Exhibit 4.4
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SCHERING-PLOUGH CORPORATION
and
THE BANK OF NEW YORK
Trustee
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INDENTURE
Dated as of _______ __, 2004
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SCHERING-PLOUGH CORPORATION1
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF ____________ __, 2004
Trust Indenture Indenture Section
Act Section
ss. 310(a)(1).................................................... 607
(a)(2)................................................... 607
(b)...................................................... 608 and 612
ss. 312(c).........................................................701
ss. 314(a)....................................................... 703
(a)(4).................................................. 1004
(c)(1)................................................... 102
(c)(2)................................................... 102
(e)...................................................... 102
ss. 315(b)....................................................... 601
ss. 316(a) (last sentence)....................... 101 ("Outstanding")
(a)(1)(A)........................................... 502, 512
(a)(1)(B)................................................ 513
(b)...................................................... 508
(c)...................................................... 104
ss. 317(a)(1)......................................................503
(a)(2)................................................... 504
(b)..................................................... 1003
ss. 318(a)....................................................... 113
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1 Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.......................................................1
Section 102. Compliance Certificates and Opinions.............................12
Section 103. Form of Documents Delivered to Trustee...........................13
Section 104. Acts of Holders..................................................14
Section 105. Notices, Etc., to Trustee and Company............................15
Section 106. Notice to Holders; Waiver........................................16
Section 107. Effect of Headings and Table of Contents.........................17
Section 108. Successors and Assigns...........................................17
Section 109. Separability Clause..............................................17
Section 110. Benefits of Indenture............................................17
Section 111. Governing Law....................................................17
Section 112. Legal Holidays...................................................17
Section 113. Conflict of Any Provision of Indenture
with Trust Indenture Act.........................................17
Section 114. No Recourse Against Others.......................................18
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally..................................................18
Section 202. Form of Trustee's Certificate of Authentication..................18
Section 203. Securities Issuable in Global Form...............................19
Section 204. Form of Legend for Book-Entry Securities.........................20
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.............................20
Section 302. Denominations....................................................24
Section 303. Execution, Authentication, Delivery and Dating...................24
Section 304. Temporary Securities.............................................26
Section 305. Registration, Registration of Transfer and Exchange..............29
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.................32
Section 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset..........................................33
Section 308. Optional Extension of Stated Maturity............................36
Section 309. Persons Deemed Owners............................................37
Section 310. Cancellation.....................................................37
Section 311. Computation of Interest..........................................38
i
Section 312. Currency and Manner of Payments in Respect of Securities.........38
Section 313. Appointment and Resignation of Successor
Exchange Rate Agent..............................................41
Section 314. CUSIP Numbers....................................................42
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture..........................42
Section 402. Application of Trust Money.......................................43
ARTICLE FIVE
REMEDIES
Section 501. Events of Default................................................44
Section 502. Acceleration of Maturity; Rescission and Annulment...............45
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee...........................................46
Section 504. Trustee May File Proofs of Claim.................................47
Section 505. Trustee May Enforce Claims Without
Possession of Securities.........................................47
Section 506. Application of Money Collected...................................47
Section 507. Limitation on Suits..............................................48
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest..........................49
Section 509. Restoration of Rights and Remedies...............................49
Section 510. Rights and Remedies Cumulative...................................49
Section 511. Delay or Omission Not Waiver.....................................49
Section 512. Control by Holders...............................................49
Section 513. Waiver of Past Defaults..........................................50
Section 514. Waiver of Usury, Stay or Extension Laws..........................50
Section 515. Undertaking for Costs............................................50
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults...............................................51
Section 602. Certain Rights of Trustee........................................51
Section 603. Trustee Not Responsible for Recitals or
Issuance of Securities...........................................53
Section 604. May Hold Securities..............................................53
Section 605. Money Held in Trust..............................................53
Section 606. Compensation and Reimbursement...................................53
Section 607. Corporate Trustee Required; Eligibility..........................54
Section 608. Resignation and Removal; Appointment of Successor................54
Section 609. Acceptance of Appointment by Successor...........................56
Section 610. Merger, Conversion, Consolidation or
Succession to Business...........................................57
Section 611. Appointment of Authenticating Agent..............................57
Section 612. Conflicting Interests............................................59
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Section 613. Appointment of Co-Trustee........................................59
Section 614. Trustee's Application for
Instructions from the Company....................................60
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders.....................60
Section 702. Reports by Trustee...............................................61
Section 703. Reports by Company...............................................61
Section 704. Calculation of Original Issue Discount...........................62
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, etc., Only on Certain Terms.............62
Section 802. Successor Person Substituted.....................................63
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders...............63
Section 902. Supplemental Indentures with Consent of Holders..................65
Section 903. Execution of Supplemental Indentures.............................66
Section 904. Effect of Supplemental Indentures................................67
Section 905. Conformity with Trust Indenture Act..............................67
Section 906. Reference in Securities to Supplemental Indentures...............67
Section 907. Notice of Supplemental Indentures................................67
Section 908. Effect on Senior Indebtedness....................................67
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, if Any, and Interest.............67
Section 1002. Maintenance of Office or Agency.................................68
Section 1003. Money for Securities Payments to Be Held in Trust...............69
Section 1004. Statement as to Compliance......................................70
Section 1005. Additional Amounts..............................................70
Section 1006. Corporate Existence.............................................71
Section 1007. Limitation on Liens.............................................71
Section 1008. Limitation on Sale and Leaseback Transactions...................73
Section 1009. Waiver of Certain Covenants.....................................74
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article........................................74
Section 1102. Election to Redeem; Notice to Trustee...........................75
Section 1103. Selection by Trustee of Securities to Be Redeemed...............75
Section 1104. Notice of Redemption............................................75
Section 1105. Deposit of Redemption Price.....................................76
Section 1106. Securities Payable on Redemption Date...........................76
Section 1107. Securities Redeemed in Part.....................................77
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article........................................78
Section 1202. Satisfaction of Sinking Fund Payments with Securities...........78
Section 1203. Redemption of Securities for Sinking Fund.......................78
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
Section 1301. Applicability of Article........................................79
Section 1302. Repayment of Securities.........................................79
Section 1303. Exercise of Option..............................................80
Section 1304. When Securities Presented for
Repayment Become Due and Payable................................80
Section 1305. Securities Repaid in Part.......................................81
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Company's Option to Effect Defeasance or
Covenant Defeasance.............................................81
Section 1402. Defeasance and Discharge........................................81
Section 1403. Covenant Defeasance.............................................82
Section 1404. Conditions to Defeasance or Covenant Defeasance.................82
Section 1405. Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions................84
Section 1406. Reinstatement...................................................85
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.......................85
Section 1502. Call, Notice and Place of Meetings..............................85
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Section 1503. Persons Entitled to Vote at Meetings............................86
Section 1504. Quorum; Action..................................................86
Section 1505. Determination of Voting Rights;
Conduct and Adjournment of Meetings.............................87
Section 1506. Counting Votes and Recording Action
of Meetings.....................................................88
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1601. Indenture and Securities Solely Corporate Obligations...........88
ARTICLE SEVENTEEN
SUBORDINATION OF SECURITIES
Section 1701. Applicability of Article; Agreement to Subordinate..............88
Section 1702. Securities Subordinated in any Proceedings......................89
Section 1703. No Payment on Securities in Certain Circumstances...............89
Section 1704. Subrogation.....................................................90
Section 1705. Obligations of the Company Unconditional........................90
Section 1706. Trustee and Paying Agents Entitled to Assume
Payments Not Prohibited In Absence of Notice....................91
Section 1707. Defeasance......................................................91
Section 1708. Subordination Rights Not Impaired by Acts or
Omissions of the Company or Holders of Senior
Indebtedness....................................................91
Section 1709. Right to Hold Senior Indebtedness...............................91
Section 1710. No Fiduciary Duty of Trustee or
Securityholders to Holders of Senior Indebtedness...............91
Section 1711. Distribution to Holders of Senior Indebtedness..................92
Section 1712. Trustee's Rights to Compensation, Reimbursement
of Expenses and Indemnification.................................92
Section 1713. Exception for Certain Distributions.............................92
Section 1714. Appointment of the Trustee by Holders...........................92
Section 1715. Modifications of Terms of Senior Indebtedness...................92
Section 1716. Certain Definitions.............................................92
FORMS OF CERTIFICATION.................................................EXHIBIT A
GLOBAL NOTE............................................................EXHIBIT B
v
INDENTURE, dated as of ______ __, 2004, between
Schering-Plough Corporation, a corporation duly organized and existing under the
laws of the State of New Jersey (herein called the "Company"), having its
principal office at 0000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000,
facsimile - (000) 000-0000, and The Bank of New York, a New York banking
corporation, having its Corporate Trust Office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, facsimile - (000) 000-0000, 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 senior or subordinated debentures, notes or other evidences of indebtedness
(herein called the "Securities") which may be convertible into or exchangeable
for any securities of any Person (including the Company), to be issued in one or
more series as in this Indenture provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
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 covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of a
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper," as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under
the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted in the United
States at the date of such computation;
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision; and
(5) the words "without limitation" shall be deemed to
follow any use of the word "include" or "including."
Certain terms, used principally in Article Three, Article
Five, Article Six and Article Ten, are defined in that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein, to be paid by the Company in respect of certain
taxes imposed on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means (except as otherwise provided in
this paragraph), as to any particular lease under which any Person is at the
time liable for a term of more than 12 months, at any date as of which the
amount thereof is to be determined (the "determination date"), the total net
amount of rent required to be paid by such Person under such lease during the
remaining term thereof (excluding any subsequent renewal or other extension
options held by the lessee), discounted from the respective due dates thereof to
the determination date at the rate determined by the Company to be appropriate
and consistent with generally accepted accounting principles (as used in this
definition, the "applicable rate"). The net amount of rent required to be paid
under any such lease for any such period shall be the aggregate amount of the
rent payable by the lessee with respect to such period after excluding amounts
required to be paid on account of maintenance and repairs, services, insurance,
taxes, assessments, water rates and similar charges and contingent rents (such
as those based on sales or monetary inflation). If any lease is terminable by
the lessee upon the payment of a penalty, if under the terms of the lease the
termination right is not exercisable until after the determination date, and if
the amount of such penalty discounted to the determination date at the
applicable rate is less than the net amount of rentals payable after the time as
of which such termination could occur (the "termination time") discounted to the
determination date at the applicable rate, then such discounted penalty amount
shall be used instead of such discounted amount of net rentals payable after the
termination time in calculating the Attributable Debt for such lease. If any
2
lease is terminable by the lessee upon the payment of a penalty, if such
termination right is exercisable on the determination date, and if the amount of
the net rentals payable under such lease after the determination date discounted
to the determination date at the applicable rate is greater than the amount of
such penalty, the "Attributable Debt" for such lease as of such determination
date shall be equal to the amount of such penalty.
"Authenticating Agent" means any Person appointed by the
Trustee to act on behalf of the Trustee pursuant to Section 611 to authenticate
Securities.
"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 each place in connection with which
the term is used or in the financial community of each 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 except a Registered
Security.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board duly authorized to
act hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
or consented to by the Board of Directors and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, 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.
"Clearstream" means Clearstream Banking societe anonyme, or
its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the corporation named as the "Company" in the
first paragraph of this Indenture until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
3
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its Chief
Executive Officer, its President, any Vice President, and by its Treasurer or an
Assistant Treasurer, the Comptroller or an Assistant Comptroller, the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee.
"Component Currency" has the meaning specified in Section
312(h).
"Consolidated Net Tangible Assets" means the total assets of
the Company and its consolidated subsidiaries as shown on or reflected in its
then most recent quarterly or annual, as applicable, balance sheet less (a) all
current liabilities (excluding current liabilities which could be classified as
long-term debt in conformity with generally accepted accounting principles and
current liabilities which are by their terms extendible or renewable at the
option of the obligor thereon to a time more than 12 months after the time as of
which the amount thereof is being computed), (b) advances to entities accounted
for on the equity method of accounting, and (c) Intangible Assets.
"Conversion Date" has the meaning specified in Section 312(d).
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such Currency and by
a central bank or other public institutions of or within the international
banking community for the settlement of transactions, (ii) the euro for the
settlement of transactions by public institutions of or within the countries
which use the euro as their national currency or (iii) any currency unit (or
composite currency) other than the euro for the purposes for which it was
established.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate trust
business shall be principally administered, which office on the date of
execution of this Indenture is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
"corporation" includes corporations, limited liability
companies, partnerships, associations, companies and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Currency" means any currency or currencies, composite
currency or currency unit or currency units, including the euro, issued by the
government of one or more countries or by any recognized confederation or
association of such governments.
"Default" means any event which is, or after the giving of
notice or passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
4
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 312(g).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 312(f).
"Election Date" has the meaning specified in Section 312(h).
"Euroclear" means Xxxxxx Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or
within any series, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank, designated pursuant to
Section 301 or Section 313.
"Exchange Rate Officer's Certificate" means a tested telex or
a certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section
302 in the relevant Currency), payable with respect to a Security of any series
on the basis of such Market Exchange Rate, sent (in the case of a telex) or
signed (in the case of a certificate) by the Treasurer, any Vice President or
any Assistant Treasurer of the Company.
"Exempted Indebtedness" means the sum of all outstanding
indebtedness of the Company and its Restricted Subsidiaries incurred after the
date of this Indenture and secured by liens proscribed in paragraph (a) of
Section 1007 or proscribed by paragraph (a) of Section 1008, provided, however,
that the amount of Exempted Indebtedness outstanding in respect of a Sale and
Leaseback Transaction shall be the amount of indebtedness capitalized in respect
thereof on the financial statements of the Company or Restricted Subsidiary, as
applicable, after excluding amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates and similar
charges and contingent rents such as those based on sales, and provided further
that in the case of any such lease which is terminable by the lessee upon the
payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
"Extension Notice" has the meaning specified in Section 308.
"Extension Period" has the meaning specified in Section 308.
5
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11
of the United States Code, as amended from time to time.
"Foreign Currency" means any Currency, including the euro,
issued by the government of one or more countries other than the United States.
"Funded Debt" means indebtedness of the Company (other than
the Securities or indebtedness subordinated to the Securities) or indebtedness
of a wholly-owned Restricted Subsidiary, for money borrowed, having a stated
maturity more than 12 months from the date of application of sale/leaseback
proceeds or which is extendible at the option of the obligor thereon to a date
more than 12 months from the date of such application.
"Government Obligations" means, unless otherwise specified
with respect to any series of Securities pursuant to Section 301, securities
which are (i) direct obligations of the government which issued the Currency in
which the Securities of a particular series are payable or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the government which issued the Currency in which the Securities of such series
are payable, the payment of which is unconditionally guaranteed by such
government, which, in either case, are full faith and credit obligations of such
government payable in such Currency and are not callable or redeemable at the
option of the issuer thereof and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest on or principal of
the Government Obligation evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the
Person in whose name a 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, shall mean 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 into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
particular series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
6
"Indexed Security" means a Security as to which all or certain
interest payments and/or the principal amount payable at Maturity are determined
by reference to prices, changes in prices, or differences between prices, of
securities, Currencies, intangibles, goods, articles or commodities or by such
other objective price, economic or other measures as are specified in Section
301 hereof.
"Intangible Assets" means the aggregate value (net of any
applicable reserves), as shown on or reflected in the Company's then most recent
quarterly or annual, as applicable, balance sheet, of: (i) all trade names,
trademarks, licenses, patents, copyrights and goodwill; (ii) organizational and
development costs; (iii) deferred charges (other than prepaid items such as
insurance, taxes, interest, commissions, rents and similar items and tangible
assets being amortized); and (iv) unamortized debt discount and expense, less
unamortized premium.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1005 or
otherwise, includes such Additional Amounts.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to Section 301
for the Securities of the relevant series, (ii) for any conversion of Dollars
into any Foreign Currency, the noon (New York City time) buying rate for such
Foreign Currency for cable transfers quoted in New York City as certified for
customs purposes by the Federal Reserve Bank of New York and (iii) for any
conversion of one Foreign Currency into Dollars or another Foreign Currency, the
spot rate at noon local time in the relevant market at which, in accordance with
normal banking procedures, the Dollars or Foreign Currency into which conversion
is being made could be purchased with the Foreign Currency from which conversion
is being made from major banks located in either New York City, London or any
other principal market for Dollars or such purchased Foreign Currency, in each
case determined by the Exchange Rate Agent. Unless otherwise specified with
respect to any Securities pursuant to Section 301, in the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City, London or another principal
market for the Currency in question, or such other quotations as the Exchange
Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange
Rate Agent, if there is more than one market for dealing in any Currency by
reason of foreign exchange regulations or otherwise, the market to be used in
respect of such Currency shall be that upon which a non-resident issuer of
securities designated in such Currency would purchase such Currency in order to
make payments in respect of such securities.
7
"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, notice of redemption, notice of
option to elect repayment or otherwise.
"Officers' Certificate" means a certificate signed by the
Chief Executive Officer, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Controller or an Assistant Controller,
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, including an employee of the Company.
"Optional Reset Date" has the meaning specified in Section
307(b).
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Original Stated Maturity" has the meaning specified in
Section 308.
"Outstanding", when used with respect to Securities or any
series of any Securities, means, as of the date of determination, all Securities
or all securities of such series, as the case may be, theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company 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, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article Fourteen;
and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
8
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security or Indexed Security, the Dollar equivalent as
of such date of original issuance of the amount determined as provided in clause
(i) above or (iii) below, respectively) of such Security, (iii) the principal
amount of any Indexed Security that may be counted in making such determination
or calculation and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security pursuant to
Section 301, and (iv) 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 making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee knows to be
so owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of (or premium,
if any) or interest, if any, on any Securities on behalf of the Company.
Initially, the Paying Agent shall be The Bank of New York.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, estate, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment" means, when used with respect to the
Securities of or within any series, the place or places where the principal of
(and premium, if any) and interest, if any, on such Securities are payable as
specified is contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt
9
as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"principal" of a debt security, including any Security, means
the amount (including, if and to the extent applicable, any premium and, in the
case of an Original Issue Discount Security, any accrued original issue
discount, but excluding interest) that is payable with respect to such debt
security as of any date and for any purpose (including in connection with any
sinking fund, if any, upon any redemption at the option of the Issuer, upon any
purchase or exchange at the option of the Issuer or the holder of such debt
security and upon any acceleration of the maturity of such debt security).
"principal amount" of a debt security, including any Security,
means the principal amount as set forth on the face of such debt security.
"Principal Property" means any manufacturing facility owned by
the Company or any Restricted Subsidiary and located within the United States
(excluding its territories and possessions and the Commonwealth of Puerto Rico)
the gross book value of which on the date as of which the determination is being
made exceeds 1% of Consolidated Net Tangible Assets, other than any such
facility or portion thereof which the Board of Directors reasonably determines
is not material to the business conducted by the Company and its Subsidiaries
taken as a whole.
"Redemption Date", when used with respect to any Security to
be redeemed, in whole or in part, 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 registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at which it is to
be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means any vice president, the treasurer, any assistant treasurer, any trust
officer or assistant trust officer, 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 and who
shall have direct responsibility for the administration of this Indenture.
10
"Reset Notice" has the meaning specified in Section 307(b).
"Restricted Subsidiary" means any Subsidiary (i) substantially
all of the property of which is located, and substantially all of the business
of which is carried on, within the United States (excluding its territories and
possessions and the Commonwealth of Puerto Rico), and (ii) which owns or
operates one or more Principal Properties; provided, however, that Restricted
Subsidiary shall not include a Subsidiary which is primarily engaged in the
business of a finance or insurance company and branches thereof.
"Sale and Leaseback Transaction" has the meaning specified in
Section 1008(a).
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture; provided, however, that if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" has the meaning specified in Section
1716.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date fixed
by the Trustee pursuant to Section 307.
"Specified Amount" has the meaning specified in Section
312(h).
"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, as such date may be extended pursuant
to the provisions of Section 308.
"Subordinated Securities" has the meaning set forth in Section
1701.
"Subsidiary" means any corporation of which at the time of
determination the Company, directly and/or indirectly through one or more
Subsidiaries, owns more than 50% of the shares of Voting Stock.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then
11
a Trustee hereunder; provided, however, that if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean only the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Xxxxxxx 000, xxx Xxxxxx Xxxxxx xx Xxxxxxx
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States federal income
taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 312(c).
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
"Voting Stock" means stock of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of a corporation.
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
Section 102. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee 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 (except with respect to the initial issuance of the Securities, including,
without limitation, the execution and delivery of the related supplemental
indentures) an Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent, if any, have been complied with, except that in
the case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture (other than pursuant to
Section 1004) 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;
12
(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
(4) a statement as to whether, in the opinion of each such individual, such
covenant or condition has been complied with.
Section 103. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person or Persons 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 and may also rely on certificates of governmental authorities, unless
such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officers' Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if
originally filed in the corrected form and, irrespective of the date or dates of
the actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and or delivered as of the date
or dates required with respect to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary notwithstanding, if any
such corrective document or instrument indicates that action has been taken by
or at the request of the Company which could not have been taken had the
original document or instrument not contained such error or omission, the action
so taken shall not be invalidated or otherwise rendered ineffective but shall be
and remain in full force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without
13
limiting the generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall nevertheless be the
valid obligations of the Company entitled to the benefits of this Indenture
equally and ratably with all other Outstanding Securities, except as aforesaid.
Section 104. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agents duly appointed in writing. If Securities of
a series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of 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 Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, 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 or so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by 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 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 reasonably 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
14
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 that the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than 180 days after the record
date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent, or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
Section 105. Notices, Etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other documents 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 by mail, first class postage prepaid or by guaranteed
overnight courier or by facsimile transmission (receipt confirmed by a
Responsible Officer) followed by overnight courier, to or with the
Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration Division, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if sent in writing by mail,
15
first class postage prepaid or by guaranteed overnight courier or by
facsimile transmission (receipt confirmed by an appropriate officer of
the Company) followed by overnight courier, to the Company addressed to
it at the address of its principal office specified in the first
paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver. Where this Indenture
provides for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid or by guaranteed overnight courier or by facsimile transmission
(receipt confirmed by facsimile transaction receipt) followed by overnight
courier, to each such Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders of Registered Securities is given by mail or
courier or facsimile, neither the failure such notice, nor any defect in any
notice so mailed or delivered by courier or facsimile, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided. Any notice mailed to a Holder or sent by courier
or facsimile in the manner herein prescribed shall be conclusively deemed to
have been received by such Holder, whether or not such Holder actually receives
such notice.
In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impracticable
to mail or send by courier or facsimile notice of any event to Holders of
Registered Securities when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be sufficient giving of such
notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, 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. Any such
notice shall be deemed to have been given on the date of the first such
publication.
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 to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to give
notice by publication to Holders of Bearer Securities as provided above, nor any
defect in any notice so published, shall affect the sufficiency of such notice
with respect to other Holders of Bearer Securities or the sufficiency of any
notice to Holders of Registered Securities given as provided herein.
16
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.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 107. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 108. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 109. Separability Clause. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 110. Benefits of Indenture. Nothing in this Indenture
or in the Securities or coupons, express or implied, shall give to any Person,
other than the parties hereto, any Authenticating Agent, any Paying Agent, any
Securities Registrar and their successors hereunder, the holders of Senior
Indebtedness and the Holders of Securities or coupons, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 111. Governing Law. This Indenture and the Securities
and coupons shall be governed by and construed in accordance with the law of the
State of New York, without regard to principles of conflicts of laws. This
Indenture is subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
Section 112. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date or Stated Maturity or
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 any Security
or coupon 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 principal (or premium, if any) or interest, 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 sinking fund payment date, or
at the Stated Maturity or Maturity; provided that no interest shall accrue for
the period from and after such Interest Payment Date, Redemption Date, sinking
fund payment date, Stated Maturity or Maturity, as the case may be.
Section 113. Conflict of Any Provision of Indenture with Trust
Indenture Act. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by TIA Sections 310 to 318,
inclusive, or conflicts with any provision (an
17
"incorporated provision") required by or deemed to be included in this Indenture
by operation of such TIA Sections or any section of the TIA, such imposed duties
or incorporated provisions shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
Section 114. No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities, if any, or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting any of the Securities
waives and releases all such liability.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally. The Registered Securities, if
any, of each series and the Bearer Securities, if any, of each series and
related coupons shall be in substantially the forms 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 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 the forms of Securities or coupons of any
series are established by action taken pursuant to a Board Resolution, a copy of
an appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities or coupons. Any portion of the
text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security.
Unless otherwise specified is contemplated by Section 301,
Securities in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities
shall be in substantially the form set forth in this Article. The definitive
Securities and coupons shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as determined
by the officers of the Company executing such Securities, as evidenced by their
execution of such Securities or coupons.
Section 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: __________________
18
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 Officer
Section 203. Securities Issuable in Global Form. If Securities
of or within a series are issuable in global form, as specified as contemplated
by Section 301, then, notwithstanding clause (8) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or Section 304. Subject to the provisions of
Section 303 and, if applicable, Section 304, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or Section
304 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303. Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest, if any, on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or Clearstream.
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Section 204. Form of Legend for Book-Entry Securities. Any
global Security authenticated and delivered hereunder shall bear a legend (which
would be in addition to any other legends required in the case of a restricted
Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT AND SUCH CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS
REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be subordinated
in right of payment to Senior Indebtedness as provided in Article Seventeen.
The Securities may be issued in one or more series. There
shall be established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, set forth
in, or determined in the manner provided in, an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (18) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of
Securities) and whether such Securities are senior or subordinated;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1305) and whether any series may be reopened for additional
Securities of that series; in the
20
event that such series of Securities may be reopened from time to time
for issuances of additional Securities of such series, the terms
thereof shall indicate whether any such additional Securities shall
have the same terms as the prior Securities of such series or whether
the Company may establish additional or different terms with respect to
such additional Securities;
(3) the date or dates, or the method by which such date or
dates will be determined or extended, on which the principal (and
premium, if any) of the Securities of the series is payable;
(4) the rate or rates (which may be fixed or variable) at
which the Securities of the series shall bear interest, if any, or the
method by which such rate or rates shall be determined, the date or
dates from which such interest shall accrue, or the method by which
such date or dates shall be determined, the Interest Payment Dates on
which such interest shall be payable and the Regular Record Date, if
any, for the interest payable on any Registered Security on any
Interest Payment Date, or the method by which such date or dates shall
be determined, and the basis upon which interest shall be calculated if
other than on the basis of a 360-day year of twelve 30-day months;
(5) the right, if any, to extend the interest payment
periods and the terms of such extension or extensions;
(6) the place or places, if any, other than or in addition
to the Borough of Manhattan, the City of New York, where the principal
of (and premium, if any) and interest, if any, on Securities of the
series shall be payable, where any Registered Securities of the series
may be surrendered for registration of transfer, where Securities of
the series may be surrendered for exchange, where Securities of the
series that are convertible or exchangeable may be surrendered for
conversion or exchange, as applicable and, if different than the
location specified in Section 106, the place or places where notices or
demands to or upon the Company in respect of the Securities of the
series and this Indenture may be served;
(7) the period or periods within which, or the date or
dates on which, the price or prices at which, the Currency in which,
and other terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option, and if other than by a Board
Resolution, the manner in which any election by the Company to redeem
the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem,
repay or purchase Securities of the series pursuant to any sinking fund
or analogous provision or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which, the
Currency in which, and other terms and conditions upon which Securities
of the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
21
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and, if other
than denominations of $5,000, the denomination or denominations in
which any Bearer Securities of the series shall be issuable;
(10) if other than the Trustee, the identity of each
Security Registrar and/or Paying Agent;
(11) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the method by which such portion shall be
determined;
(12) if other than Dollars, the Currency in which payment
of the principal of (or premium, if any) or interest, if any, on the
Securities of the series shall be payable or in which the Securities of
the series shall be denominated and the particular provisions
applicable thereto in accordance with, in addition to or in lieu of any
of the provisions of Section 312;
(13) whether the amount of payments of principal of (or
premium, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method
(which index, formula or method may be based on one or more Currencies,
commodities, equity indices or other indices), and the manner in which
such amounts shall be determined;
(14) whether the principal of (or premium, if any) or
interest, if any, on the Securities of the series are to be payable, at
the election of the Company or a Holder thereof, in a Currency other
than that in which such Securities are denominated or stated to be
payable, the period or periods within which (including the Election
Date), and the terms and conditions upon which, such election may be
made, and the time and manner of determining the exchange rate between
the Currency in which such Securities are denominated or stated to be
payable and the Currency in which such Securities are to be so payable,
in each case in accordance with, in addition to or in lieu of any of
the provisions of Section 312;
(15) the designation of the initial Exchange Rate Agent,
if any;
(16) the applicability, if any, of Sections 1402 and/or
1403 to the Securities of the series and any provisions in modification
of, in addition to or in lieu of any of the provisions of Article
Fourteen that shall be applicable to the Securities of the series;
(17) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(18) any deletions from, modifications of or additions to
the Events of Default or covenants or other provisions (including any
deletions from, modifications of or additions to Section 1009) of the
Company with respect to Securities of the series,
22
whether or not such Events of Default or covenants or other provisions
are consistent with the Events of Default or covenants or other
provisions set forth herein;
(19) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities, whether any Securities of the series are to be
issuable initially in temporary global form and whether any Securities
of the series are to be issuable in permanent global form with or
without coupons and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305, whether
Registered Securities of the series may be exchanged for Bearer
Securities of the series (if permitted by applicable laws and
regulations), whether Bearer Securities of the series may be exchanged
for Registered Securities of such series, and the circumstances under
which and the place or places where any such exchanges may be made and
if Securities of the series are to be issuable in global form, the
identity of any initial depository therefor;
(20) the date as of which any Bearer Securities of the
series and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be issued;
(21) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, the manner in which, or the Person to whom, any interest on
any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining thereto as
they severally mature, and the extent to which, or the manner in which,
any interest payable on a temporary global Security on an Interest
Payment Date will be paid if other than in the manner provided in
Section 304;
(22) if Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and/or terms of such certificates, documents or conditions;
(23) whether and, if applicable, under what circumstances
and the Currency in which the Company will pay Additional Amounts as
contemplated by Section 1005 on the Securities of the series to any
Holder who is not a United States person (including any modification to
the definition of such term) in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have the
option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
(24) if Securities of the series are to issued upon the
exercise of warrants, the time, manner and place for such Securities to
be authenticated and delivered;
23
(25) if Securities of the series are to be convertible into
or exchangeable for any securities of any Person (including the
Company), the terms and conditions upon which such Securities will be
so convertible or exchangeable;
(26) whether the Securities of such series are subject to
subordination and any modification of, addition to or provision in lieu
of any of the provisions of Article Seventeen; and
(27) any other terms, conditions, rights and preferences
(or limitations on such rights and preferences) relating to the series
(which terms shall not be inconsistent with the requirements of the
Trust Indenture Act or 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 such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. Not all Securities of any one series need be
issued at the same time, and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series or to establish additional terms of such Securities
(which additional terms shall only be applicable to unissued or additional
Securities of such series).
If any of the terms of the series are established by action
taken pursuant to one or more Board Resolutions, such Board Resolutions shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 302. Denominations. The Securities of each series shall
be issuable in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provision with respect to Securities of
any series, the principal, premium and interest and Additional Amounts with
respect to the Securities shall be payable in Dollars. With respect to
Securities of any series denominated in Dollars, in the absence of any such
provisions, the Registered Securities of such series, other than Registered
Securities issued in global form (which may be of any denomination), shall be
issuable in denominations of $1,000 and any integral multiple thereof and the
Bearer Securities of such series, other than the Bearer Securities issued in
global form (which may be of any denomination), shall be issuable in a
denomination of $5,000.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on behalf
of the Company by its Chief Executive Officer, its President or a Vice
President, under its corporate seal reproduced thereon and attested by its
Secretary or an Assistant Secretary. The signature of any of these officers on
the Securities or coupons may be the manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or otherwise
reproduced on the Securities.
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company,
24
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
together with any coupon 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 such 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, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture, 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 Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled. If not all
the Securities of any series are to be issued at one time and if the Board
Resolution or supplemental indenture 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 terms of particular Securities of
such series such as interest rate, stated maturity, date of issuance and date
from which interest shall accrue.
In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be provided with and (subject to TIA Sections 315(a) through
315(d)) shall be fully protected in relying upon
(A) an Opinion of Counsel stating:
(i) that the form or forms of such Securities and any coupons
have been established in conformity with the provisions of this
Indenture;
(ii) that the terms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
and
(iii) that such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for authentication
in accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Company in
the manner and subject to any conditions specified in such Opinion of
Counsel, will
25
constitute the legal, valid and binding obligations of
the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws of general applicability relating to
or affecting the enforcement of creditors' rights, to general equitable
principles and to such other qualifications as such counsel shall
conclude do not materially affect the rights of Holders of such
Securities and any coupons.
(B) an Officers' Certificate stating, to the knowledge of the
signers of such certificate, that no Event of Default with respect to
any of the Securities shall have occurred and be continuing; and
(C) an executed supplemental indenture (if any).
Notwithstanding the provisions of Section 301 and of this
Section 303, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to the preceding two paragraphs prior to or at the
time of issuance of each Security, but such documents shall be delivered prior
to or at the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate and deliver
any 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.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form provided
for herein duly executed by the Trustee by manual signature of an authorized
officer, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in
Section 310 together with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 304. Temporary Securities. (a) Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form or, if authorized, in
bearer form
26
with one or more coupons or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities. Temporary Securities may be in global form.
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 in a Place of Payment for that
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 principal amount of
definitive Securities of the same series of authorized denominations; provided,
however, that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided further that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
(b) 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 Euroclear and Clearstream, 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, 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
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal 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. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof, provided,
however, that, 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 Euroclear as to the portion of such temporary global Security filed
for its account then to be exchanged and a certificate dated the Exchange Date
or a subsequent date and signed by Clearstream as to the
27
portion of such temporary global Security held for its account then to be
exchanged, each in the form set forth in Exhibit A-2 to this Indenture (or in
such other form as may be established pursuant to Section 301); and provided
further that definitive Bearer Securities shall be delivered in exchange for a
portion of a temporary global Security only in compliance with the requirements
of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or Clearstream, as the case may be, to request such exchange on his
behalf and delivers to Euroclear or Clearstream, as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 301), dated no earlier than
15 days prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and Clearstream, 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 Euroclear or Clearstream definitive Securities in bearer form to
be delivered in exchange for any portion of a temporary global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and
Clearstream on such Interest Payment Date upon delivery by Euroclear and
Clearstream to the Trustee of a certificate or certificates in the form set
forth in Exhibit A-2 to this Indenture (or in such other form as may be
established pursuant to Section 301), for credit without further interest
thereon 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 Euroclear or Clearstream,
as the case may be, a certificate dated no earlier than 15 days prior to the
Interest Payment Date occurring prior to such Exchange Date in the form set
forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301). Notwithstanding anything to the contrary
herein contained, the certifications made pursuant to this paragraph shall
satisfy the certification requirements of the preceding two paragraphs of this
Section and of the third paragraph of Section 303 of this Indenture and the
interests of the Persons who are the beneficial owners of the temporary global
Security with respect to which such certification was made will be exchanged for
definitive Securities of the same series and of like tenor on the Exchange Date
or the date of certification if such date occurs after the Exchange Date,
without further act or deed by such beneficial owners. Except as otherwise
provided in this paragraph, no payments of principal (or premium, if any) or
interest, if any, owing with respect to a beneficial interest in a temporary
global Security will be made unless and until such interest in such temporary
global Security shall have been exchanged for an interest in a definitive
Security. Any interest so received by Euroclear and Clearstream and not paid as
herein provided
28
shall be returned to the Trustee immediately prior to the expiration of two
years after such Interest Payment Date in order to be repaid to the Company in
accordance with Section 1003.
With respect to Exhibits A-1 and A-2 to this Indenture, the
Company may, in its discretion and if required or desirable under applicable law
or as set forth in any Board Resolution or supplemental indenture with respect
to any series of Securities, substitute one or more other forms of such exhibits
for such exhibits, eliminate the requirement that any or all certificates be
provided, or change the time that any certificate may be required, provided that
such substitute form or forms or notice of elimination or change of such
certification requirement have theretofore been delivered to the Trustee with a
Company Request and such form or forms, elimination or change is reasonably
acceptable to the Trustee.
Section 305. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register for each series of Securities (the registers maintained
in the Corporate Trust Office of the Trustee and in any other office or agency
of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Registered Securities and of transfers of Registered Securities. The Security
Register shall be in written form or any other form capable of being converted
into written form within a reasonable time. At all reasonable times, the
Security Register shall be open to inspection by the Trustee. The Trustee is
hereby initially appointed as security registrar (the "Security Registrar") for
the purpose of registering Registered Securities and transfers of Registered
Securities as herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, 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 denomination and of a like aggregate principal amount, upon
surrender of the Registered Securities to be exchanged at such office or agency.
Whenever any Registered Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive. Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) so expressly permitted in or pursuant to the
applicable Board Resolution and (subject to Section 303) set forth in the
applicable Officers' Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 301, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of the same
series of any authorized denomination and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a
29
Bearer Security is unable to produce any such unmatured coupon or coupons or
matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged, the
Company shall deliver to the Trustee definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in 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 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 without charge, and the
Trustee shall authenticate and deliver, in exchange for each portion of such
permanent global Security, an equal 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 301, shall be in
the form of
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Bearer Securities or Registered Securities, or any combination thereof, as shall
be specified by the beneficial owner thereof; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be among
those selected for redemption; and provided further that no Bearer Security
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange. Every
Registered Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security if such Security may be among those
selected for redemption during a period beginning at the opening of business 15
days before the day of the selection for redemption of Securities of that series
under Section 1103 or 1203 and ending at the close of business on (A) if
Securities of the series are issuable only as Registered Securities, the day of
the mailing of the relevant notice of redemption and (B) if Securities of the
series are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, or (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 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, or (iv) to issue, register the transfer of or
exchange
31
any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
Each Holder of a Security agrees to indemnify the Company and
the Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Security in violation of any provision of this
Indenture and/or applicable United States Federal or state securities law.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among depository
participants or beneficial owners of interests in any global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by, the terms of this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon appertaining to
it 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, or, in case any such mutilated
Security or coupon has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security,
pay such Security or coupon.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Company shall execute and upon
Company Order the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security for which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding,
with coupons corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such destroyed,
lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such mutilated, destroyed, lost or stolen Security or to
the Security to which such mutilated, destroyed, lost or stolen coupon
appertains, pay such Security or coupon; provided, however, that payment of
principal of (and premium, if any) and interest, if any, on Bearer Securities
shall, except as otherwise provided in Section
32
1002, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any mutilated, destroyed, lost or
stolen Security or in exchange for a Security to which a mutilated, destroyed,
lost or stolen coupon appertains, shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed,
lost or stolen Security and its coupons, if any, or the mutilated, destroyed,
lost or stolen coupon shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series and their coupons, if any, duly
issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
Section 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset. (a) Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, interest, if any, on any
Registered Security that is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or agency of
the Company maintained for such purpose pursuant to Section 1002; provided,
however, that each installment of interest, if any, on any Registered Security
may at the Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to
Section 309, to the address of such Person as it appears on the Security
Register or (ii) transfer to an account located in the United States maintained
by the payee.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, may be
made, in the case of a Bearer Security, by transfer to an account located
outside the United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to each of Euroclear and Clearstream,
with respect to that portion of such permanent global Security held for its
account by the Common Depositary, for the purpose of permitting each of
Euroclear and Clearstream to credit the interest, if any, received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment
33
for such series) on any Regular Record Date and before the opening of business
(at such office or agency) on the next succeeding Interest Payment Date, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date and interest will not be payable on such Interest Payment
Date in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date 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 and, if applicable, interest on
such defaulted interest (to the extent lawful) at the rate specified in the
Securities of such series (such defaulted interest and, if applicable, interest
thereon is herein collectively called "Defaulted Interest") may be paid by the
Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security of
such series and the date of the proposed payment (which shall not be
less than 20 days after such notice is received by the Trustee), and at
the same time the Company shall deposit with the Trustee an amount of
money in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given in the manner provided in Section 106,
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 given, such Defaulted Interest shall be paid to
the Persons in whose name 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). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series after
the close of business at such office or agency on any Special Record
Date and before the opening of business
34
at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without
the coupon relating to such proposed date of payment and Defaulted
Interest will not be payable on such proposed date of payment in
respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when
due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest
on the Registered Securities of any series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and 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.
(b) The provisions of this Section 307(b) may be made
applicable to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to such
Section 301). The interest rate (or the spread or spread multiplier or other
formula used to calculate such interest rate, if applicable) on any Security of
such series may be reset by the Company on the date or dates specified on the
face of such Security (each an "Optional Reset Date"). The Company may exercise
such option with respect to such Security by notifying the Trustee of such
exercise at least 45 but not more than 60 days prior to an Optional Reset Date
for such Security. Not later than 40 days prior to each Optional Reset Date, the
Trustee shall transmit, in the manner provided for in Section 106, to the Holder
of any such Security a notice (the "Reset Notice") indicating whether the
Company has elected to reset the interest rate (or the spread or spread
multiplier or other formula used to calculate such interest rate, if
applicable), and if so (i) such new interest rate (or such new spread or spread
multiplier or other formula, if applicable) and (ii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional
Reset Date or if there is no such next Optional Reset Date, to the Stated
Maturity Date of such Security (each such period, a "Subsequent Interest
Period"), including the date or dates on which or the period or periods during
which and the price or prices at which such redemption may occur during the
Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier or other formula used to calculate such
interest rate, if applicable) provided for in the Reset Notice and establish an
interest rate (or a spread or spread multiplier or other formula used to
calculate such interest rate, if applicable) that is higher than the interest
rate (or the spread or spread multiplier or other formula, if applicable)
provided for in the Reset Notice, for the Subsequent Interest Period by causing
the Trustee to transmit, in the manner provided for in Section 106, notice of
such higher interest rate (or such higher spread or spread multiplier or other
formula, if applicable) to the Holder of such Security. Such notice shall be
irrevocable. All Securities with respect to which the interest rate (or the
spread or spread multiplier or other formula used to calculate such interest
rate, if applicable) is reset on an Optional Reset Date, and with respect to
which the Holders of such Securities have not tendered such Securities for
repayment (or have validly revoked any such tender) pursuant to the next
succeeding paragraph,
35
will bear such higher interest rate (or such higher spread or spread multiplier
or other formula, if applicable).
The Holder of any such Security may have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 308. Optional Extension of Stated Maturity. The
provisions of this Section 308 may be made applicable to any series of
Securities pursuant to Section 301 (with such modifications, additions or
substitutions as may be specified pursuant to such Section 301). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 45
but not more than 90 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "Original Stated Maturity"). If
the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate (or spread, spread multiplier
or other formula used to calculate such interest rate, if applicable), if any,
applicable to the Extension Period and (iv) the provisions, if any, for
redemption during such Extension Period. Upon the Trustee's transmittal of the
Extension Notice, the Stated Maturity of such Security shall be extended
automatically and, except as modified by the Extension Notice and as described
in the next paragraph, such Security will have the same terms as prior to the
transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate (or spread, spread multiplier or other formula used to
calculate such interest rate, if applicable) provided for in the Extension
Notice and establish a higher interest rate (or spread, spread multiplier or
other formula used to calculate such interest rate, if applicable) for the
Extension Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or spread, spread
multiplier or other formula used to calculate such interest rate, if applicable)
to the Holder of such Security. Such notice shall be irrevocable. All Securities
with respect to which the Stated Maturity is extended will bear such higher
interest rate.
If the Company extends the Stated Maturity of any Security,
the Holder will have the option to elect repayment of such Security by the
Company on the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment on the
Original Stated Maturity once the Company has extended the Stated Maturity
thereof, the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders, except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to the Original Stated Maturity and except that, if the Holder has tendered any
Security for repayment pursuant to an Extension Notice, the Holder may by
written notice to the Trustee revoke such tender for repayment until the close
of business on the tenth day before the Original Stated Maturity.
Section 309. 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 305 and 307) interest, if any, on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and none of
the Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the 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 coupons be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
All payments made to any Holder of Securities, or upon his
order, shall be valid, and, to the extent of the sum or sums paid, effectual to
satisfy and discharge the liability for moneys payable upon such Security or
coupon.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any depositary, as a Holder, with respect to such
global Security or impair, as between such depositary and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its nominee) as
Holder of such global Security.
Section 310. Cancellation. Unless otherwise specified pursuant
to Section 301 for Securities of any series, all Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
conversion, exchange, registration of transfer or exchange
37
or for credit against any current or future sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities and coupons so delivered to the Trustee shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of by the Trustee in accordance
with its customary procedures and certification of their disposal delivered to
the Company unless by Company Order the Company shall direct that cancelled
Securities be returned to it.
Section 311. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 with respect to any Securities,
interest, if any, on the Securities of each series shall be computed on the
basis of a 360-day year of twelve 30-day months.
Section 312. Currency and Manner of Payments in Respect of
Securities. (a) Unless otherwise specified with respect to any Securities
pursuant to Section 301, with respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of (and premium, if any) and interest, if any,
on any Registered or Bearer Security of such series will be made in the Currency
in which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 312 may be modified or superseded with
respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of (or
premium, if any) or interest, if any, on such Registered Securities in any of
the Currencies which may be designated for such election by delivering to the
Trustee a written election with signature guarantees and in the applicable form
established pursuant to Section 301, not later than the close of business on the
Election Date immediately preceding the applicable payment date. If a Holder so
elects to receive such payments in any such Currency, such election will remain
in effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee (but any such change
must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article Four or Fourteen or with respect
to which a notice of redemption has been given by the Company or a notice of
option to elect repayment has been sent by such Holder or such
38
transferee). Any Holder of any such Registered Security who shall not have
delivered any such election to the Trustee not later than the close of business
on the applicable Election Date will be paid the amount due on the applicable
payment date in the relevant Currency as provided in Section 312(a). The Trustee
shall notify the Exchange Rate Agent as soon as practicable after the Election
Date of the aggregate principal amount of Registered Securities for which
Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, unless otherwise specified pursuant to Section 301, not later
than the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying, in the Currency in which Registered
Securities of such series are payable, the respective aggregate amounts of
principal of (and premium, if any) and interest, if any, on the Registered
Securities to be paid on such payment date, specifying the amounts in such
Currency so payable in respect of the Registered Securities as to which the
Holders of Registered Securities of such series shall have elected to be paid in
another Currency as provided in paragraph (b) above. If the election referred to
in paragraph (b) above has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency payments to be made on such payment date. Unless otherwise specified
pursuant to Section 301, the Dollar or Foreign Currency amount receivable by
Holders of Registered Securities who have elected payment in a Currency as
provided in paragraph (b) above shall be determined by the Company on the basis
of the applicable Market Exchange Rate in effect on the third Business Day (the
"Valuation Date") immediately preceding each payment date, and such
determination shall be conclusive and binding for all purposes, absent manifest
error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b) above, then with
respect to each date for the payment of principal of (and premium, if any) and
interest, if any, on the applicable Securities denominated or payable in such
Foreign Currency occurring after the last date on which such Foreign Currency
was used (the "Conversion Date"), the Dollar shall be the Currency of payment
for use on each such payment date. Unless otherwise specified pursuant to
Section 301, the Dollar amount to be paid by the Company to the Trustee and by
the Trustee or any Paying Agent to the Holders of such Securities with respect
to such payment date shall be, in the case of a Foreign Currency other than a
currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of
a currency unit, the Dollar Equivalent of the Currency Unit, in each case as
determined by the Exchange Rate Agent in the manner provided in paragraph (f) or
(g) below.
(e) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security denominated in any Currency shall have elected
to be paid in another Currency as provided in paragraph (b) above, and a
Conversion Event occurs with respect to such elected Currency, such Holder shall
receive payment in the Currency in which payment would have been made in the
absence of such election; and if a Conversion Event occurs
39
with respect to the Currency in which payment would have been made in the
absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions of paragraph
(h) below shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312, the following terms shall
have the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component currency of the relevant currency
unit, including, but not limited to, the euro.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant currency unit, including, but not
limited to, the euro, on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single currency, the respective Specified Amounts
of such Component Currencies shall be replaced by an amount in such
single Currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single
Currency, and such amount shall thereafter be a Specified Amount and
such single Currency shall thereafter be a Component Currency. If after
the Conversion Date any Component Currency shall be divided into two or
more currencies, the Specified Amount of such Component Currency shall
be replaced by amounts of such two or more currencies, having an
aggregate Dollar Equivalent value at the Market Exchange Rate on the
date of such replacement equal to the Dollar Equivalent value of the
Specified Amount of such former Component Currency at the Market
Exchange Rate immediately before such division and such amounts shall
thereafter be Specified Amounts and such currencies shall thereafter be
Component Currencies. If, after the Conversion Date of the relevant
currency unit, including, but not limited to, the euro, a Conversion
Event (other than any event referred to above in this definition of
"Specified Amount") occurs with respect to any Component Currency of
such currency unit and is continuing on the applicable Valuation Date,
the Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted
into Dollars at the Market Exchange Rate in effect on the Conversion
Date of such Component Currency.
40
"Election Date" shall mean the date for any series of
Registered Securities as specified pursuant to clause (13) of Section
301 by which the written election referred to in paragraph (b) above
may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee and all Holders of such Securities
denominated or payable in the relevant Currency. The Exchange Rate Agent shall
promptly give written notice to the Company and the Trustee of any such decision
or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee and to the Exchange
Rate Agent (and the Trustee will promptly thereafter give notice in the manner
provided for in Section 106 to the affected Holders) specifying the Conversion
Date. In the event the Company so determines that a Conversion Event has
occurred with respect to the euro or any other currency unit in which Securities
are denominated or payable, the Company will immediately give written notice
thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will
promptly thereafter give notice in the manner provided for in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee and the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be
fully justified and protected in relying and acting upon information received by
it from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
Section 313. Appointment and Resignation of Successor Exchange
Rate Agent. (a) Unless otherwise specified pursuant to Section 301, if and so
long as the Securities of any series (1) are denominated in a Currency other
than Dollars or (ii) may be payable in a Currency other than Dollars, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent
to make the necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 301 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of converting
the issued Currency into the applicable payment Currency for the payment of
principal (and premium, if any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the Company and the
Trustee.
41
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause with respect to the Securities of one or more
series, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to
the Securities of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the Securities of
one or more or all of such series and that, unless otherwise specified pursuant
to Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
Section 314. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall indicate the CUSIP numbers of the Securities 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 redemption 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 FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture. Unless
otherwise specified pursuant to Section 301, this Indenture shall upon Company
Request cease to be of further effect with respect to any series of Securities
specified in such Company Request (except as to any surviving rights of
registration of transfer or exchange of Securities of such series expressly
provided for herein or pursuant hereto and any right to receive Additional
Amounts as contemplated by Section 1005) and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and 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 Xxxxxxx
000, (xx) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Xxxxxxx 000, (xxx) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series for whose payment money has
heretofore been deposited in trust with the Trustee or any Paying Agent
or segregated and held in trust by the Company and thereafter repaid to
the Company, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
42
(B) all Securities of such series 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) if redeemable at the option of the Company, 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
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the Currency in
which the Securities of such series are payable, sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest, if any, to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606, the obligations of
the Trustee to any Authenticating Agent under Section 611 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 and the obligations of the Company and the Trustee
with respect to Securities of such series under Sections 305, 306, 1002 and
1005, with respect to the payment of Additional Amounts, if any, and with
respect to any rights of Holders to require the Company to repay such Securities
as contemplated by Section 1301, shall survive such satisfaction and discharge.
These obligations shall continue to be governed and construed in accordance with
Section 111.
Section 402. Application of Trust Money. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited with
the Trustee; but such money need not be segregated from other funds except to
the extent required by law.
43
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body) unless it is inapplicable to a particular
series or is specifically deleted or modified in the supplemental indenture
under which such series of Securities is issued or has been deleted or modified
in an indenture supplement hereto:
(1) default in the payment of any interest on any Security
of that series, or any related coupon, when such interest or coupon
becomes due and payable, and continuance of such default for a period
of 45 days; provided, however, that if the Company is permitted by the
terms of the Securities of such series to defer the payment in
question, the date on which such payment is due and payable shall be
the date on which the Company is required to make payment following
such deferral, if such deferral has been elected pursuant to the terms
of the Securities; 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 the Securities of that series and
Article Twelve; or
(4) default in the performance, or breach, of any covenant
or agreement of the Company in this Indenture which affects or is
applicable to the Securities of that series (other than a default in
the performance, or breach of a covenant or agreement that is
specifically dealt with elsewhere in this Section or that has expressly
been included in this Indenture solely for the benefit of one or more
series of Securities other than that series), and continuance of such
default or breach for a period of 90 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 all 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 unless the
Trustee, or the Trustee and the Holders of a principal amount of
Securities of such series not less than the principal amount of
Securities the Holders of which gave such notice, as the case may be,
shall agree in writing to an extension of such period prior to its
expiration; or
(5) the entry of a decree or order by a court having
jurisdiction in the premises 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 the Federal Bankruptcy Code or any other
applicable federal or state law,
44
or appointing a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or of any substantial part
of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed and
in effect for a period of 90 consecutive days; or
(6) the institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under the Federal Bankruptcy Code or any other applicable
federal or state law, or the consent by it to the filing of any such
petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other 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
(7) any other Event of Default provided with respect to
Securities of that series.
Section 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default described in clause (1), (2), (3), (4) or (7)
of Section 501 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 aggregate principal amount of the Outstanding Securities of
that series may declare the principal amount (or, if the Securities of that
series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms of that series)
plus accrued and unpaid interest on 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 plus accrued and unpaid interest (or specified portion thereof) shall
become immediately due and payable. If an Event of Default specified in Section
501(5) or 501(6) occurs and is continuing, then the principal amount of all the
Securities 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.
At any time after a declaration of acceleration with respect
to Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter provided in this Article, the Holders of a
majority in principal amount (or specified 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 in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)),
(A) all overdue interest, if any, on all Outstanding
Securities of that series (or of all series, as the case may
be) and any related coupons,
45
(B) all unpaid principal of (and premium, if any) any
Outstanding Securities of that series (or of all series, as the
case may be) which has become due otherwise than by such
declaration of acceleration, and interest on such unpaid
principal at the rate or rates prescribed therefor in such
Securities,
(C) 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 (or of all series, as the case may be), other than the
non-payment of amounts of principal of (or premium, if any, on) or
interest on Securities of that series (or of all series, as the case
may be) which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Security and any related coupon when such interest
becomes due and payable and such default continues for a period of 60
days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof, then the
Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities and coupons, the whole amount
then due and payable on such Securities and coupons for principal (and
premium, if any) and interest, if any, and interest on any overdue
principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, on any overdue installments of
interest, if any, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any
series (or of all series, as the case may be) 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 (or of all series, as the
case may be) 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.
46
Section 504. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor 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, premium, if any, 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 premium, if any), or such portion of the principal
amount of any series of Original Issue Discount Securities or Indexed
Securities as may be specified in the terms of such series, and
interest, if any, owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders 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, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
Section 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed
47
by the Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, if any, upon presentation of the
Securities 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 606;
SECOND: Subject to the terms of Article Seventeen, if
applicable, to the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest, if any, 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 premium, if any) and
interest, if any, respectively; and
THIRD: The balance, if any, to the Company.
Section 507. Limitation on Suits. No Holder of any Security of
any series or any related coupons shall have any right to institute any
proceeding, judicial or otherwise, with respect to this indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of that
series as part of the majority set forth in Section 507(2) below;
(2) the Holders of not less than 33% in principal amount of
the Outstanding Securities of that series in the case of any Event of Default
described in clause (1), (2), (3), (4) or (7) of Section 501 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 satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
or more in principal amount of the Outstanding Securities of that series in the
case of any Event of Default described in clause (1), (2), (3), (4) or (7) of
Section 501;
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
Holders of Securities of the same series, in the case of any Event of Default
described in Section 501, 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
48
herein provided and for the equal and ratable benefit of all Holders of
Securities of the same series, in the case of any Event of Default described in
Section 501.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment, as provided herein (including, if
applicable, Article Fourteen) and in such Security, of the principal of (and
premium, if any) and (subject to Section 307) interest, if any, on, such
Security or payment of such coupon on the respective Stated 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 509. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders of Securities and coupons
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupon in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 511. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security or coupon to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 512. Control by Holders. With respect to the
Securities of any series, the Holders of not less than a majority in principal
amount of the Outstanding Securities of such series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, relating to or arising under Section 501, provided that in each case
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
49
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might
involve it in personal liability or be unjustly prejudicial to the Holders of
Securities of such series not consenting.
Section 513. Waiver of Past Defaults. Subject to Section 502,
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 waive any past default described in Section 501 and its
consequences, except a default
(1) in respect of the payment of the principal of (or
premium, if any) or interest, if any, on any Security or any related
coupon, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, any such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
Section 514. Waiver of Usury, 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 or any usury or other 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.
Section 515. Undertaking for Costs. All parties to this
Indenture agree that in any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorney's fees and expenses, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant, provided that this Section 515 shall not apply to a suit by
the Trustee, a suit by a Holder pursuant to Section 508 hereof, or a suit by
Holders of not less than 10% in principal amount of the then Outstanding
Securities of such series.
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ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults. Within five days after the
earlier of receipt from the Company of notice of the occurrence of a Default or
Event of Default hereunder or the date such occurrence hereunder actually
becomes known to a Responsible Officer of the Trustee, the Trustee shall
transmit to all Holders of Securities of such series, in the manner and to the
extent provided in TIA Section 313(c), notice of such default hereunder known to
the Trustee, unless such Default shall have been cured or waived; provided,
however, that, except in the case of a Default in the payment of the principal
of (or premium, if any) or interest, if any, on any Security of such series or
in the payment of any sinking fund installment with respect to Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Securities of such series and any related coupons;
and provided further that in the case of any Default of the character specified
in Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof.
Section 602. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee;
(2) 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, other evidence of
indebtedness or other paper or document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(3) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order (other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(4) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(5) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a
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majority in principal amount of the Outstanding Securities of any
series, determined as provided in Sections 101 and 104;
(6) 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;
(7) the Trustee may consult with counsel as to legal
matters and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(8) 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
satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(9) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled, at
reasonable times previously notified to the Company, to examine the
relevant books, records and premises of the Company, personally or by
agent or attorney at the expense of the Company and shall incur no
liability of any kind by reason of such inquiry or investigation, but
in the case of any certificate or opinion specifically required by the
Indenture to be delivered to the Trustee, the Trustee shall have a duty
to examine the same to determine whether they conform to the Indenture
requirements;
(10) 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;
(11) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture other than liabilities arising out of the
negligence, bad faith or willful misconduct of the Trustee;
(12) the rights, privileges, protections, immunities and
benefits given to the Trustee, including its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of
its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder; and
52
(13) the trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be signed
by any person authorized to sign an Officers' Certificate, including
any person specified as so authorized in any such certificate
previously delivered and not superseded.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers.
Section 603. Trustee Not Responsible for Recitals or Issuance
of Securities. The recitals contained herein and in the Securities, except for
the Trustee's certificates of authentication, and in any coupons shall be taken
as the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
Section 604. May Hold Securities. The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company or of the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities or coupons and, subject to TIA
Sections 310(b) and 311, 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 605. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
Section 606. Compensation and Reimbursement. The Company
agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder as shall be
agreed upon in writing from time to time (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 upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as shall be determined to have been caused by its own negligence,
willful misconduct or bad faith; and
53
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, claim, damage, liability or expense incurred without
negligence, willful misconduct 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.
The obligations of the Company under this Section shall not be
subordinated to the payment of Senior Indebtedness pursuant to Article Seventeen
and shall constitute additional indebtedness hereunder and shall survive the
resignation or removal of the Trustee and the satisfaction and discharge of this
Indenture.
As security for the performance of such obligations of the
Company, the Trustee shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest, if
any, on particular Securities or any coupons.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(5) or (6), the
expenses (including reasonable charges and expense of its counsel) of and the
compensation for such services are intended to constitute expenses of
administration under the Federal Bankruptcy Code or any applicable state
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination
of this Indenture and the resignation or removal of the Trustee.
Section 607. Corporate Trustee Required; Eligibility. There
shall be at all times a Trustee hereunder which shall be eligible to act as
Trustee under TIA Section 310(a)(1) and shall have a combined capital and
surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of Federal,
State, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 609 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee 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.
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(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of not less than 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 609 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee 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.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by
any Holder 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
607 and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security
for at least six months, 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,
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities, or (ii) subject to TIA
Section 315(e), any Holder 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.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of 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).
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself
55
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of
such series.
(f) 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
to the Holders of Securities of such series in the manner provided for in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
Section 609. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee 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.
(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 (1) 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 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. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued pursuant
to this Indenture, the terms
56
"Indenture" and "Securities" shall have the meanings specified in the provisos
to the respective definitions of those terms in Section 101 that contemplate
that situation.
(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 rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 610. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all 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. As soon as practicable thereafter, the
successor Trustee shall give written notice in the manner provided in Sections
105 and 106 of its succession to the Company and to the Holders of Securities.
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. In case any of the Securities shall
not have been authenticated by such predecessor Trustee, any successor Trustee
may authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor Trustee. In all such cases such certificates
shall have the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
Section 611. Appointment of Authenticating Agent. At any time
when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series and the Trustee shall give written notice of such
appointment to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve, in the manner provided for in Section 106.
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Any such appointment shall be evidenced by an instrument in
writing signed by a Responsible Officer of the Trustee, and a copy of such
instrument shall be promptly furnished to the Company. 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
reasonably acceptable to the Company and shall at all times be a bank or trust
company or corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to
57
supervision or examination by federal or state authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
As soon as practicable thereafter, the successor Authenticating Agent shall give
written notice by mail, first class postage prepaid or by guaranteed overnight
courier or by facsimile transmission (receipt confirmed by an appropriate
officer of the Trustee or the Company, as the case may be) followed by overnight
courier of its succession to the Trustee and the Company.
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 give written notice of
such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 606.
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
alternate certificate of authentication in the following form:
Dated:_________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
58
The Bank of New York, as Trustee
By ______________________
as Authenticating Agent
By ______________________
Authorized Officer
Section 612. Conflicting Interests. The Trustee shall comply
with the provisions of Section 310(b) of the Trust Indenture Act.
Section 613. Appointment of Co-Trustee.
1. For the purpose of meeting any legal requirements of any
jurisdiction in which the Company may at the time be located in connection with
the enforcement of any right or the taking of any action on behalf of the
Holders of any Securities issued hereunder, the Trustee shall have the power and
may execute and deliver all instruments necessary to appoint one or more Persons
to act as a co-trustee or co-trustees, or separate trustee or separate trustees,
such powers, duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable. Each co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a trustee under Section 607. The
Trustee shall promptly notify the Holders and the Company of the appointment of
a co-trustee or separate trustee under this section.
2. Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(a) all rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations shall
be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Trustee;
(b) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder;
(c) the Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee;
(d) any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall
refer to this Indenture and the conditions of this Article Six. Each
separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or
59
separately, as may be provided therein, subject to all the provisions
of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or
affording protection or rights (including the rights to compensation,
reimbursement and indemnification hereunder) to, the Trustee. Every
such instrument shall be filed with the Trustee; and
(e) any separate trustee or co-trustee may at any time
constitute the Trustee its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful
act under or in respect of this Indenture on its behalf and in its name
for the purposes of enforcing any rights or taking any other action on
behalf of the Holders of any Securities issued hereunder.
Section 614. Trustee's Application for Instructions from the
Company. Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
five Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders. The
Company will furnish or cause to be furnished to the Trustee:
(i) semiannually, not later than 15 days after each
Regular Record Date for Securities of each series at the time Outstanding, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Registered Securities as of such Regular Record
Date, or if there is no Regular Record Date for interest for such series of
Securities, semiannually, upon such dates as are set forth in the Board
Resolution, Officers' Certificates indenture supplemental hereto authorizing
such series, and
(ii) at such other times as the Trustee may reasonably
request in writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as
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provided in Section 701 and the names and addresses of Holders received by the
Trustee in its capacity as Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
The rights of the Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any Authenticating Agent nor any Paying Agent nor
any Security Registrar shall be held accountable by reason of the disclosure of
any information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, 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 TIA Section
312(b).
Section 702. Reports by Trustee. Within 60 days after May 15
of each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit to the Holders
of Securities, in the manner and to the extent provided in TIA Section 313(c), a
brief report dated as of such May 15 if required by TIA Section 313(a).
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 of the listing of the
Securities on any stock exchange or any delisting therefrom.
Section 703. Reports by Company. The Company shall:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the Company
may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports
pursuant to either of such Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Securities Exchange Act of
1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations;
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(3) transmit to all Holders, in the manner and to the
extent provided in TIA Section 313(c), within 30 days after the filing
thereof with the Trustee, such summaries, if any, of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission;
(4) deliver such reports, information and documents to the
Trustee 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 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);
and
(5) deliver to the Trustee, as soon as reasonably possible
and in any event within five business days after the Company becomes
aware of the occurrence of any Event of Default or an event which, with
notice or the lapse of time or both, would constitute an Event of
Default, an Officers' Certificate setting forth the details of such
Event of Default or default and the action which the Company proposes
to take with respect thereto.
Section 704. Calculation of Original Issue Discount. Upon
request of the Trustee, 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), if any, 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 EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, etc., Only on Certain
Terms. The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) such Person shall be a corporation or limited liability
company or trust organized and validly existing under the laws of the United
States or any state thereof or the District of Columbia;
(2) the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the Company's obligation for the due and punctual payment of the
principal of (and premium, if any) and interest, if any, on all the Securities
and the performance and observance of every covenant of this Indenture on the
part of the Company to be performed or observed;
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(3) immediately after giving effect to such transaction,
no Default or Event of Default shall have occurred and be continuing; and
(4) the Company or such Person shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Section 802. Successor Person Substituted. Upon any
consolidation by the Company with or merger by the Company into any other
corporation or any conveyance, transfer or lease of the properties and assets of
the Company substantially as an entirety to any Person in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and in the event of any such
conveyance or transfer, the Company (which term shall for this purpose mean the
Person named as the "Company" in the first paragraph of this Indenture or any
successor Person which shall theretofore become such in the manner described in
Section 801), except in the case of a lease, shall be discharged of all
obligations and covenants under this Indenture and the Securities and the
coupons and may be dissolved and liquidated.
Such successor entity thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company, any or all of
the Securities issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order of such
successor entity, instead of the Company, and subject to all the terms,
conditions and limitations prescribed in this Indenture, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor entity thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Securities of any series so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities of such series
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such merger in which the Company is not the
surviving corporation or any such consolidation, sale, lease, assignment,
transfer or conveyance, such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued as may be
appropriate.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders. Without the
consent of any Holders, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures
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supplemental hereto, in form reasonably satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities and any related
coupons (and if such covenants are to be for the benefit of less than
all series of Securities, stating that such covenants are being
included solely for the benefit of such series) or to surrender any
right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (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 being included
solely for the benefit of such series); provided, however, that in
respect of any such additional Events of Default such supplemental
indenture may provide for a particular period of grace after default
(which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee upon such
default or may limit the right of the Holders of a majority in
aggregate principal amount of that or those series of Securities to
which such additional Events of Default apply to waive such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate
the issuance of Securities in uncertificated form; provided that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(5) to add to, change or eliminate any of the provisions
of this Indenture; 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 pursuant to the requirements
of Section 1007 or 1009 or otherwise; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
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facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 609(b); or
(9) to close this Indenture with respect to the
authentication and delivery of additional series of Securities, to cure
any ambiguity, to correct or supplement any provision herein which may
be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; provided such action shall not adversely affect
the interests of the Holders of Securities of any series and any
related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in any
material respect; or
(11) to add a guarantor or guarantors for any series or all
series of the Securities;
(12) to comply with the requirements of the Commission in
order to effect or maintain the qualification of this Indenture under
the TIA; or
(13) to add provisions with respect to conversion or exchange
rights of Holders of Securities of any series.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount
of all Outstanding Securities of any series, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by or pursuant to a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture which affect
such series of Securities or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security of such series,
(1) change the Stated Maturity of the principal of (or
premium, if any) or any installment of interest on any Security of such series,
or reduce the principal amount thereof (or premium, if any) or the rate of
interest, if any, thereon, or change any obligation of the Company to pay
Additional Amounts contemplated by Section 1005 (except as contemplated by
Section 801(1) and permitted by Section 901(1)), or reduce the amount of the
principal of an Original Issue Discount Security or Indexed Security of such
series that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, or adversely affect any right of repayment
at the option of any Holder of any Security of such series, or change any Place
of Payment where, or the Currency in which, any Security of such series or any
premium or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on
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or after the Stated Maturity thereof (or, in the case of redemption or repayment
at the option of the Holder, on or after the Redemption Date or Repayment Date,
as the case may be), 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, for any waiver of
compliance with certain provisions of this Indenture that affect such
series or certain defaults applicable to such series hereunder and
their consequences provided for in this Indenture, or reduce the
requirements of Section 1504 for quorum or voting with respect to
Securities of such series, or
(3) make any change that adversely affects the right to
convert any Security in accordance with its terms, or
(4) modify any of the provisions of this Section, Section
513 or Section 1009, except to increase any such percentage or to
provide that certain other provisions of this Indenture that affect
such series cannot be modified or waived without the consent of the
Holder of each Outstanding Security of such series.
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. Any such
supplemental indenture adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture, or modifying in any manner
the rights of the Holders of Securities of such series, shall not affect the
rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders at the
close of Business on such record date, or their duly designated proxies, and
only such Persons, shall be entitled to consent to such supplemental indenture,
whether or not such Holders remain Holders after such record date; provided that
unless such consent shall have become effective by virtue of the requisite
percentage having been obtained prior to the date which is 180 days after such
record date, any such consent previously given shall automatically and without
further action by any Holder be cancelled and of no further effect.
Section 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be provided with, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
66
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture and that such supplemental indenture constitutes the
legal, valid and binding obligation of the Company, subject to customary
exceptions. 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 in a material way.
Section 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
Section 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 907. Notice of Supplemental Indentures. Promptly after
the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 902, the Company shall give notice thereof
to the Holders of each Outstanding Security affected, in the manner provided for
in Section 106, setting forth in general terms the substance of such
supplemental indenture.
Section 908. Effect on Senior Indebtedness. No supplemental
indenture shall adversely affect the rights of any holder of Senior Indebtedness
under Article Seventeen without the consent of such holder.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, if Any, and
Interest. The Company covenants and agrees for the benefit of the Holders of
each series of Securities and any related coupons that it will duly and
punctually pay the principal of (and premium, if any) and interest, if any, on
the Securities of that series in accordance with the terms of the Securities,
any coupons appertaining thereto and this Indenture. Unless otherwise specified
as contemplated by Section 301 with respect to any series of Securities, any
interest installments due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
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Section 1002. Maintenance of Office or Agency. If the
Securities of a series are issuable only as Registered Securities, the Company
will maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange, and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities,
the Company will maintain (A) in the Borough of Manhattan, the City of New York,
an office or agency where any Registered Securities of that series may be
presented or surrendered for payment, where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange, where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment in the circumstances described in the
following paragraph (and not otherwise), (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; provided,
however, that, if the Securities of that series are listed on any 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 any
required city located outside the United States 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 exchange, and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served.
The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of any
series and the related coupons may be presented and surrendered for payment at
the offices specified in the Security, in London, and the Company hereby
appoints the Trustee as its agent to receive such respective presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; provided,
however, that, if the Securities of a series are payable in Dollars, payment of
principal of (and premium, if any) and interest, if any, on any Bearer Security
shall be made at the office of the Company's Paying Agent in the Borough of
Manhattan, the City of New York, if (but only if) payment in Dollars of the full
amount of such principal, premium or interest, as the case may be, at all
offices or agencies outside the United States maintained for such purpose by the
Company
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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 any such designation; 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 of any such designation or rescission and of any change in
the location of any such other office or agency.
Unless otherwise specified with respect to any Securities as contemplated by
Section 301 with respect to a series of Securities, the Company hereby
designates as a Place of Payment for each series of Securities the office or
agency of the Company in the Borough of Manhattan, the City of New York, and
initially appoints the Trustee at its Corporate Trust Office as Paying Agent in
such city and as its agent to receive all such presentations, surrenders,
notices and demands. Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i) are
denominated in a Currency other than Dollars or (ii) may be payable in a
Currency other than Dollars, or so long as it is required under any other
provision of the Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one Exchange Rate Agent.
Section 1003. Money for Securities Payments to Be Held in
Trust. If the Company or any Subsidiary or any Affiliate of any of them shall at
any time act as Paying Agent with respect to any series of Securities and any
related coupons, it will, on or before each due date of the principal of (or
premium, if any) or interest, if any, on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay the principal of (or premium, if any) or interest, if any, on
Securities of such series 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 so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, prior to or on each
due date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (or
premium, if any) or interest, if any, 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 so to act.
The Company will cause each Paying Agent (other than the
Trustee) for any series of Securities 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:
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(1) hold all sums held by it for the payment of the
principal of (and premium, if any) and interest, if any, on Securities
of such 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 such series) in the making
of any payment of principal of (or premium, if any) or interest, if
any, on the Securities of such 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 terms as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Except as provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (or premium, if any) or interest, if
any, on any Security of any series, or any coupon appertaining thereto, and
remaining unclaimed for two years after such principal, 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 coupon 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, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 1004. Statement as to Compliance. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture. For
purposes of this Section 1004, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
Section 1005. Additional Amounts. If any Securities of a
series or a Board Resolution 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 such Additional Amounts as may be specified as contemplated
by Section 301. Whenever in this Indenture there is mentioned, in any context,
the payment of the principal (or premium, if any) or interest, if any,
70
on, or in respect of, any Security of a series or payment of any related coupon
or the net proceeds received on the sale or exchange of any Security of a
series, such mention shall be deemed to include mention of the payment of
Additional Amounts provided for by the terms of such series established pursuant
to Section 301 to the extent that, in such context, Additional Amounts are, were
or would be payable in respect thereof pursuant to such terms and express
mention of the payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional Amounts, at
least 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 premium,
if any) is made), and at least 10 days prior to each date of payment of
principal (or premium, if any) 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, 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
not United States persons without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of the
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 of that series or related coupons
and the Company will pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities. In the event that the Trustee
or any Paying Agent, as the case may be, shall not so receive the
above-mentioned certificate, then the Trustee or such Paying Agent shall be
entitled to (i) assume that no such withholding or deduction is required with
respect to any payment of principal of (or premium, if any) or interest, if any,
on any Securities of a series or related coupons until it shall have received a
certificate advising otherwise and (ii) to make all payments of principal of
(and premium, if any) and interest, if any, on the Securities of a series or
related coupons without withholding or deductions until otherwise advised. The
Company covenants to indemnify the Trustee and any Paying Agent for, and to hold
them harmless against, any loss, liability or expense reasonably incurred
without negligence, willful misconduct or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
Section 1006. Corporate Existence. Subject to Article Eight,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and the rights (charter
and statutory) and franchises of the Company; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries as a whole.
Section 1007. Limitation on Liens. (a) So long as any of the
Securities remain outstanding and unpaid, the Company will not create, and will
not permit any Restricted Subsidiary to create, any mortgage, pledge or lien of
or upon any Principal Property or shares of
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capital stock of any Restricted Subsidiary, whether owned at the date of this
Indenture or thereafter acquired, to secure indebtedness for borrowed money,
without making effective provision, and the Company covenants that in any such
case each will make or cause to be made effective provision, whereby the
Securities then Outstanding shall be secured by such mortgage, pledge or lien
equally and ratably with any and all other obligations and indebtedness thereby
secured so long as such indebtedness is so secured; provided that the foregoing
covenant shall not apply to any mortgage, pledge or lien (hereinafter in this
Section 1007 referred to as "liens") of the following character:
(1) liens on Principal Property existing at the time of
acquisition of such Principal Property or to secure the payment of all
or any part of the purchase price of such Principal Property or any
addition thereto or to secure any indebtedness incurred at the time of,
or within 120 days after, the acquisition of such Principal Property or
any addition thereto for the purpose of financing all or any part of
the purchase price thereof (provided such liens are limited to such
Principal Property or additions thereto);
(2) with respect to any series of Securities, any lien
existing on the date of issuance of such Securities;
(3) liens on property or shares of capital stock, or
securing any indebtedness of any corporation merged into or
consolidated with the Company and existing at the time such corporation
became a Restricted Security or was merged into or consolidated with
the Company or a Restricted Subsidiary;
(4) liens on property of any Restricted Subsidiary
securing indebtedness of a Restricted Subsidiary to the Company or to
any other Subsidiary or liens on property of the Company securing
indebtedness of the Company to any Subsidiary;
(5) liens of carriers, warehousemen, mechanics, repairmen,
vendors, lessors and materialmen incurred in the ordinary course of
business for sums not yet due or being contested in good faith;
(6) liens arising by reason of any judgment, decree or
order of any court, so long as any legal proceedings which may have
been duly initiated for the review of such judgment, decree or order
shall not have been finally terminated or so long as the period within
which such proceedings may be initiated shall not have expired; or
pledges or deposits to secure payment of workmen's compensation or
other insurance, good faith deposits in connection with bids, tenders,
contracts or leases, deposits to secure public or statutory
obligations, deposits to secure or in lieu of surety or appeal bonds,
deposits as security for the payment of taxes or, in each case,
obligations of a similar nature;
(7) liens in connection with the issuance of tax-exempt
industrial development or pollution control bonds or other similar
bonds to finance all or any part of the purchase price of or the cost
of constructing, equipping or improving property; provided that such
liens shall be limited to such property acquired (including personal
property) or constructed or such improvement and to real property on
which such construction or improvement is located; and provided,
further that the Company and the Restricted
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Subsidiaries may further secure all or any part of such purchase price
or the cost of construction of such improvements and personal property
by an interest in additional property of the Company and Restricted
Subsidiaries only to the extent necessary for the construction,
maintenance and operation of, and access to, such property so acquired
or constructed or such improvement;
(8) liens in favor of any customer arising in respect of
partial, progress, advance or other payments made by or on behalf of
such customer for goods produced for or services rendered to such
customer in the ordinary course of business not exceeding the amount of
such payments;
(9) extensions, renewals or replacements, in whole or in
part, of any lien referred to in the foregoing clauses (1) to (8),
inclusive, provided that the principal amount of indebtedness secured
thereby shall not exceed the indebtedness so secured plus any related
fees or other amounts and that such extension, renewal or replacement
shall be limited to all or any part of the same property that secured
the lien extended, renewed or replaced (plus improvements on such
property); and
(10) liens for taxes or assessments or governmental charges
or levies not yet due or delinquent, or which can thereafter be paid
without penalty, or which are being contested in good faith by
appropriate proceedings; landlord's liens on property held under lease,
and tenants' rights under leases; easements; and any other liens of a
nature similar to those hereinabove described in this clause (10) which
do not, in the opinion of the Company materially impair the use of such
property in the operation of the business of the Company or the value
of such property for the purposes of such business.
(b) Notwithstanding the provisions of paragraph (a) of this
Section 1007, the Company or any Restricted Subsidiary may create mortgages,
pledges or liens securing indebtedness for borrowed money if at the time of such
creation or assumption, and immediately after giving effect thereto and to the
application of proceeds thereof, Exempted Indebtedness does not exceed 10% of
Consolidated Net Tangible Assets as determined by reference to the Company's
then most recent quarterly or annual, as applicable, balance sheet.
Section 1008. Limitation on Sale and Leaseback Transactions.
(a) The Company will not and will not permit any Restricted Subsidiary to, enter
into any arrangement providing for the leasing by the Company or any Restricted
Subsidiary of any Principal Property under a lease which is, or should be,
capitalized on the financial statements of the Company or applicable Restricted
Subsidiary (except for leases for a term, including any renewal thereof, of not
more than three years and except for leases between any of the Company and a
Subsidiary or between Subsidiaries), which Principal Property has been or is to
be sold or transferred by the Issuer or such Restricted Subsidiary (herein
referred to as a "Sale and Leaseback Transaction") unless either:
(1) after giving effect to the application of proceeds
thereof, the Company or such Restricted Subsidiary could create
indebtedness for borrowed money secured by a lien pursuant to Section
1007 on the Principal Property to be leased back in an amount
73
equal to the Attributable Debt with respect to such sale and leaseback
transaction without equally and ratably securing Outstanding
Securities, or
(2) the Company, within 120 days after the sale or transfer
shall have been made by the Company or by any such Restricted
Subsidiary, applies an amount equal to the greater of (i) the net
proceeds of the sale of the Principal Property sold and leased back
pursuant to such arrangement or (ii) the fair market value of the
Principal Property so sold and leased back at the time of entering into
such arrangements (as determined by the Board of Directors) to the
retirement of Funded Debt; provided that the amount to be applied to
the retirement of Funded Debt shall be reduced by (a) the principal
amount of any Securities delivered within 120 days after such sale to
the Trustee for retirement and cancellation, and (b) the principal
amount of such Funded Debt, other than Securities, voluntarily retired
by the Company within 120 days after such sale. Notwithstanding the
foregoing, no retirement referred to in this clause (2) may be effected
by payment at maturity or pursuant to any mandatory sinking fund
payment or any mandatory prepayment provision.
(b) Notwithstanding the provisions of paragraph (a) of this
Section 1008, the Company or any Restricted Subsidiary may enter into Sale and
Leaseback Transactions, if at the time of such entering into, and immediately
after giving effect thereto and to the application of proceeds thereof, Exempted
Indebtedness does not exceed 10% of Consolidated Net Tangible Assets as
determined by reference to the Company's then most recent quarterly or annual,
as applicable, balance sheet.
Section 1009. Waiver of Certain Covenants. The Company may,
with respect to any series of Securities, omit in any particular instance to
comply with any term, provision or condition which affects such series set forth
in Sections 1006 to 1008, inclusive, or, as specified pursuant to Section 301
for Securities of such series, in any covenants of the Company added to Article
Ten pursuant to Section 301 in connection with Securities of such series, if the
Holders of at least a majority in principal amount of all Outstanding Securities
of any series affected by such term, provision or condition, by Act of such
Holders, waive such compliance in such instance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
to Holders of Securities of such series in respect of any such term, provision
or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
the terms of such Securities and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
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Section 1102. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of the
Company, 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 and shall deliver to the Trustee such
documentation and records as shall enable the Trustee to select the Securities
to be redeemed pursuant to Section 1103. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series 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 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 of the principal of Securities of such series; provided,
however, that no such partial redemption shall reduce the portion of the
principal amount of a Security not redeemed to less than the minimum authorized
denomination for Securities of such series established pursuant to Section 301.
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 Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
Section 1104. Notice of Redemption. Except as otherwise
specified as contemplated by Section 301, notice of redemption shall be given in
the manner provided for in Section 106 not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest
to the Redemption Date payable as provided in Section 1106, if any,
(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,
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender
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of such Security, the Holder will receive, without charge, a new
Security or Securities of authorized denominations for the principal
amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and
accrued interest, if any, to the Redemption Date payable as provided in
Section 1106 will become due and payable upon each such Security, or
the portion thereof, to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price and accrued interest,
if any,
(7) that the redemption is for a sinking fund, if such is
the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any if any, surrendered for redemption must be
accompanied by all coupons of that maturing series, subsequent to the
Redemption Date or the amount of any such missing coupon or coupons
will be deducted from the Redemption Price unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is
furnished,
(9) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be redeemed,
and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on such Redemption Date pursuant
to Section 305 or otherwise, the last date, as determined by the
Company, on which such exchanges may be made, and
(10) the CUSIP number of such security, if any.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price. Prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
the Redemption Price of, and accrued interest, if any, on, all the Securities
which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued
76
interest, if any) such Securities shall, if the same were interest-bearing,
cease to bear interest and the coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided below, shall
be void. Upon surrender of any such Security for redemption in accordance with
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, if any, to the Redemption
Date; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest; and provided further that installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
Section 1107. Securities Redeemed in Part. Any Security which
is to be redeemed only in part (pursuant to the provisions of this Article or of
Article Twelve) shall be surrendered at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or such Holder's 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 Security or
Securities of the same series, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article. Retirements of
Securities of any series pursuant to any sinking fund shall be made in
accordance with the terms of such Securities and (except as otherwise specified
as contemplated by Section 301 for Securities of any series) in accordance with
this Article.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with
Securities. Subject to Section 1203, in lieu of making all or any part of any
sinking fund payment with respect to any Securities of a series in cash, the
Company may at its option (1) deliver to the Trustee Outstanding Securities of a
series (other than any previously called for redemption) theretofore purchased
or otherwise acquired by the Company together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto,
and/or (2) receive credit for the principal amount of Securities of such series
which have been previously delivered to the Trustee by the Company or for
Securities of such series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of the same series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided, however, that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund. Not
less than 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 in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) and the portion thereof, if any, which is to be
satisfied by delivering or crediting Securities of that series pursuant to
Section 1202 (which Securities will, if not previously delivered, accompany such
certificate) and whether the Company intends to exercise its right to make a
permitted optional sinking fund payment with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. In the case of the
failure of the
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Company to deliver such certificate, the sinking fund payment due on the next
succeeding sinking fund payment date for that series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of such Securities
subject to a mandatory sinking fund payment without the option to deliver or
credit Securities as provided in Section 1202 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Not more than 60 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 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
Prior to any sinking fund payment date, the Company shall pay
to the Trustee or a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) in cash a sum
equal to any interest that will accrue to the date fixed for redemption of
Securities or portions thereof to be redeemed on such sinking fund payment date
pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund
for any series of Securities, if at any time the amount of cash to be paid into
such sinking fund on the next succeeding sinking fund payment date, together
with any unused balance of any preceding sinking fund payment or payments for
such series, does not exceed in the aggregate $100,000, the Trustee, unless
requested by the Company, shall not give the next succeeding notice of the
redemption of Securities of such series through the operation of the sinking
fund. Any such unused balance of moneys deposited in such sinking fund shall be
added to the sinking fund payment for such series to be made in cash on the next
succeeding sinking fund payment date or, at the request of the Company, shall be
applied at any time or from time to time to the purchase of Securities of such
series, by public or private purchase, in the open market or otherwise, at a
purchase price for such Securities (excluding accrued interest and brokerage
commissions, for which the Trustee or any Paying Agent will be reimbursed by the
Company) not in excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
Section 1301. Applicability of Article. Repayment of Securities
of any series before their Stated Maturity at the option of Holders thereof
shall be made in accordance with the terms of such Securities and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1302. Repayment of Securities. Securities of any
series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be
repaid at a price equal to the principal amount thereof, together with interest,
if any, thereon accrued to the Repayment Date specified in or pursuant to the
terms of such Securities. The Company covenants that on or before the Repayment
Date it
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will deposit with the Trustee or with a Paying Agent (or, if the Company
is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the principal) of
and (except if the Repayment Date shall be an Interest Payment Date) accrued
interest, if any, on, all the Securities or portions thereof, as the case may
be, to be repaid on such date.
Section 1303. Exercise of Option. Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Securities. To be repaid
at the option of the Holder, any Security so providing for such repayment, with
the "Option to Elect Repayment" form on the reverse of such Security duly
completed by the Holder (or by the Holder's attorney duly authorized in
writing), must be received by the Company at the Place of Payment therefor
specified in the terms of such Security (or at such other place or places or
which the Company shall from time to time notify the Holders of such Securities)
not earlier than 45 days nor later than 30 days prior to the Repayment Date. If
less than the entire principal amount of such Security is to be repaid in
accordance with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denomination for Securities
of such series, and the denomination or denominations of the Security or
Securities to be issued to the Holder for the portion of the principal amount of
such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
Section 1304. When Securities Presented for Repayment Become
Due and Payable. If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable to the Holders of such Securities,
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or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there 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 as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid after surrender thereof on the repayment date,
such principal amount (together with interest, if any, thereon accrued to such
Repayment Date) shall, until paid, bear interest from the Repayment Date at the
rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
Section 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Company's Option to Effect Defeasance or Covenant
Defeasance. Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the provisions of this Article Fourteen shall apply to
each series of Securities, and the Company may, at its option, effect defeasance
of the Securities of or within a series under Section 1402, or covenant
defeasance of or within a series under Section 1403 in accordance with the terms
of such Securities and in accordance with this Article.
Section 1402. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities and
any related coupons on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by
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such Outstanding Securities and any related coupons, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 1405 and the other
Sections of this Indenture referred to in (A) and (B) below, and to have
satisfied all its other obligations under such Securities and any related
coupons and this Indenture insofar as such Securities and any related coupons
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Outstanding Securities and any related coupons to receive,
solely from the trust fund described in Section 1404 and as more fully set forth
in such Section, payments in respect of the principal of (and premium, if any)
and interest, if any, on such Securities and any related coupons when such
payments are due, (B) the Company's obligations with respect to such Securities
under Sections 304, 305, 306, 1002 and 1003 and with respect to the payment of
Additional Amounts, if any, on such Securities as contemplated by Section 1005,
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (D) this Article Fourteen. Subject to compliance with this Article Fourteen,
the Company may exercise its option under this Section 1402 notwithstanding the
prior exercise of its option under Section 1403 with respect to such Securities
and any related coupons.
Section 1403. Covenant Defeasance. Upon the Company's exercise
of the above option applicable to this Section with respect to any Securities of
or within a series, the Company shall be released from its obligations under
Sections 1006 through 1008, and, if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such Outstanding
Securities and any related coupons on and after the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "covenant defeasance"), and
such Securities and any related coupons shall thereafter be deemed not to be
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Outstanding Securities and any related coupons, 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 covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
reference in any such covenant to any other provision herein, in the securities
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 501(4) or Section 501(7) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities and any related coupons shall be unaffected
thereby.
Section 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 1402 or
Section 1403 to any Outstanding Securities of or within a series and any related
coupons:
(1) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any related coupons, (A) an amount (in
such Currency in which such Securities and any
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related coupons are then specified as payable at Stated Maturity), or
(B) Government Obligations applicable to such Securities (determined on
the basis of the Currency in which such Securities are then specified
as payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment of principal of and premium, if any, and interest, if any,
under such Securities and any related coupons, money in an amount, or
(C) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (or other
qualifying trustee), to pay and discharge, and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge, (i)
the principal of (and premium, if any) and interest, if any, on such
Outstanding Securities and any related coupons on the Stated Maturity
(or Redemption Date, if applicable) of such principal (and premium, if
any) or installment of interest, if any and (ii) any mandatory sinking
fund payments or analogous payments applicable to such Outstanding
Securities and any related coupons on the day on which such payments
are due and payable in accordance with the terms of this Indenture and
of such Securities and any related coupons; provided that the Trustee
(or other qualifying trustee) shall have been irrevocably instructed to
apply such money or the proceeds of such Government Obligations to said
payments with respect to such Securities and any related coupons.
Before such a deposit, the Company may give to the Trustee (or other
qualifying trustee), in accordance with Section 1102 hereof, a notice
of its election to redeem all or any portion of such Outstanding
Securities at a future date in accordance with the terms of the
Securities of such series and Article Eleven hereof, which notice shall
be irrevocable. Such irrevocable redemption notice, if given, shall be
given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such
Securities or any related coupons shall have occurred and be continuing
on the date of such deposit or, insofar as Section 501(5) are
concerned, at any time during the period ending on the 91st day after
the date of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound.
(4) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the
date of execution of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any related coupons will not recognize
income, gain or loss for federal income tax purposes as a result of
such defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred.
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(5) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Outstanding Securities and any
related coupons will not recognize income, gain or loss for federal
income tax purposes as a result of such covenant defeasance and will be
subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant
defeasance had not occurred.
(6) Notwithstanding any other provisions of this Section,
such defeasance or covenant defeasance shall be effected in compliance
with any additional or substitute terms, conditions or limitations in
connection therewith pursuant to Section 301.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1402 or the covenant defeasance under Section 1403 (as
the case may be) have been complied with.
Section 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions. Subject to the
provisions of the last paragraph of Section 1003, all money and
Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this
Section 1405, the "Trustee") pursuant to Section 1404 in respect of
such Outstanding Securities and any related coupons shall be held in
trust and applied by the Trustee (or other qualifying trustee), in
accordance with the provisions of such Securities and any related
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 (or other qualifying trustee) may determine, to the
Holders of such Securities and any related coupons of all sums due and
to become due thereon in respect of principal (and if any) and
interest, if any, but such money need not be segregated from other
funds premium, except to the extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Section 1404(1) has
been made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 312(b) or the terms of
such Security to receive payment in a Currency other than that in which the
deposit pursuant to Section 1404(1) has been made in respect of such Security,
or (b) a Conversion Event occurs as contemplated in Section 312(d) or 312(e) or
by the terms of any Security in respect of which the deposit pursuant to Section
1404(1) has been made, the indebtedness represented by such Security and any
related coupons shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as they become due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such currency in effect on the third Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
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The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities and any
related coupons.
Anything in this Article Fourteen to the contrary
notwithstanding, the Trustee (or other qualifying trustee) shall deliver or pay
to the Company from time to time upon Company Request any money or Government
Obligations (or other property and any proceeds therefrom) held by it as
provided in Section 1404 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee (or other qualifying trustee), are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance, as applicable, in accordance with
this Article.
Section 1406. Reinstatement. If the Trustee (or other
qualifying trustee) or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and such Securities and any related coupons shall be revived
and reinstated as though no deposit had occurred pursuant to Section
1402 or 1403, as the case may be, until such time as the Trustee (or
other qualifying trustee) or Paying Agent is permitted to apply all
such money in accordance with Section 1405; provided, however, that if
the Company makes any payment of principal of (or premium, if any) or
interest, if any, on any such Security or any related coupon following
the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities and any related coupons
to receive such payment from the money held by the Trustee (or other
qualifying trustee) or Paying Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called. If
Securities of a series are issuable as Bearer Securities, a meeting of Holders
of Securities of such series may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
Section 1502. Call, Notice and Place of Meetings. The Trustee
may at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 1501, to be held at such time and at such place in
the City of 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 for in Section 106, not
less than 21 nor more than 180 days prior to the date fixed for the meeting.
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Section 1503. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series or
(2) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Person entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
Section 1504. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that, if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 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 1502, 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 any adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting
adjourned for lack of a quorum the Persons entitled to vote 25% in principal
amount of the Outstanding Securities at the time shall constitute a quorum for
the taking of any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of such series; provided, however, that, except as limited by the
proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of not less than such specified percentage in
principal amount of the Outstanding Securities of such series.
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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.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(1) there shall be no minimum quorum requirement for such
meeting; and
(2) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given
or taken under this Indenture.
Section 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as its shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting. 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
Outstanding Securities of such series held or represented by him (determined as
specified in the definition of "Outstanding" in Section 101); 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.
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(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Securities of any series shall be
prepared by the Secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one 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 SIXTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1601. Indenture and Securities Solely Corporate
Obligations. No recourse for the payment of the principal of or any premium or
interest on any Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in this Indenture or in any supplemental indenture, or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or any successor corporation,
either directly or through the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the
Securities.
ARTICLE SEVENTEEN
SUBORDINATION OF SECURITIES
Section 1701. Applicability of Article; Agreement to
Subordinate. In the event a series of Securities is designated as subordinated
pursuant to Section 301 ("Subordinated Securities") and except as otherwise
provided in a supplemental indenture or pursuant to Section 301, the Company,
for itself, its successors and assigns, covenants and agrees, and each holder of
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Subordinated Securities by his acceptance thereof, likewise covenants and
agrees, that the payment of the principal of (and premium, if any) and interest
on (including interest accruing on or after the filing of, or which would have
accrued but for the filing of, any petition in bankruptcy or for reorganization
relating to such Person whether or not post-filing interest is allowed in such
proceeding), and all other amounts owed in respect of, each and all of the
Subordinated Securities is hereby expressly subordinated, to the extent and in
the manner hereinafter set forth, in right of payment to the prior payment in
full in cash of all Senior Indebtedness (whether outstanding on the date hereof
or hereafter created, incurred, assumed or guaranteed).
Section 1702. Securities Subordinated in any Proceedings.Upon
any Distribution in any Proceedings,
(1) any Distribution to which the holders of any Subordinated
Securities are entitled shall be paid directly to the holders of Senior
Indebtedness to the extent necessary to make payment in full of all principal of
(and premium, if any) and interest on, and all other amounts owed in respect of,
Senior Indebtedness remaining unpaid after giving effect to all other
Distributions to or for the benefit of the holders of Senior Indebtedness
(except that the provisions of this Section 1702(1) shall not apply to amounts
subject to the lien of the Trustee pursuant to Section 606 hereof, which amounts
shall be paid directly to the Trustee); and
(2) in the event that any Distribution is received by the
Trustee before all principal of (and premium, if any) and interest on, and all
other amounts owed in respect of, Senior Indebtedness is paid in full, such
Distribution shall be applied by the Trustee in accordance with this Article
Seventeen.
Section 1703. No Payment on Securities in Certain
Circumstances. The Company shall not, directly or indirectly (other than in
common stock of the Company) pay any principal of, or interest on, or any other
amount on or in respect of the Subordinated Securities and coupons, if any,
appertaining thereto, or redeem, defease or otherwise acquire any of the
Subordinated Securities (i) after a Senior Indebtedness Payment Default, unless
and until such Senior Indebtedness Payment Default has been cured, waived, or
otherwise has ceased to exist, or (ii) upon the acceleration of the Subordinated
Securities so long as the Company has any Senior Indebtedness outstanding.
During a Payment Blockage Period, no payment of any principal
of, or interest on, or any other amount on or in respect of the Subordinated
Securities and coupons, if any, appertaining thereto, may be made, directly or
indirectly, by the Company nor shall the Company redeem, defease or otherwise
acquire any of the Subordinated Securities. Unless the Senior Indebtedness in
respect of which the Senior Indebtedness Default Notice has been given has been
declared due and payable in its entirety within the Payment Blockage Period, at
the end of the Payment Blockage Period, the Company shall pay all sums not paid
to the holders of Subordinated Securities during the Payment Blockage Period and
resume all other payments on the Subordinated Securities as and when due.
Defaulted Interest shall be paid in accordance with Section 307. Any number of
Senior Indebtedness Default Notices may given; provided, however, that as to any
issue of Senior Indebtedness (i) not more than one Senior Indebtedness Default
Notice shall be given within a period of any 366 consecutive days, and (ii) no
specific
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act, omission, or condition that gave rise to a default that existed
upon the date of such Senior Indebtedness Default Notice (whether or not such
default applies to the same issue of Senior Indebtedness) shall be made the
basis for the commencement of any other Payment Blockage Period.
If any Distribution, payment or deposit to redeem, defease or
acquire any of the Subordinated Securities shall have been received by the
Trustee at a time when such Distribution was prohibited by the provisions of
this Section 1703, then, unless such Distribution is no longer prohibited by
this Section 1703, such Distribution shall be received and applied by the
Trustee for the benefit of the holders of Senior Indebtedness, and shall be paid
or delivered by the Trustee to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued for application to the payment of all Senior Indebtedness.
Section 1704. Subrogation. The holders of Subordinated
Securities shall not have any subrogation or other rights of recourse to any
security in respect of any Senior Indebtedness until such time as all principal
of (and premium, if any) and interest on, and all other amounts owed in respect
of, Senior Indebtedness shall have been paid in full. Upon the payment in full
of all principal of (and premium, if any) and interest on, and all other amounts
owed in respect of, Senior Indebtedness, the holders of Subordinated Securities
shall be subrogated to the rights of the holders of Senior Indebtedness to
receive Distributions applicable to Senior Indebtedness until all amounts owing
in respect of the Subordinated Securities shall be so paid. No Distributions to
the holders of Senior Indebtedness which otherwise would have been made to the
holders of Subordinated Securities shall, as between the Company and the holders
of the Subordinated Securities, be deemed to be payment by the Company to or on
account of Senior Indebtedness.
If any Distribution to which the holders of Subordinated
Securities would otherwise have been entitled shall have been applied pursuant
to the provisions of this Article to the payment of Senior Indebtedness, then
the holders of Subordinated Securities shall be entitled to receive from the
holders of such Senior Indebtedness any Distributions received by such holders
of Senior Indebtedness in excess of the amount sufficient to pay all amounts
payable on such Senior Indebtedness to the extent provided herein.
Section 1705. Obligations of the Company Unconditional. This
Article defines the relative rights of the holders of Subordinated Securities
and holders of Senior Indebtedness. Nothing in this Article or elsewhere in this
Indenture or in the Subordinated Securities is intended to or shall impair, as
between the Company and the holders of Subordinated Securities, the obligation
of the Company, which is absolute and unconditional, to pay to the holders of
Subordinated Securities the principal of, and interest or premium, if any, on,
the Subordinated Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the holders of Subordinated Securities and creditors of the Company,
other than the holders of Senior Indebtedness, nor shall anything herein or in
the Subordinated Securities prevent the Trustee or any holder of Subordinated
Securities from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article Seventeen, of the holders of Senior
90
Indebtedness in respect of any Distribution received upon the exercise of any
such remedy. If the Company fails because of this Article to pay principal of,
or interest or premium, if any, on, or any other amount owed in respect of a
Subordinated Security on the due date, the failure is still a Default. Upon any
Distribution, the Trustee and the holders of Subordinated Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which the Proceeding is pending, or a certificate of the
liquidating trustee or agent or other Person making any Distribution for the
purpose of ascertaining the Persons entitled to participate in such
Distribution, the holders of Senior Indebtedness 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
Seventeen.
Section 1706. Trustee and Paying Agents Entitled to Assume
Payments Not Prohibited In Absence of Notice. The Trustee shall not at any time
be charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee, unless and until an officer of the
Trust shall have received, no later than three (3) Business Days prior to such
payment, written notice thereof from the Company or from one or more holders of
Senior Indebtedness and, prior to the receipt of any such written notice, the
Trustee, shall be entitled in all respects conclusively to presume that no such
fact exists. Unless the Trustee shall have received the notice provided for in
the preceding sentence, the Trustee shall have full power and authority to
receive such payment and to apply the same to the purpose for which it was
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date. The foregoing shall not apply to any
Affiliate of the Company acting as Paying Agent.
Section 1707. Defeasance. Amounts deposited in trust with the
Trustee pursuant to and in accordance with Article Fourteen and not prohibited
to be deposited under Section 1703 when deposited shall not be subject to this
Article Seventeen.
Section 1708. Subordination Rights Not Impaired by Acts or
Omissions of the Company or Holders of Senior Indebtedness. No right of any
holder of any Senior Indebtedness established in this Article Seventeen shall at
any time or 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 failure by the Company to comply with the terms of this
Indenture.
Section 1709. Right to Hold Senior Indebtedness. The Trustee
is entitled to all of the rights set forth in this Article Seventeen in respect
of any Senior Indebtedness at any time held by it to the same extent as any
other holder of Senior Indebtedness.
Section 1710. No Fiduciary Duty of Trustee or Securityholders
to Holders of Senior Indebtedness. Neither the Trustee nor the holders of
Subordinated Securities owes any fiduciary duty to the holders of Senior
Indebtedness. Neither the Trustee nor the holders of Subordinated Securities
shall be liable to any holder of Senior Indebtedness in the event that the
Trustee, acting in good faith, shall pay over or distribute to the holders of
Subordinated Securities, the Company, or any other Person, any property to which
any holders of Senior Indebtedness are entitled by virtue of this Article or
otherwise. Nothing contained in this Section 1710 shall affect the obligation of
any other such Person to hold such payment for the benefit of, and to pay such
payment over to, the holders of Senior Indebtedness.
91
Section 1711. Distribution to Holders of Senior Indebtedness.
Any Distribution otherwise payable to the holders of the Subordinated Securities
made to holders of Senior Indebtedness pursuant to this Article shall be made to
such holders of Senior Indebtedness ratably according to the respective amount
of Senior Indebtedness held by each.
Section 1712. Trustee's Rights to Compensation, Reimbursement
of Expenses and Indemnification. The Trustee's rights to compensation,
reimbursement of expenses and indemnification under Section 606 is not
subordinated.
Section 1713. Exception for Certain Distributions. The rights
of holders of Senior Indebtedness under this Article do not extend (a) to any
Distribution to the extent applied to the Trustee's rights to compensation,
reimbursement of expenses or indemnification or (b) to (i) securities which are
subordinated to the securities distributed to the holders of Senior Indebtedness
on terms no less favorable to the holders of Senior Indebtedness than the
provisions of this Article, or (ii) Distributions under any plan approved by the
court in any Proceeding.
Section 1714. Appointment of the Trustee by Holders. Each
holder by his acceptance of a Subordinated Security authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination as provided in this Article
Seventeen and appoints the Trustee as attorney-in-fact for any and all such
purposes, including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or otherwise)
tending towards liquidation of the business and assets of the Company, the
immediate filing of a claim for the unpaid balance of such holder's Subordinated
Securities in the form required in said proceedings and causing said claim to be
approved.
Section 1715. Modifications of Terms of Senior Indebtedness.
Any renewal or extension of the time of payment of any Senior Indebtedness or
the exercise by the holders of Senior Indebtedness of any of their rights under
any instrument creating or evidencing Senior Indebtedness, including, without
limitation, the waiver of default thereunder, may be made or done all without
notice to or assent from the holders of the Subordinated Securities or the
Trustee. No compromise, alteration, amendment, modification, extension, renewal
or other change of, or waiver, consent or other action in respect of, any
liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or
not such release is in accordance with the provisions of any applicable
document, shall in any way alter or affect any of the provisions of this Article
Seventeen or of the Subordinated Securities relating to the subordination
thereof.
Section 1716. Certain Definitions.
For purposes of this Article Seventeen,
"Capitalized Lease" means any lease the obligation for Rentals
with respect to which is required to be capitalized on a balance sheet of the
lessee in accordance with generally accepted accounting principles.
92
"Capitalized Rentals" of any Person means as of the date of
any determination thereof the amount at which the aggregate Rentals due and to
become due under all Capitalized Leases under which such Person is a lessee
would be reflected as a liability on a balance sheet of such Person in
accordance with generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participation or other
equivalents of or interests in (however designated) equity of such Person,
including any preferred stock, but excluding any debt securities convertible
into such equity.
"Change of Control" means the occurrence of any of the
following after the original issuance of any of series of Securities:
(1) the acquisition by any Person of beneficial ownership,
directly or indirectly, through a purchase, merger or other acquisition
transaction or series of transactions, of shares of Capital Stock of the Company
entitling such person to exercise 50% or more of the total voting power of all
shares of Capital Stock of the Company entitled to vote generally in elections
of directors, other than any such acquisition by the Company, any subsidiary of
the Company or any employee benefit plan of the Company; or
(2) any consolidation or merger of the Company with or into
any other Person, any merger of another Person into the Company, or any
conveyance, transfer, sale, lease or other disposition of all or substantially
all of the properties and assets of the Company to another Person, other than
(a) any such transaction (x) that does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Capital Stock of
the Company and (y) pursuant to which holders of Capital Stock of the Company
immediately prior to such transaction have the entitlement to exercise, directly
or indirectly, 50% or more of the total voting power of all shares of Capital
Stock of the Company entitled to vote generally in the election of directors of
the continuing or surviving person immediately after such transaction and (b)
any merger which is effected solely to change the jurisdiction of incorporation
of the Company and results in a reclassification, conversion or exchange of
outstanding shares of Common Stock solely into shares of common stock of the
surviving entity.
Beneficial ownership shall be determined in accordance with
Rule 13d-3 promulgated by the Securities and Exchange Commission under the
Exchange Act. As used in this definition, the term "Person" shall include any
syndicate or group which would be deemed to be a "person" under Section 13(d)(3)
of the Exchange Act.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement designed
to protect such Person against fluctuations in currency values.
"Disqualified Stock" means, with respect to any Person, that
portion of any Capital Stock which by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable at the option of
the holder) or upon the happening of any event:
(1) matures (excluding any maturity as a result of an optional
redemption by the issuer thereof) or is mandatorily redeemable (other than
redeemable only for Capital Stock of
93
such Person which is not itself Disqualified Stock) pursuant to a sinking fund
obligation or otherwise;
(2) is convertible or exchangeable at the option of the holder
for Indebtedness or Disqualified Stock; or
(3) is mandatorily redeemable or must be purchased upon the
occurrence of certain events or otherwise, in whole or in part;
in each case on or prior to the date that is 91 days after the
Stated Maturity of the Securities; provided, however, that if such Capital Stock
is issued to any employee or to any plan for the benefit of employees of the
Company or its Subsidiaries or by any such plan to such employees, such Capital
Stock shall not constitute Disqualified Stock solely because it may be required
to be repurchased by the Company in order to satisfy obligations as a result of
such employee's death or disability; and provided, further, however, that any
Capital Stock that would not constitute Disqualified Stock but for provisions
thereof giving holders thereof the right to require such Person to purchase or
redeem such Capital Stock upon the occurrence of an "asset sale" or "Change of
Control" occurring prior to the date that is 91 days after the Stated Maturity
of the Securities shall not constitute Disqualified Stock if the "asset sale" or
"Change of Control" provisions applicable to such Capital Stock are not more
favorable to the holders of such Capital Stock than the terms applicable to the
Securities in Section 1007 of this Indenture.
The amount of any Disqualified Stock that does not have a
fixed redemption, repayment or repurchase price shall be calculated in
accordance with the terms of such Disqualified Stock as if such Disqualified
Stock were redeemed, repaid or repurchased on any date on which the amount of
such Disqualified Stock is to be determined pursuant to this Indenture;
provided, however, that if such Disqualified Stock could not be required to be
redeemed, repaid or repurchased at the time of such determination, the
redemption, repayment or repurchase price shall be the book value of such
Disqualified Stock as reflected in the most recent financial statements of such
Person.
"Distribution" in any Proceeding means any payment or
distribution of assets or securities of the Company of any kind or character
from any source, whether in cash, securities or other property made by the
Company, custodian, liquidating trustee or agent or any other person whether
pursuant to a plan or otherwise.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Agreement or Currency Agreement or
similar agreement.
"Indebtedness" means, with respect to any Person on any date
of determination (without duplication):
(1) the principal in respect of (A) indebtedness of such
Person for borrowed money and (B) indebtedness evidenced by notes, debentures,
bonds or other similar instruments for the payment of which such Person is
responsible or liable, including, in each case, any premium on such indebtedness
to the extent such premium has become due and payable;
94
(2) any Capitalized Rentals of such Person and all
Attributable Debt in respect of Sale and Leaseback Transactions entered into by
such Person;
(3) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations of such
Person and all obligations of such Person under any title retention agreement
(but excluding trade accounts payable arising in the ordinary course of
business);
(4) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, bankers' acceptance or similar credit
transaction (other than obligations with respect to letters of credit securing
obligations (other than obligations described in clauses (1) through (3) above)
entered into in the ordinary course of business of such Person to the extent
such letters of credit are not drawn upon or, if and to the extent drawn upon,
such drawing is reimbursed no later than the tenth Business Day following
payment on the letter of credit);
(5) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified Stock of
such Person or, with respect to any preferred stock of any Subsidiary of such
Person, the principal amount of such preferred stock to be determined in
accordance with this Indenture (but excluding, in each case, any accrued
dividends);
(6) all obligations of the type referred to in clauses (1)
through (5) of other Persons and all dividends of other Persons for the payment
of which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
guarantee;
(7) all obligations of the type referred to in clauses (1)
through (6) of other Persons secured by any lien on any property or asset of
such Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the value of such
property or assets and the amount of the obligation so secured; and
(8) to the extent not otherwise included in this
definition, Hedging Obligations of such Person.
The amount of Indebtedness of any Person at any date shall be
the outstanding balance at such date of all unconditional obligations as
described above and the maximum liability, upon the occurrence of the
contingency giving rise to the obligation, of any contingent obligations at such
date; provided, however, that in the case of Indebtedness sold at a discount,
the amount of such Indebtedness at any time will be the accreted value thereof
at such time.
"Interest Rate Agreement" means the obligations of any Person
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements to protect such Person against
fluctuations in interest rates.
95
"Payment Blockage Period" means the period beginning when a
Senior Indebtedness Default Notice is given to the Company and the Trustee and
ending (a) when the default identified in the Senior Indebtedness Default Notice
is cured, waived or otherwise ceases to exist or (b) after 179 days, whichever
occurs first.
"Proceeding" means a liquidation, dissolution, bankruptcy,
insolvency, reorganization, receivership or similar proceeding under bankruptcy
law, an assignment for the benefit of creditors, any marshalling of assets or
liabilities, or winding up or dissolution, but shall not include any transaction
permitted by and made in compliance with Article Eight.
"Rentals" means, as of the date of any determination thereof,
all rent payable by the lessee under a lease of any property or assets, after
excluding amounts required to be paid on account of maintenance and repairs,
insurance, taxes, assessments, water rates and similar charges. Rents under any
"percentage leases" shall be computed solely on the basis of minimum rents, if
any, required to be paid by the lessee regardless of sales volume or gross
revenues. In the case of any lease which is terminable by the lessee upon the
payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
"Senior Indebtedness" means with respect to any Person:
(1) Indebtedness of such Person, whether outstanding on or
following the date hereof; and
(2) accrued and unpaid interest (including interest accruing
on or after the filing of, or which would have accrued but for the filing of,
any petition in bankruptcy or for reorganization relating to such Person whether
or not post-filing interest is allowed in such proceeding) and all other amounts
owing in respect of (A) indebtedness of such Person for borrowed money, (B)
Hedging Obligations and (C) indebtedness evidenced by securities, debentures,
bonds or other similar instruments for the payment of which such Person is
responsible or liable
unless, in the case of clauses (1) and (2), in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
expressly provided that such obligations are subordinate or pari passu in right
of payment to the applicable securities or the guaranty of such Person, as the
case may be; provided, however, that Senior Indebtedness shall not include:
(1) any Subordinated Securities;
(2) any obligation of such Person to any Subsidiary or
Affiliate of the Company;
(3) any liability for Federal, state, local or other taxes
owed or owing by such Person;
(4) any accounts payable or other liability to trade creditors
arising in the ordinary course of business (including guarantees thereof or
instruments evidencing such liabilities);
96
(5) any Indebtedness of such Person (and any accrued and
unpaid interest in respect thereof) which is subordinate or junior in any
respect to (whether by operation of law, or otherwise) any other Indebtedness or
other obligation of such Person;
(6) that portion of any Indebtedness which at the time of
incurrence is created, incurred, assumed or guaranteed in violation of this
Indenture; or
(7) any Disqualified Stock.
"Senior Indebtedness Default Notice" means any notice of a
default (other than a Senior Indebtedness Payment Default) that permits the
holders of any Senior Indebtedness to declare such Senior Indebtedness due and
payable.
"Senior Indebtedness Payment Default" means a default in the
payment of any principal of, or interest or premium, if any, with respect to any
Senior Indebtedness.
This Indenture 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 Indenture.
[SIGNATURE PAGE FOLLOWS]
97
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed all as of the day and year first above written.
Schering-Plough Corporation
By: _______________________
Name:
Title:
The Bank of New York
By: _______________________
Name:
Title:
S-1
EXHIBIT A
FORMS OF CERTIFICATION
A-1
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not residents of the United States, domestic
partnerships, domestic corporations or any citizens or estate or trust the
income of which is subject to United States federal income taxation regardless
of its source ("United States persons(s)"), (ii) are owned by United States
person(s) that are (a) foreign branches of United States financial institutions
(financial institutions, as defined in United States Treasury Regulations
Section 2.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such United
States financial institution hereby agrees, on its own behalf or through its
agent, that you may advise Schering-Plough Corporation or its agent that such
financial institution will comply with the requirements of Section 1650(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certificate excepts and does not relate to [U.S.$]
_____________ of such interest in the above-captioned Securities in respect of
which we are not able to certify and as to which we understand an exchange for
an interest in a permanent global Security or an exchange
A-1-1
for and delivery of definitive Securities (or, if relevant, collection of any
interest) cannot be made until we do so certify.
We understand that this certificate may be required in
connection with certain tax laws and regulations in the United States. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings.
Dated:
[To be dated no earlier than the 10th
day prior to (i) the Exchange Date or (ii)
the relevant Interest Payment Date occurring
prior to the Exchange Date, as
applicable]
[Name of Person Making Certification]
(AUTHORIZED SIGNATORY)
--------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE, TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify that based solely on written certifications
that we have received in writing, by tested telex or by electronic transmission
from each of the persons appearing in our records as persons entitled to a
portion of the principal amount set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof, [U.S.$]
______________ principal amount of the above-captioned Securities (i) is owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States person(s)"), (ii) is owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)
are herein referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise
Schering-Plough Corporation or its agent that such financial institution will
comply with the requirements of Section 1650(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(1)(D)(7)) and, to the further effect, that
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations
A-2-1
with respect to any portion of the part submitted herewith for exchange (or, if
relevant, collection of any interest) are no longer true and cannot be relied
upon as of the date hereof.
We understand that this certification is required in
connection with certain tax laws and regulations in the United States. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings.
Dated:
[To be dated no earlier than the
Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as
applicable]
[XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, BRUSSELS OFFICE, as
Operator of the Euroclear System]
[Clearstream]
By________________________________
A-2-2
EXHIBIT B
CUSIP NO. [___]
No. [___]
SCHERING-PLOUGH CORPORATION
FORM OF
[_________]% GLOBAL NOTE DUE [_________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX
XXXX) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND SUCH CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN. UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN
PART FOR NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF
TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR
ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR.
SCHERING-PLOUGH CORPORATION, a New Jersey corporation (herein
referred to as the "Company," which term includes any successor corporation
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the principal sum of $[__]
on [___] (the "Maturity Date") and to pay interest thereon from [____] or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on [___] and [___] in each year (each, an "Interest
Payment Date"), commencing [___], at [___]% per annum until the principal hereof
is paid or duly provided for.
Any payment of principal or interest required to be made on a
day that is not a Business Day need not be made on such day, but may be made on
the next succeeding Business Day with the same force and effect as if made on
such day and no interest shall accrue as a result of such delayed payment.
Interest payable on each Interest Payment Date will include interest accrued
from and including [___] or from and including the most recent Interest Payment
Date to
B-1
which interest has been paid or duly provided for, as the case may be, to but
excluding such Interest Payment Date.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid to
the person (the "Holder") in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on the __th day (whether or
not a Business Day) preceding such Interest Payment Date (a "Regular Record
Date"). Any such interest not so punctually paid or duly provided for
("Defaulted Interest") will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the person in whose name this Note
(or one or more Predecessor Securities) is registered at the close of business
on a special record date (the "Special Record Date") for the payment of such
Defaulted Interest to be fixed by the Trustee (referred to herein), notice
whereof shall be given to the Holder of this Note not more than 15 nor less than
ten days prior to such Special Record Date, or may be paid at any time in any
other lawful manner, all as more fully provided in the Indenture.
For purposes of this Note, "Business Day" means any day that
is not a Saturday or Sunday and that, in The City of New York, is not a day on
which banking institutions are authorized or obligated by law or executive order
to close.
Payment of the principal of this Note on the Maturity Date
will be made against presentation of this Note at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, the City of New
York, in such coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts. So long as
this Note remains in book-entry form, all payments of principal and interest
will be made by the Company in immediately available funds.
General. This Note is one of a duly authorized issue of
securities (herein called the "Securities") of the Company, issued and to be
issued under an indenture, dated as of [___], as it may be supplemented from
time to time (herein called the "Indenture"), between the Company and The Bank
of New York, as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture with respect to a series of which this
Note is a part), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. The Securities may be issued in one or
more series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption provisions (if any), may be
subject to different sinking, purchase or analogous funds (if any), may be
subject to different covenants and Events of Default and may otherwise vary as
provided or permitted in the Indenture. This Note is one of a duly authorized
series of Securities designated as "[__]% Global Notes due [__]" (collectively,
the "Notes").
The Notes are initially limited to $[ ] aggregate principal
amount. The Company may, without the consent of the Holder hereof, create and
issue additional securities ranking pari passu with the Notes in all respects
and so that such additional securities shall be consolidated
B-2
and form a single series having the same terms as to status, redemption or
otherwise as the Notes initially issued. No additional Notes may be issued if an
Event of Default has occurred.
Events of Default. If an Event of Default with respect to the
Notes shall have occurred and be continuing, the principal of the Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture.
Modification and Waivers, Obligations of the Company Absolute.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series. Such
amendment may be effected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of not less than a majority in aggregate
principal amount of all Securities issued under the Indenture at the time
Outstanding and affected thereby. The Indenture also contains provisions
permitting the Holders of not less than a majority in aggregate principal amount
of the Securities at the time Outstanding, on behalf of the Holders of all
Outstanding Securities, to waive compliance by the Company with certain
provisions of the Indenture. Furthermore, provisions in the Indenture permit the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of individual series to waive on behalf of all of the
Holders of Securities of such individual series certain past defaults under the
Indenture and their consequences. Any such consent or waiver shall be conclusive
and binding upon the Holder of this Note and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate and in the coin or currency herein
prescribed.
Defeasance and Covenant Defeasance. The Indenture contains
provisions for defeasance at any time of (a) the entire indebtedness of the
Company on this Note and (b) certain restrictive covenants and the related
defaults and Events of Default, upon compliance by the Company with certain
conditions set forth therein, which provisions apply to this Note.
Registration of Transfer or Exchange. As provided in the
Indenture and subject to certain limitations herein and therein set forth, the
transfer of this Note is registrable in the Security Register upon surrender of
this Note for registration of transfer at the office or agency of the Company in
any place where the principal of and interest on this Note are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain
limitations herein and therein set forth, the Notes are exchangeable for a like
aggregate principal amount of Notes of different authorized denominations, as
requested by the Holders surrendering the same.
B-3
This Note is a Global Security. If the Depository is at any
time unwilling, unable or ineligible to continue as depository and a successor
depository is not appointed by the Company within 90 days or an Event of Default
under the Indenture has occurred and is continuing, the Company will issue Notes
in certificated form in exchange for each Global Security. In addition, the
Company may at any time determine not to have Notes represented by a Global
Security and, in such event, will issue Notes in certificated form in exchange
in whole for the Global Security representing such Note. In any such instance,
an owner of a beneficial interest in a Global Security will be entitled to
physical delivery in certificated form of Notes equal in principal amount to
such beneficial interest and to have such Notes registered in its name. Notes so
issued in certificated form will be issued in denominations of $1,000 or any
amount in excess thereof which is an integral multiple of $1,000 and will be
issued in registered form only, without coupons.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Holder as the owner hereof for all purposes, whether or not this
Note be overdue, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
Defined Terms. All terms used in this Note which are defined
in the Indenture and are not otherwise defined herein shall have the meanings
assigned to them in the Indenture.
Governing Law. This Note shall be governed by and construed in
accordance with the law of the State of New York.
Notices. Notices to Holders of the Notes may be made by first
class mail, postage prepaid, to the addresses that appear on the register
maintained by the Security Registrar or by guaranteed overnight courier or by
facsimile transmission (receipt confirmed by facsimile transaction receipt)
followed by overnight courier. [So long as the Notes are listed on the
Luxembourg Stock Exchange, notices will also be made by publication in an
authorized newspaper in Luxembourg which is expected to be the Luxemburger
Wort.] Any notice will be deemed to have been given on the date of publication
or, if published more than once, on the date of the first publication.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
[SIGNATURE PAGE FOLLOWS]
B-4
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its facsimile corporate seal.
Dated: [______]
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities of the series
designated therein referred to in the
within-mentioned Indenture SCHERING-PLOUGH CORPORATION
[____________],
as Trustee By: _________________________
By: _______________________ Attest: _____________________
Authorized Signatory Secretary
B-5
