
Company is merged or to which sale, lease, transfer or other disposition is
made shall assume the obligations of the Company on the Securities and under
this Indenture with the same effect as if such successor Person had been
named as the Company herein, and thereafter, except in the case of a lease,
the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities and coupons.
ARTICLE IX
Supplemental Indentures
SECTION 9.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons,
the Company, when authorized by a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and
in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for
53
the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are expressly being included solely for
the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change
or eliminate any restrictions on the payment of principal of or any premium
or interest on Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be issued
in exchange for Bearer Securities of other authorized denominations or to
permit or facilitate the issuance of Securities in uncertificated form,
provided that any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any material
respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of appointment
thereunder 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 6.7(b); or
(9) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article XIV, including providing for
the conversion of the Securities into any security or property (other than
the Common Stock of the Company); or
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising under this
Indenture, provided that such action shall not adversely affect the interests
of the Holders of Securities of any series or any related coupons in any
material respect; or
(11) subject to Section 9.2(5) and Section 9.7, to make any change
to Article XV that would limit or terminate the benefits available to any
holder of Senior Debt under such Article.
54
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders of Securities of such series and any related coupons
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or change any obligation of the Company
to pay additional amounts pursuant to Section 10.4 (except as contemplated by
Section 8.1(1) and permitted by Section 9.1(1)), or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 5.2 or change the coin or currency in which any Security or any
premium or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver of certain defaults hereunder and their consequences provided for
in this Indenture, or reduce the requirements of Section 13.4 for quorum or
voting, or
(3) change any obligation of the Company to maintain an office or
agency for the purposes specified in Section 10.2, or
(4) modify any of the provisions of this Section or Section 5.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent of any
Holder of a Security or coupon with respect to changes in the references to
"the Trustee" and concomitant changes in this Section or the deletion of this
proviso, in accordance with the requirements of Sections 6.7(b) and 9.1(8), or
(5) make any change that adversely affects the right to convert
any Security as provided in Article XIV or pursuant to Section 3.1 (except as
permitted by Section 9.1) or decrease the conversion rate or increase the
conversion price of any such Security except as may otherwise be permitted by
Article XIV or modify any provisions of this Indenture relating to the
subordination of the Securities in a manner adverse to such Holder.
55
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not
to affect the rights under this Indenture of the Holders of Securities of any
other series.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.
SECTION 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder and of any coupons appertaining thereto shall be bound
thereby.
SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act of 1939, as
amended, in effect on such date.
SECTION 9.6. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 9.7. Effect on Senior Debt.
No supplemental indenture shall adversely affect the rights of
any holder of Senior Debt under Article XV without the consent of such holder.
56
ARTICLE X
Covenants
SECTION 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 3.1 with respect to any
series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender outside the
United States of the several coupons for such interest installments as are
evidenced thereby as they severally mature.
SECTION 10.2. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities, the
Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration
of transfer, exchange or conversion and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture
may be served. If Securities of a series are issuable as Bearer Securities,
the Company will maintain (A) in The City of New York, an office or agency
where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series
may be surrendered for conversion or exchange, where notices and demands to
or upon the Company in respect of the Securities of that series and this
Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise), (B)
subject to any laws or regulations applicable thereto, in a Place of Payment
for that series which is located outside the United States, an office or
agency where Securities of that series and related coupons may be presented
and surrendered for payment (including payment of any additional amounts
payable on Securities of that series pursuant to Section 10.4); provided,
however, that if the Securities of that series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland, the Luxembourg
Stock Exchange or any other stock exchange located outside the United States
and such stock exchange shall so require, the Company will maintain a Paying
Agent for the Securities of that series in London, Luxembourg or any other
required city located outside the United States, as the case may be, so long
as the Securities of that series are listed on such exchange, and (C) subject
to any laws or regulations applicable thereto in a Place of Payment for that
series located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for conversion
or exchange and where notices and demands to or upon the Company in respect
of the Securities of that series and this Indenture may be served. The
Company will give prompt notice to the Trustee and to the Holders as
57
provided in Sections 1.5 and 1.6, respectively, of the location and any
change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect
of any series of Securities or shall fail to furnish the Trustee with the
address thereof, such presentations and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Bearer Securities of
that series pursuant to Section 10.4) at the office of the Trustee for such
series located outside the United States, and the Company hereby appoints the
same as its agent to receive such respective presentations, surrenders,
notices and demands.
No payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to any account
maintained with a bank located in the United States; provided, however, that
if the Securities of a series are denominated and payable in Dollars, payment
of principal of and any premium and interest on any Bearer Security
(including any additional amounts payable on Securities of such series
pursuant to Section 10.4) shall be made at the office of the Company's Paying
Agent in The City of New York, if (but only if) payment in Dollars of the
full amount of such principal, premium, interest or additional amounts, as
the case may be, at all offices or agencies outside the United States
maintained for the purpose by the Company in accordance with this Indenture
is illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an
office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt
written notice to the Trustee and the Holders of any such designation or
rescission and of any change in the location of any such other office or
agency.
SECTION 10.3. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of and any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities it will, prior to each due date of the principal of and any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the
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principal and any premium or interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of and any
premium or interest on Securities of that series in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment of
principal of and any premium or interest on the Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust
by the Company or such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect
to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of and any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal and any premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
or any coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money and all
liability of the Company as trustee thereof shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in an Authorized Newspaper in each Place of Payment, notice that such
money remains unclaimed and that after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
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SECTION 10.4. Additional Amounts.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto additional amounts as provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of any Security
of any series or payment of any related coupon or the net proceeds received
on the sale or exchange of any Security of any series, such mention shall be
deemed to include mention of the payment of additional amounts provided for
in this Section to the extent that, in such context additional amounts are,
were or would be payable in respect thereof pursuant to the provisions of
this Section and express mention of the payment of additional amounts (if
applicable) in any provisions hereof shall not be construed as excluding
additional amounts in those provisions hereof where such express mention is
not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with
respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to each date
of payment of principal and any premium or interest if there has been any
change with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that
series or any related coupons who are United States Aliens without
withholding for or on account of any tax assessment or other governmental
charge described in the Securities of that series. If any such withholding
shall be required, then such Officers' Certificate shall specify by country
the amount, if any, required to be withheld on such payments to such Holders
of Securities or coupons and the Company will pay to the Trustee or such
Paying Agent the additional amounts required by this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or willful misconduct on their part arising out of or in
connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
SECTION 10.5. Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
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SECTION 10.6. [Intentionally Omitted]
SECTION 10.7. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate signed by its principal executive officer, principal financial
officer or principal accounting officer stating whether or not to the best
knowledge of the signer thereof the Company is in default (without regard to
periods of grace or notice requirements) in the performance and observance of
any of the terms, provisions and conditions of this Indenture, and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 10.8. Calculation of Original Issue Discount.
To the extent applicable with respect to any series of Original Issue
Discount Securities, the Company shall file with the Trustee promptly at the
end of each calendar year (i) a written notice specifying the amount of
original issue discount (including daily rates and accrual periods) accrued on
Outstanding Securities as of the end of such year and (ii) such other
specific information relating to such original issue discount as may then be
relevant under the Internal Revenue Code of 1986, as amended from time to
time.
ARTICLE XI
Redemption Of Securities
SECTION 11.1. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 3.1 for Securities of any series) in
accordance with this Article.
SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
an Officers' Certificate. In the case of any redemption, at the election of
the Company of the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to
be redeemed. In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, or (ii) pursuant to an
election of the Company which is subject to a condition specified in the
terms of such Securities, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or
condition.
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SECTION 11.3. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series and of like tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and of like tenor not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection, for redemption of portions (equal to
the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Registered Securities
of such series of a denomination larger than the minimum authorized
denomination for Securities of that series. If so specified in the Securities
of a series, partial redemptions must be in an amount not less than
$1,000,000 principal amount of Securities.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed
(so far as may be) to be the portion selected for redemption. Securities (or
portions thereof) which have been converted during a selection of Securities
to be redeemed shall be treated by the Trustee as Outstanding for the purpose
of such selection. In any case where more than one Security is registered in
the same name, the Trustee in its discretion may treat the aggregate
principal amount so registered as if it were represented by one Security.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 1.6
to the Holders of Securities to be redeemed not less than 30 nor more than 60
days prior to the Redemption Date.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed, and a
statement to the effect that on or after the Redemption Date upon surrender
of such Security a new Security in the principal amount equal to the
unredeemed portion will be issued;
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(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
(5) the place or places where such Securities, together in the case of
Bearer Securities with all coupons appertaining thereto, if any maturing
after the Redemption Date, are to be surrendered for payment of the
Redemption Price;
(6) that the redemption is for a sinking fund, if such is the case; and
(7) if applicable, the conversion rate or price, the date on which the
right to convert the Securities to be redeemed will terminate and the place
or places where such Securities may be surrendered for conversion.
A notice of redemption published as contemplated by Section 1.6 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.5. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 10.3) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 11.6. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall on the Redemption Date become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities so to be redeemed except
to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice together with all
coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price together
with accrued interest to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section
10.2) and, unless otherwise specified as contemplated by Section 3.1, only
upon presentation and surrender of coupons for such interest; and provided,
further, that, unless otherwise specified as contemplated by Section 3.1,
installments of interest on Registered Securities whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders of such
Securities or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and
the provisions of Section 3.7.
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If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security
may be paid after deducting from the Redemption Price an amount equal to the
face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 10.2) and unless otherwise specified as
contemplated by Section 3.1 only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 11.7. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder
of such Security without service charge, a new Registered Security or
Securities of the same series and of like tenor of any authorized
denomination as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the
Security so surrendered.
ARTICLE XII
Sinking Funds
SECTION 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series contemplated by Section 3.1 for
Securities of such series, except as otherwise specified pursuant to Section
3.1.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for
by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities
of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
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SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto,
and (2) may apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to
the Securities of such series required to be made pursuant to the terms of
such Securities, as provided for by the terms of such series; provided that
such Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.3. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 12.2 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 45 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 11.3 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 11.4. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
Meetings Of Holders Of Securities
SECTION 13.1. Purposes for Which Meetings May be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
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SECTION 13.2. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 13.1, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or in
London as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 1.6, not less than 21 nor
more than 180 days prior to the date fixed for the meeting (or, in the case
of a meeting of Holders with respect to Securities of a series all or part of
which are represented by a Book-Entry Security, not less than 20 nor more
than 40 days).
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 25% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the
Holders of Securities of such series for any purpose specified in Section
13.1, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt
of such request or shall not thereafter proceed to cause the meeting to be
held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New York or
in London for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this Section.
SECTION 13.3. Persons Entitled to Vote at Meetings.
Upon the calling of a meeting of Holders with respect to the Securities of
a series all or part of which are represented by a Book-Entry Security, a
record date shall be established for determining Holders of Outstanding
Securities of such series entitled to vote at such meeting, which record date
shall be the close of business on the day the notice of the meeting of
Holders is given in accordance with Section 13.2. The Holders on such record
date, and their designated proxies, and only such Persons, shall be entitled
to vote at any meeting of Holders. To be entitled to vote at any meeting of
Holders a Person shall (a) be a Holder of one or more Securities or (b) be a
Person appointed by an instrument in writing as proxy by a Holder of one or
more Securities; provided, however, that in the case of any meeting of
Holders with respect to the Securities of a series all or part of which are
represented by a Book-Entry Security, only Holders, or their designated
proxies, of record on the record date established pursuant to Section 13.3
hereof shall be entitled to vote at such meeting. The only Persons who shall
be entitled to be present or to speak at any meeting of Holders shall be the
Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
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SECTION 13.4. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series; provided, however, that if any
action is to be taken at such meeting with respect to a consent or waiver
which this Indenture expressly provides may be given by the Holders of a
specified percentage in aggregate principal amount of Outstanding Securities
of a series that is less or greater than a majority in principal amount of
the Outstanding Securities of a series, then, with respect to such action
(and only such action), the Persons entitled to vote such lesser or greater
percentage in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes of
the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any
other case the meeting may be adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 13.2 (a), except that such notice need
be given only once not less than five days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the outstanding Securities of such series which shall
constitute a quorum. Notwithstanding the foregoing, no meeting of Holders
with respect to Securities of any Series which is represented in whole or in
part by a Book-Entry Security, shall be adjourned to a date more than 90 days
after the record date for such meeting unless the Trustee shall send out a
new notice of meeting and establish, in accordance with Section 13.3, a new
record date for Holders entitled to vote at such meeting.
Except as limited by the proviso to Section 9.2, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of
a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 9.2 any
resolution with respect to any consent or waiver which this Indenture
expressly provides may be given by the Holders of a specified percentage in
aggregate principal amount of Outstanding Securities of a series that is less
or greater than a majority in principal amount of the Outstanding Securities
of a series may be adopted at a meeting or an adjourned meeting duly convened
and at which a quorum is present as aforesaid only by the affirmative vote of
the Holders of such specified percentage in principal amount of the
Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
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SECTION 13.5. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting
of Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner
specified in Section 1.4 and the appointment of any proxy shall be proved in
the manner specified in Section 1.4 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 1.4 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.4 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 13.2(b), in which
case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall
be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $ 1,000 principal amount of the Outstanding
Securities of such series held or represented by him; provided, however, that
no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 13.2 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 13.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any
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resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting.
A record, at least in duplicate, of the proceedings of each meeting of
Holders of Securities of any series shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 13.2 and, if applicable, Section 13.4. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE XIV
Conversion Of Securities
SECTION 14.1. Applicability of Article.
The provisions of this Article shall be applicable to the Securities of
any series which are convertible into shares of Common Stock of the Company,
and the issuance of such shares of Common Stock upon the conversion of such
Securities, except as otherwise specified as contemplated by Section 3.1 for
the Securities of such series. The terms and provisions applicable to the
conversion of Securities of any series into securities of the Company (other
than Common Stock) shall, if applicable, be set forth in an Officers'
Certificate or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of such series in accordance with
Section 3.1.
SECTION 14.2. Exercise of Conversion Privilege.
In order to exercise a conversion privilege, the Holder of a Security of a
series with such a privilege shall surrender such Security to the Company at
the office or agency maintained for that purpose pursuant to Section 10.2,
accompanied by written notice to the Company that the Holder elects to
convert such Security or a specified portion thereof. Such notice shall also
state, if different from the name and address of such Holder, the name or
names (with address) in which the certificate or certificates for shares of
Common Stock which shall be issuable on such conversion shall be issued.
Securities surrendered for conversion shall (if so required by the Company or
the Trustee) be duly endorsed by or accompanied by instruments of transfer in
forms satisfactory to the Company and the Trustee duly executed by the
registered Holder or its attorney duly authorized in writing; and Securities
so surrendered for conversion during the period from the close of business on
any Regular Record Date to the opening of business on the next succeeding
Interest Payment Date (excluding Securities or portions thereof called for
redemption during such period) shall also be accompanied by payment in funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of such Security then being
converted, and such interest shall be payable to such registered Holder
notwithstanding the conversion of
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such Security, subject to the provisions of Section 3.7 relating to the
payment of Defaulted Interest by the Company. As promptly as practicable
after the receipt of such notice and of any payment required pursuant to a
Board Resolution and, subject to Section 3.1, set forth, or determined in the
manner provided, in an Officers' Certificate, or established in one or more
indentures supplemental hereto setting forth the terms of such series of
Security, and the surrender of such Security in accordance with such
reasonable regulations as the Company may prescribe, the Company shall issue
and shall deliver, at the office or agency at which such Security is
surrendered, to such Holder or on its written order, a certificate or
certificates for the number of full shares of Common Stock issuable upon the
conversion of such Security (or specified portion thereof), in accordance
with the provisions of such Board Resolution, Officers' Certificate or
supplemental indenture, and cash as provided therein in respect of any
fractional share of such Common Stock otherwise issuable upon such
conversion. Such conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which such notice and such
payment, if required, shall have been received in proper order for conversion
by the Company and such Security shall have been surrendered as aforesaid
(unless such Holder shall have so surrendered such Security and shall have
instructed the Company to effect the conversion on a particular date
following such surrender and such Holder shall be entitled to convert such
Security on such date, in which case such conversion shall be deemed to be
effected immediately prior to the close of business on such date) and at such
time the rights of the Holder of such Security as such Security Holder shall
cease and the person or persons in whose name or names any certificate or
certificates for shares of Common Stock of the Company shall be issuable upon
such conversion shall be deemed to have become the holder or holders of
record of the shares represented thereby. Except as set forth above and
subject to the final paragraph of Section 3.7, no payment or adjustment shall
be made upon any conversion on account of any interest accrued on the
Securities surrendered for conversion or on account of any dividends on the
Common Stock of the Company issued upon such conversion.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of the same series, of authorized
denominations, in aggregate principal amount equal to the unconverted portion
of such Security.
SECTION 14.3. No Fractional Shares.
No fractional share of Common Stock of the Company shall be issued upon
conversions of Securities of any series. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion shall be computed on the basis
of the aggregate principal amount of the Securities (or specified portions
thereof to the extent permitted hereby) so surrendered. If, except for the
provisions of this Section 14.3, any Holder of a Security or Securities would
be entitled to a fractional share of Common Stock of the Company upon the
conversion of such Security or Securities, or specified portions thereof, the
Company shall pay to such Holder an amount in cash equal to the current
market value of such
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fractional share computed, (i) if such Common Stock is listed or admitted to
unlisted trading privileges on a national securities exchange, on the basis
of the last reported sale price regular way on such exchange on the last
trading day prior to the date of conversion upon which such a sale shall have
been effected, or (ii) if such Common Stock is not at the time so listed or
admitted to unlisted trading privileges on a national securities exchange, on
the basis of the average of the bid and asked prices of such Common Stock in
the over-the-counter market, on the last trading day prior to the date of
conversion, as reported by the National Quotation Bureau, Incorporated or
similar organization if the National Quotation Bureau, Incorporated is no
longer reporting such information, or if not so available, the fair market
price as determined by the Board of Directors. For purposes of this Section,
"trading day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
other than any day on which the Common Stock is not traded on the New York
Stock Exchange, or if the Common Stock is not traded on the New York Stock
Exchange, on the principal exchange or market on which the Common Stock is
traded or quoted.
SECTION 14.4. Adjustment of Conversion Price.
The conversion price of Securities of any series that is convertible into
Common Stock of the Company shall be adjusted for any stock dividends, stock
splits, reclassification, combinations or similar transactions in accordance
with the terms of the supplemental indenture or Board Resolutions setting
forth the terms of the Securities of such series.
Whenever the conversion price is adjusted, the Company shall compute the
adjusted conversion price in accordance with terms of the applicable Board
Resolution or supplemental indenture and shall prepare an Officers'
Certificate setting forth the adjusted conversion price and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 10.2 and, if
different, with the Trustee. The Company shall forthwith cause a notice
setting forth the adjusted conversion price to be mailed, first class postage
prepaid, to each Holder of Securities of such series at its address appearing
on the Security Register and to any conversion agent other than the Trustee.
SECTION 14.5. Notice of Certain Corporate Actions.
In case:
(a) the Company shall declare a dividend (or any other distribution) on
its Common Stock payable otherwise than in cash out of its retained earnings
(other than a dividend for which approval of any shareholders of the Company
is required); or
(b) the Company shall authorize the granting to the holders of its Common
Stock of rights, options or warrants to subscribe for or purchase any shares
of capital stock of any class or of any other rights (other than any such
grant for which approval of any shareholders of the Company is required); or
71
(c) of any reclassification of the Common Stock of the Company (other than
a subdivision or combination of its outstanding shares of Common Stock) or of
any consolidation, merger or share exchange to which the Company is a party
and for which approval of any shareholders of the Company is required, or of
the sale of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or winding up
of the Company; then the Company shall cause to be filed with the Trustee,
and shall cause to be mailed to all Holders at their last addresses as they
shall appear in the Security Register, at least 20 days (or 10 days in any
case specified in clause (a) or (b) above) prior to the applicable record
date hereinafter specified, a notice stating (i) the date on which a record
is to be taken for the purpose of such dividend, distribution, rights,
options or warrants, or, if a record is not to be taken, the date as of which
the holders of Common Stock of record to be entitled to such dividend,
distribution, rights, options or warrants are to be determined, or (ii) the
date on which such reclassification, consolidation, merger, share exchange,
sale, dissolution, liquidation or winding up is expected to become effective,
and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, share exchange; or
(e) sale, dissolution, liquidation or winding up. If at any time the
Trustee shall not be the conversion agent, a copy of such notice shall also
forthwith be filed by the Company with the Trustee.
SECTION 14.6. Reservation of Shares of Common Stock.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock or
treasury shares, for the purpose of effecting the conversion of Securities,
the full number of shares of Common Stock of the Company then issuable upon
the conversion of all outstanding Securities of any series that has
conversion rights.
SECTION 14.7. Payment of Certain Taxes upon Conversion.
The Company will pay any and all taxes that may be payable in respect of
the issue or delivery of shares of its Common Stock on conversion of
Securities pursuant hereto. The Company shall not, however, be required to
pay any tax which may be payable in respect of any transfer involved in the
issue and delivery of shares of its Common Stock in a name other than that of
the Holder of the Security or Securities to be converted, and no such issue
or delivery shall be made unless and until the person requesting such issue
has paid to the Company the amount of any such tax, or has established, to
the satisfaction of the Company, that such tax has been paid.
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SECTION 14.8. Nonassessability.
The Company covenants that all shares of its Common Stock which may be
issued upon conversion of Securities will upon issue in accordance with the
terms hereof be duly and validly issued and fully paid and nonassessable.
SECTION 14.9. Effect of Consolidation or Merger on Conversion Privilege.
In case of any consolidation of the Company with, or merger of the Company
into or with any other Person, or in case of any sale of all or substantially
all of the assets of the Company, the Company or the Person formed by such
consolidation or the Person into which the Company shall have been merged or
the Person which shall have acquired such assets, as the case may be, shall
execute and deliver to the Trustee a supplemental indenture providing that
the Holder of each Security then outstanding of any series that is
convertible into Common Stock of the Company shall have the right, which
right shall be the exclusive conversion right thereafter available to said
Holder (until the expiration of the conversion right of such Security), to
convert such Security into the kind and amount of shares of stock or other
securities or property (including cash) receivable upon such consolidation,
merger or sale by a holder of the number of shares of Common Stock of the
Company into which such Security might have been converted immediately prior
to such consolidation, merger or sale, subject to compliance with the other
provisions of this Indenture, such Security and such supplemental indenture.
Such supplemental indenture shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in
such Security. The above provisions of this Section shall similarly apply to
successive consolidations, mergers or sales. It is expressly agreed and
understood that anything in this Indenture to the contrary notwithstanding,
if, pursuant to such merger, consolidation or sale, holders of outstanding
shares of Common Stock of the Company do not receive shares of common stock
of the surviving corporation but receive other securities, cash or other
property or any combination thereof, Holders of Securities shall not have the
right to thereafter convert their Securities into common stock of the
surviving corporation or the corporation which shall have acquired such
assets, but rather, shall have the right upon such conversion to receive the
other securities, cash or other property receivable by a holder of the number
of shares of Common Stock of the Company into which the Securities held by
such holder might have been converted immediately prior to such
consolidation, merger or sale, all as more fully provided in the first
sentence of this Section 14.9. Anything in this Section 14.9 to the contrary
notwithstanding, the provisions of this Section 14.9 shall not apply to a
merger or consolidation of another corporation with or into the Company
pursuant to which both of the following conditions are applicable: (i) the
Company is the surviving corporation and (ii) the outstanding shares of
Common Stock of the Company are not changed or converted into any other
securities or property (including cash) or changed in number or character or
reclassified pursuant to the terms of such merger or consolidation.
As evidence of the kind and amount of shares of stock or other securities
or property (including cash) into which Securities may properly be
convertible after any such consolidation, merger or sale, or as to the
appropriate adjustments of the conversion prices applicable with respect
thereto, the Trustee shall be furnished with and may accept
73
the certificate or opinion of an independent certified public accountant with
respect thereto; and, in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely thereon, and shall not be responsible or
accountable to any Holder of Securities for any provision in conformity
therewith or approved by such independent certified accountant which may be
contained in said supplemental indenture.
SECTION 14.10. Duties of Trustee Regarding Conversion.
Neither the Trustee nor any conversion agent shall at any time be under
any duty or responsibility to any Holder of Securities of any series that is
convertible into Common Stock of the Company to determine whether any facts
exist which may require any adjustment of the conversion price, or with
respect to the nature or extent of any such adjustment when made or whether a
supplemental indenture need be entered into, or with respect to the method
employed, whether herein or in any supplemental indenture, any resolutions of
the Board of Directors or written instrument executed by one or more officers
of the Company provided to be employed in making the same. Neither the
Trustee nor any conversion agent shall be accountable with respect to the
validity or value (or the kind or amount) of any shares of Common Stock of
the Company, or of any securities or property, which may at any time be
issued or delivered upon the conversion of any Securities and neither the
Trustee nor any conversion agent makes any representation with respect
thereto. Neither the Trustee nor any conversion agent shall be responsible
for any failure of the Company to issue, transfer or deliver any shares of
its Common Stock or stock certificates or other securities or property upon
the surrender of any Security for the purpose of conversion or to comply with
any of the covenants of the Company contained in this Article XIV or in the
applicable supplemental indenture, resolutions of the Board of Directors or
written instrument executed by one or more duly authorized officers of the
Company.
SECTION 14.11. Repayment of Certain Funds upon Conversion.
Any funds which at any time shall have been deposited by the Company or on
its behalf with the Trustee or any other paying agent for the purpose of
paying the principal of, and premium, if any, and interest, if any, on any of
the Securities (including funds deposited for the sinking fund referred to in
Article III hereof) and which shall not be required for such purposes because
of the conversion of such Securities as provided in this Article XIV shall
after such conversion be repaid to the Company by the Trustee upon the
Company's written request.
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ARTICLE XV
Subordination Of Securities
SECTION 15.1. Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the indebtedness
represented by the Securities and the payment of the principal of (and
premium, if any) and interest on each and all of the Securities are hereby
expressly made subordinate and subject in right of payment to the prior
payment in full of all Senior Debt.
SECTION 15.2. Payment Over of Proceeds upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshaling of assets and liabilities of the
Company, then and in any such event the holders of Senior Debt shall be
entitled to receive payment in full of all amounts due or to become due on or
in respect of all Senior Debt, or provision shall be made for such payment in
cash, before the Holders of the Securities are entitled to receive any
payment on account of principal of (or premium, if any) or interest on the
Securities, and to that end the holders of Senior Debt shall be entitled to
receive, for application to the payment thereof, any payment or distribution
of any kind or character, whether in cash, property or securities, including
any such payment or distribution which may be payable or deliverable by
reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities, which may be payable or
deliverable in respect of the Securities in any such case, proceeding,
dissolution, liquidation or other winding up event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of
the Securities, before all Senior Debt is paid in full or payment thereof
provided for, and if such fact shall, at or prior to the time of such payment
or distribution, have been made known to the Trustee or, as the case may be,
such Holder, then and in such event such payment or distribution shall be
paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making
payment or distribution of assets of the Company for application to the
payment of all Senior Debt remaining unpaid, to the extent necessary to pay
all Senior Debt in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt. Any taxes that have been
withheld or deducted from any payment
75
or distribution in respect of the Securities, or any taxes that ought to have
been withheld or deducted from any such payment or distribution that have
been remitted to the relevant taxing authority, shall not be considered to be
an amount that the Trustee or the Holder of any Security receives for
purposes of this Section.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment which
are subordinated in right of payment to all Senior Debt which may at the time
be outstanding to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the
conveyance or transfer of its properties and assets substantially as an
entirety to another Person upon the terms and conditions set forth in Article
VIII shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshaling of
assets and liabilities of the Company for the purposes of this Section if the
Person formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer such properties and
assets substantially as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the
conditions set forth in Article VIII.
SECTION 15.3. Prior Payment to Senior Debt Upon Acceleration of Securities.
In the event that any Securities are declared due and payable before their
Stated Maturity, then and in such event the holders of Senior Debt shall be
entitled to receive payment in full of all amounts due or to become due on or
in respect of all Senior Debt or provision shall be made for such payment in
cash, before the Holders of the Securities are entitled to receive any
payment (including any payment which may be payable by reason of the payment
of any other indebtedness of the Company being subordinated to the payment of
the Securities) by the Company on account of the principal of (or premium, if
any) or interest on the Securities or on account of the purchase or other
acquisition of Securities; provided, however, that nothing in this Section
shall prevent the satisfaction of any sinking fund payment in accordance with
Article XII by delivering and crediting pursuant to Section 12.2 Securities
which have been acquired (upon redemption or otherwise) prior to such
declaration of acceleration or which have been converted pursuant to
Article XIV.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to
the time of such payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment shall be paid over
and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 14.2 would be applicable.
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SECTION 15.4. No Payment When Senior Debt in Default.
In the event and during the continuation of any default in the payment of
principal of (or premium, if any) or interest on any Senior Debt beyond any
applicable grace period with respect thereto, or in the event that any event
of default with respect to any Senior Debt shall have occurred and be
continuing permitting the holders of such Senior Debt (or a trustee on behalf
of the holders thereof) to declare such Senior Debt due and payable prior to
the date on which it would otherwise have become due and payable, unless and
until such event of default shall have been cured or waived or shall have
ceased to exist and such acceleration shall have been rescinded or annulled,
or (b) in the event any judicial proceeding shall be pending with respect to
any such default in payment or event of default, then no payment (including
any payment which may be payable by reason of the payment of any other
indebtedness of the Company being subordinated to the payment of the
Securities) shall be made by the Company on account of principal of (or
premium, if any) or interest on the Securities or on account of the purchase
or other acquisition of Securities; provided, however, that nothing in this
Section shall prevent the satisfaction of any sinking fund payment in
accordance with Article XII by delivering and crediting pursuant to Section
12.2 Securities which have been acquired (upon redemption or otherwise) prior
to such default in payment or event of default or which have been converted
pursuant to Article XIV.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to
the time of such payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment shall be paid over
and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 15.2 would be applicable.
SECTION 15.5. Payment Permitted in Certain Situations.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Company, at any time except during
the pendency of any case, proceeding, dissolution, liquidation or other
winding up, assignment for the benefit of creditors or other marshaling of
assets and liabilities of the Company referred to in Section 15.2 or under
the conditions described in Section 15.3 or 15.4, from making payments at any
time of principal of (and premium, if any) or interest on the Securities, or
(b) the application by the Trustee of any money deposited with it hereunder
to the payment of or on account of the principal of (and premium, if any) or
interest on the Securities or the retention of such payment by the holders,
if, at the time of such application by the Trustee, it did not have knowledge
that such payment would have been prohibited by the provisions of this
Article.
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SECTION 15.6. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt or the provision for
such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, the Holders of the Securities
shall be subrogated to the extent of the payments or distributions made to
the holders of such Senior Debt pursuant to the provisions of this Article
(equally and ratably with the holders of indebtedness of the Company which by
its express terms is subordinated to indebtedness of the Company to
substantially the same extent as the Securities are subordinated to the
Senior Debt and is entitled to like rights of subrogation) to the rights of
the holders of such Senior Debt to receive payments and distributions of
cash, property and securities applicable to the Senior Debt until the
principal of (and premium, if any) and interest on the Securities shall be
paid in full. For purposes of such subrogation, no payments or distributions
to the holders of the Senior Debt of any cash, property or securities to
which the Holders of the Securities or the Trustee would be entitled except
for the provisions of this Article, and no payments over pursuant to the
provisions of this Article to the holders of Senior Debt by Holders of the
Securities or the Trustee, shall, as among the Company, its creditors other
than holders of Senior Debt and the Holders of the Securities, be deemed to
be a payment or distribution by the Company to or on account of the Senior
Debt.
SECTION 15.7. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one
hand and the holders of Senior Debt on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended
to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Debt and the Holders of the Securities, the obligation of
the Company, which is absolute and unconditional (and which, subject to the
rights under this Article of the holders of Senior Debt, is intended to rank
equally with all other general obligations of the Company), to pay to the
Holders of the Securities the principal of (and premium, if any) and interest
on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other
than the holders of Senior Debt; or (c) prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any, under
this Article of the holders of Senior Debt to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
SECTION 15.8. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
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SECTION 15.9. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced
or impaired by any act or failure to act on the part of the Company or by any
act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of
Senior Debt do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter,
Senior Debt or otherwise amend or supplement in any manner Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (iii) release any
Person liable in any manner for the collection of Senior Debt; and (iv)
exercise or refrain from exercising any rights against the Company and any
other Person.
SECTION 15.10. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by
the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit
the making of any payment to or by the Trustee in respect of the Securities,
unless and until the Trustee shall have received written notice thereof from
the Company or a holder of Senior Debt or from any trustee therefor; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 6.1, shall be entitled in all respects to assume that
no such facts exist.
Subject to the provisions of Section 6.1, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Debt (or a trustee therefor) to establish
that such notice has been given by a holder of Senior Debt (or a trustee
therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of Senior Debt to participate in any payment or distribution pursuant
to this Article, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior Debt
held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article, and if such evidence is not
79
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 15.11. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 6.1, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding
up or similar case or proceeding is pending, or a certificate of the trustee
in bankruptcy, receiver, liquidating trustee, custodian, assignee for the
benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for
the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of Senior Debt and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article.
SECTION 15.12. Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt and shall not be liable to any such holders or creditors if it
shall in good faith pay over or distribute to Holders of Securities or to the
Company or to any other Person cash, property or securities to which any
holders of Senior Debt shall be entitled by virtue of this Article or
otherwise. With respect to the holders of Senior Debt, the Trustee undertakes
to perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article and no implied covenants or
obligations with respect to holders of Senior Debt, shall be read into this
Indenture against the Trustee.
SECTION 15.13. Rights of Trustee as Holder of Senior Debt,
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Debt which may at any
time be held by it, to the same extent as any other holder of Senior Debt and
nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.5.
SECTION 15.14. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 15.13 shall not apply to the Company
or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
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SECTION 15.15. Certain Conversions Deemed Payment.
For the purposes of this Article only, (1) the issuance and delivery of
junior securities upon conversion of Securities in accordance with Article
XIV shall not be deemed to constitute a payment or distribution on account of
the principal of or premium or interest on Securities or on account of the
purchase or other acquisition of Securities, and (2) the payment, issuance or
delivery of cash, other than cash in lieu of fractional shares in connection
with payment, issuance or delivery of junior securities, property or
securities (other than junior securities) upon conversion of a Security shall
be deemed to constitute payment on account of the principal of such Security.
For the purposes of this Section, the term "junior securities" means (a)
shares of any stock of any class of the Company and (b) securities of the
Company which are subordinated in right of payment to all Senior Debt which
may be outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or
shall impair, as among the Company, its creditors other than holders of
Senior Debt and the Holders of the Securities, the right, which is absolute
and unconditional, of the Holder of any Security to convert such Security in
accordance with Article XIV.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
UNITED STATES SURGICAL CORPORATION
By:
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Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
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Name:
Title:
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