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EXHIBIT 4(a)
XEROX CORPORATION
AND
[ ]
TRUSTEE
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INDENTURE
DATED AS OF [ ]
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
PAGE
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SECTION 1.01. Definitions................................... 1
"this Indenture" and certain other terms................ 1
"Act"................................................... 1
"Affiliate"............................................. 1
"Authenticating Agent".................................. 2
"Authorized Newspaper".................................. 2
"Board of Directors".................................... 2
"Board Resolution"...................................... 2
"Business Day".......................................... 2
"Commission"............................................ 2
"Company"............................................... 2
"Company Request" and "Company Order"................... 2
"Consolidated Net Worth"................................ 2
"Coupon Security"....................................... 3
"Debt".................................................. 3
"Defaulted Interest".................................... 3
"Depositary"............................................ 3
"Event of Default"...................................... 3
"Exchange Act".......................................... 3
"Federal Bankruptcy Code"............................... 3
"Fully Registered Security"............................. 3
"Global Security"....................................... 3
"Holder"................................................ 3
"Interest".............................................. 3
"Interest Payment Date"................................. 4
"Maturity".............................................. 4
"Mortgage".............................................. 4
"Officers' Certificate"................................. 4
"Opinion of Counsel".................................... 4
"Original Issue Discount Security"...................... 4
"Outstanding"........................................... 4
"Paying Agent".......................................... 4
"Person"................................................ 5
"Place of Payment"...................................... 5
"Predecessor Security".................................. 5
"Principal Corporate Trust Office"...................... 5
"Redemption Date"....................................... 5
"Redemption Price"...................................... 5
"Registered Coupon Security"............................ 5
"Registered Holder"..................................... 5
"Registered"............................................ 5
"Regular Record Date"................................... 5
"Repayment Date"........................................ 5
"Repayment Price"....................................... 5
"Responsible Officer"................................... 5
"Restricted Subsidiary"................................. 6
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"Securities"................................................... 6
"Securityholder"............................................... 6
"Security Register"............................................ 6
"Security Registrar"........................................... 6
"Special Record Date".......................................... 6
"Stated Maturity".............................................. 6
"Subsidiary"................................................... 6
"Trustee"...................................................... 6
"Trustee Indenture Act" or "TIA"............................... 6
"Unregistered Security"........................................ 6
"Vice President"............................................... 6
"Xerox"........................................................ 6
SECTION 1.02. Compliance Certificates and Opinions................... 6
SECTION 1.03. Form of Documents Delivered to Trustee................. 7
SECTION 1.04. Acts of Securityholders................................ 7
SECTION 1.05. Notices, etc., to Trustee and Company.................. 8
SECTION 1.06. Notices to Securityholders; Waiver..................... 8
SECTION 1.07. Effect of Headings and Table of Contents............... 9
SECTION 1.08. Successors and Assigns................................. 9
SECTION 1.09. Separability Clause.................................... 9
SECTION 1.10. Benefits of Indenture.................................. 9
SECTION 1.11. Legal Holidays......................................... 9
SECTION 1.12. Governing Law.......................................... 9
SECTION 1.13. Trust Indenture Act.................................... 10
SECTION 1.14. Counterparts........................................... 10
SECTION 1.15. Securities Denominated in a Currency Other Than United
States Dollars...................................... 10
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally........................................ 10
SECTION 2.02. Forms of Securities.................................... 10
SECTION 2.03. Form of Trustee's Certificate or Authentication........ 11
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Title and Terms........................................ 11
SECTION 3.02. Denominations.......................................... 12
SECTION 3.03. Execution, Authentication, Delivery and Dating......... 12
SECTION 3.04. Temporary Securities................................... 15
SECTION 3.05. Registration, Registration of Transfer and Exchange.... 15
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities....... 17
SECTION 3.07. Payment of Interest; Interest Rights Preserved......... 18
SECTION 3.08. Persons Deemed Owners.................................. 19
SECTION 3.09. Cancellation........................................... 19
SECTION 3.10. Computation of Interest................................ 19
SECTION 3.11. Compliance with Certain Laws and Regulations........... 19
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ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Applicability of Article.................................................... 20
SECTION 4.02. Election to Redeem; Notice to Trustee....................................... 20
SECTION 4.03. Selection by Trustee of Securities to be Redeemed........................... 20
SECTION 4.04. Notice of Redemption........................................................ 20
SECTION 4.05. Deposit of Redemption Price................................................. 21
SECTION 4.06. Securities Payable on Redemption Date....................................... 21
SECTION 4.07. Securities Redeemed in Part................................................. 22
SECTION 4.08. Provisions With Respect to any Sinking Funds................................ 22
SECTION 4.09. Applicability of Early Repayment Provisions................................. 23
SECTION 4.10. Repayment of Securities..................................................... 23
SECTION 4.11. Exercise of Option.......................................................... 23
SECTION 4.12. When Securities Presented for Repayment Become Due and Payable.............. 23
SECTION 4.13. Securities Repaid in Part................................................... 23
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and Interest; Compliance with Terms........... 24
SECTION 5.02. Maintenance of Office or Agency............................................. 24
SECTION 5.03. Money for Security Payments to be Held in Trust............................. 24
SECTION 5.04. Statement as to Compliance.................................................. 25
SECTION 5.05. Corporate Existence......................................................... 25
SECTION 5.06. Limitation on Liens......................................................... 25
SECTION 5.07. Waiver of Covenants......................................................... 27
ARTICLE SIX
SECURITYHOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.01. Company to Furnish Trustee Names and Addresses of Securityholders.......... 27
SECTION 6.02. Preservation of Information; Communications to Securityholders............. 27
SECTION 6.03. Reports by Trustee......................................................... 28
SECTION 6.04. Reports by Company......................................................... 28
ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default.......................................................... 29
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment......................... 30
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee............ 30
SECTION 7.04. Trustee May File Proofs of Claim........................................... 31
SECTION 7.05. Trustee May Enforce Claims Without Possession of Securities................ 31
SECTION 7.06. Application of Money Collected............................................. 31
SECTION 7.07. Limitation on Suits........................................................ 32
SECTION 7.08. Restoration of Rights and Remedies......................................... 32
SECTION 7.09. Rights and Remedies Cumulative............................................. 32
SECTION 7.10. Delay or Omission Not Waiver............................................... 32
SECTION 7.11. Control by Securityholders................................................. 33
SECTION 7.12. Waiver of Past Defaults.................................................... 33
SECTION 7.13. Waiver of Stay or Extension Laws........................................... 33
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ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Rights of Trustee.................................................. 33
SECTION 8.02. Not Responsible for Recitals or Issuance of Securities..................... 34
SECTION 8.03. May Hold Securities........................................................ 34
SECTION 8.04. Money Held in Trust........................................................ 35
SECTION 8.05. Compensation and Reimbursement............................................. 35
SECTION 8.06. Corporate Trustee Required; Eligibility.................................... 35
SECTION 8.07. Resignation and Removal; Appointment of Successor.......................... 35
SECTION 8.08. Acceptance of Appointment by Successor..................................... 36
SECTION 8.09. Merger, Conversion, Consolidation or Succession to Business of Trustee..... 37
SECTION 8.10. Appointment of Authenticating Agent........................................ 37
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Securityholders................. 38
SECTION 9.02. Supplemental Indentures With Consent of Securityholders.................... 39
SECTION 9.03. Execution of Supplemental Indentures....................................... 39
SECTION 9.04. Effect of Supplemental Indentures.......................................... 40
SECTION 9.05. Conformity with Trust Indenture Act........................................ 40
SECTION 9.06. Reference in Securities to Supplemental Indentures......................... 40
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms....................... 40
SECTION 10.02. Successor Corporation Substituted.......................................... 40
SECTION 10.03. Securities to be Secured in Certain Events................................. 40
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture.................................... 41
SECTION 11.02. Application of Trust Money................................................. 42
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01. Exemption from Individual Liability........................................ 42
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.01. Purposes of Meetings....................................................... 42
SECTION 13.02. Call of Meetings by Trustee................................................ 43
SECTION 13.03. Call of Meetings by Company or Securityholders............................. 43
SECTION 13.04. Qualifications for Voting.................................................. 43
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SECTION 13.05. Quorum; Adjourned Meetings............................ 43
SECTION 13.06. Regulations........................................... 44
SECTION 13.07. Voting Procedure...................................... 44
SECTION 13.08. Written Consent in Lieu of Meetings................... 45
SECTION 13.09. No Delay of Rights by Meeting......................... 45
TESTIMONIUM............................................................ 45
SIGNATURES AND SEALS ................................................. 45
ACKNOWLEDGMENTS ................................................. 46
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THIS INDENTURE is entered into as of , between XEROX CORPORATION, a
corporation organized and existing under the laws of the State of New York
(hereinafter called the "Company"), having its principal executive office at 000
Xxxx Xxxxx Xxxx, X.X. Xxx 0000, Xxxxxxxx, Xxxxxxxxxxx 00000-0000, and , a
(hereinafter called the "Trustee"), having its Principal Corporate Trust
Office on the date hereof at .
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its unsecured
debentures, notes, bonds or other evidences of indebtedness (including
instruments in global, temporary or definitive form), to be issued in one or
more series (hereinafter called the "Securities") as hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, 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 any series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(1) the term "this 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 3.01;
(2) all references in this instrument to designated "Articles",
"Sections " and other subdivi sions are to be designated Articles, Sections
and other subdivisions of this Indenture. 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;
(3) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(4) 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
(5) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date of computation.
"Act" when used with respect to any Securityholder, has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or con trolled by or under direct or indirect common
control with such specified Person. For the purposes of this
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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 correla
tive to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 8.10 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Authorized Newspaper" means a newspaper of general circulation in the
relevant area, printed in the English language and customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays.
Whenever successive weekly publications in an Authorized Newspaper are
authorized hereunder, they may be made (unless otherwise expressly provided
herein) on the same or different days of the week and in the same or different
Authorized Newspapers.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each day which is neither a Saturday, Sunday or other
day on which banking institutions in The City of New York or the pertinent Place
of Payment are authorized or required by law or executive order to be closed,
except as otherwise provided with respect to a particular issue of Securities as
contemplated in Section 3.01.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution and delivery of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until any successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor corporation.
"Company Request" and "Company Order" means, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
President or a Vice President, and by its Treas urer, an Assistant Treasurer,
Controller, an Assistant Controller, Secretary, or an Assistant Secretary, and
delivered to the Trustee or any other Person, as required by this Indenture.
"Consolidated Net Worth" means, at any time, as to a given Person, the sum
of (a) the amounts appearing on the latest consolidated balance sheet of such
Person and its Subsidiaries, prepared in accor dance with generally accepted
accounting principles consistently applied, as
(i) the par or stated value of all outstanding capital stock
(including preferred stock),
(ii) capital paid-in and earned surplus or earnings retained in the
business plus or minus cumulative translation adjustments,
(iii) any unappropriated surplus reserves,
(iv) any net unrealized appreciation of equity investments, and
(v) minorities' interests in equity of Subsidiaries;
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less (b) treasury stock; plus (c) in the case of the Company, the sum of
$600,000,000.
"Coupon Security" means any Security authenticated and delivered with one
or more interest coupons appertaining thereto.
"Debt" means (i) indebtedness for borrowed money or for the deferred
purchase price of property or services (excluding trade accounts payable
incurred in the ordinary course with a maturity of not greater than 90 days),
(ii) obligations as lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles, recorded as capital
leases, (iii) obligations under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clause (i) or (ii) above
(excluding obligations of the Company from time to time under (1) the Support
Agreement dated as of November 1, 1980, between the Company and Xerox Credit
Corporation, as amended from time to time, and (2) the Support Agreement dated
as of February 6, 1985, between Xerox Canada Inc. and Xerox Canada Finance Inc.,
as amended from time to time), and (iv) the amount of unfunded benefit
liabilities as defined in Section 4001(a)(18) of ERISA under plans covered by
Title IV of ERISA.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series issuable
or issued, in whole or in part, in the form of a Global Security, the Person
designated as Depositary by the Company pursuant to Section 3.01 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Securities of that
series.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute or statutes. Section and
Title references to ERISA are to ERISA, as in effect at the date of this
Indenture and any subsequent amendatory provision thereof.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor statute or statutes.
"Federal Bankruptcy Code" means Title 11 of the United States Code
entitled "Bankruptcy", as amended from time to time, and any successor statute
or statutes.
"Fully Registered Security" means any Security registered as to
principal and interest.
"Global Security" means a Security issued to evidence all or a part of any
series of Securities which is executed by the Company and authenticated by the
Trustee and delivered to the Depositary or pursuant to the Depositary's
instructions, all in accordance with this Indenture and pursuant to a Company
Order, which shall be registered in the name of the Depositary or its nominee
and which shall represent the amount of uncertificated Securities of such series
as specified therein.
"Holder", when used with respect to any Security, means a Securityholder
and, when used with respect to any coupon, means the bearer thereof.
"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.
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"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Matur ity of an instalment of interest on such
Securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether on a Repayment Date, at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Mortgage" has the meaning specified in Section 10.03
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President (as hereinafter defined), and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to the Trustee
in accordance with Section 314 of the TIA, to the extent applicable.
"Opinion of Counsel" means a written opinion of counsel, who may (except
as otherwise expressly provided in this Indenture) be an employee of the
Company, and who shall be reasonably satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 7.02.
"Outstanding" when used with respect to Securities or Securities of any
series, means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(a) such Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancel lation;
(b) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall be acting as its own Paying
Agent) for the Holders of such Securities, provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(c) such Securities in exchange for or in lieu of which other
Securities have been authenti cated and delivered pursuant to this
Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be Out
standing shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 7.02 and (ii) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the Com
pany or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in deter mining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be dis regarded. 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
Affili ate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities on behalf of the
Company.
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"Person" means any individual, corporation (including a business trust),
partnership, joint venture, joint-stock company, trust, unincorporated
association or other entity, or the United States or a foreign state or a
political subdivision of either thereof or any agency of the United States or
such state or subdi vision.
"Place of Payment" means a city or any political subdivision thereof
designated as such in Section 3.01.
"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 defini tion, any Security
authenticated and delivered under Section 3.06 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Principal Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of initial execution of
this Indenture, is , Attention: [; except that with respect to the presentation
of Securities for payment or for registration of transfer or exchange, such term
shall mean the office or agency of the Trustee in the Borough of Manhattan, City
of New York, which office at the date of initial execution of
this Indenture, is located at , Attention: ].
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price speci fied in such Security at which it is to be redeemed
pursuant to this Indenture.
"Registered Coupon Security" means any Coupon Security registered as
to principal.
"Registered Holder", when used with respect to a Registered Security,
means the person in whose name such Security is registered in the Security
Register.
"Registered Security" means any Security registered in the Security
Register.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date, if any, specified in such Security as the
"Regular Record Date".
"Repayment Date", when used with respect to any Security to be repaid,
means the date fixed for such repayment pursuant to such Security.
"Repayment Price", when used with respect to any Security to be repaid,
means the price at which it is to be repaid pursuant to such Security.
"Responsible Officer", when used with respect to the Trustee means the
chairman or vice chairman of the board of directors, the chairman or vice
chairman of the executive committee of the board of direc tors, the president,
any vice president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any senior trust
officer or trust officer, the controller and any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
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"Restricted Subsidiary" means any Subsidiary of the Company from time to
time having a Xxxxxxx dated Net Worth of at least $100,000,000; provided,
however, that each of Xerox Financial Services, Inc., Xerox Credit Corporation
and any other corporation principally engaged in any business or businesses
other than development, manufacture and/or marketing of (x) business equipment
(including, without limitation, reprographic, computer (including software) and
facsimile equipment), (y) merchandise or (z) services (other than financial
services) shall be excluded as a "Restricted Subsidiary" of the Company.
"Securities" has the meaning stated in the first recital of this Indenture
and shall mean any Securities authenticated and delivered pursuant to this
Indenture.
"Securityholder" means a bearer of an Unregistered Security or a
Registered Holder of a Registered Security.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" means the Person who keeps the Security Register
specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest (as
defined in Section 3.07) means the date fixed by the Trustee pursuant to
Section 3.07.
"Stated Maturity", when used with respect to any Security, or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security, or such
instalment of principal or interest, is due and payable.
"Subsidiary" means, as to any Person, any corporation of which more than
50% of the outstanding capital stock having ordinary voting power to elect a
majority of the board of directors of such corporation (irrespective of whether
or not at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indi rectly owned by such Person, by
such Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, and as in force at the date
as of which this instrument was executed, except as provided in Section 9.05.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
and include each Person who is then a Trustee hereunder. If at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Unregistered Security" means any Coupon Security, or bearer Security, not
registered as to princi pal.
"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".
SECTION 1.02. Compliance Certificates and Opinions. Except as provided by
Section 5.04, any certificate required by this Indenture or the TIA to be
delivered by the Company to the Trustee shall be signed by the Chairman of the
Board, the President or a Vice President and by the Treasurer, an Assis tant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company and be in compliance with Section 314 of the
TIA, to the extent applicable.
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Any opinion of counsel required by this Indenture or the TIA to be
delivered by or on behalf of the Company to the Trustee shall be in compliance
with Section 314 of the TIA, to the extent applicable, and be provided by
counsel to the Company, who may (except as otherwise expressly provided in this
Inden ture or in the TIA) be an employee of the Company, and who shall be
reasonably satisfactory to the Trustee.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opin ion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Securityholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Securityholders of any series may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent duly appointed in
writing or by the record of the holders of Securities voting in favor thereof at
any meeting of such Securityholders duly called and held in accordance with the
provisions of Article Thirteen; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or any such record is delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments or such
record (and the action embodied therein and evidenced thereby) is herein
sometimes referred to as the "Act" of the Securityholders signing such
instrument or instruments or voting at such meeting. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 8.01) conclusive in
favor of the Trustee and the Com pany, if made in the manner provided in this
Section . The record of any Securityholders' meeting shall be proved in the
manner provided in Section 13.07 and the record so proved shall be sufficient
for any purpose of this Indenture and (subject to Section 8.01) conclusive in
favor of the Trustee and the Com pany, if made in the manner provided in this
Section .
(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 the certificate of any 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 or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute proof of the authority of the
Person executing the same. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the Security
Register.
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(d) The amount of Unregistered Securities held by any Person executing any
such instrument or writing as a Securityholder, and the numbers of such
Unregistered Securities, and the date of his holding the same, may be proved by
the production of such Securities or by a certificate executed by any trust
company, bank, banker or member of a national securities exchange (wherever
situated), as depositary, if
such certificate is in form satisfactory to the Trustee, showing that at the
date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Unregistered Security therein described; or such facts may
be proved by the certificate or affidavit of the Person executing such
instrument or writing as a Securityholder, if such certificate or affidavit is
in a form satisfactory to the Trustee. The Trustee and the Company may assume
that such ownership of any Unregistered Security continues until (i) another
certificate bearing a later date issued in respect of the same Unregistered
Security is produced, or (ii) such Unregistered Security is produced by some
other Person, or (iii) such Unregistered Security is registered as to principal
or is surrendered in exchange for a Fully Registered Security, or (iv) such
Unreg istered Security has been cancelled in accordance with Section 3.09.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of any action taken, suffered or omitted
by the Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
(f) The Company may, but shall not be obligated to, fix a record date for
the purpose of determin ing the Holders entitled to take any action under this
Indenture by vote or consent. Such record date shall be the later of 30 days
prior to the first solicitation of such consent or vote or the date of the most
recent list of Holders furnished to the Trustee pursuant to Section 6.01 prior
to such solicitation. If a record date is fixed, those Persons who were Holders
of Securities at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to take such action by vote or consent or to
revoke any vote or consent previously given, whether or not such Persons
continue to be Holders after such record date; provided, however, that unless
such vote or consent is obtained from the Holders (or their designated proxies)
of the requisite principal amount of Outstanding Securities prior to the date
which is the 120th day after such record date, any such vote or consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
SECTION 1.05. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Securityholders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with
(1) the Trustee by any Securityholder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Principal Corpo rate Trust
Office, or
(2) the Company by the Trustee or by any Securityholder shall be
sufficient for every purpose hereunder (except as provided in Section
7.01(4)) if in writing and mailed, first-class, postage pre paid, to the
Company addressed to it at the address of its principal office specified
in the first para graph of this Indenture or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Securityholders; Waiver. Where this Indenture or
any Security provides for notice to Holders of any event, (1) if any of the
Securities affected by such event are Regis tered Securities, such notice shall
be sufficiently given (unless otherwise herein or in such Securities expressly
provided) if in writing and mailed, first-class, postage prepaid, to each
Registered Holder of such Securities, 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 and (2) if any of the
Securities affected by such event are Unregistered Securities, such notice shall
be sufficiently given (unless otherwise
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herein or in such Securities expressly provided) if published once in an
Authorized Newspaper in the Place of Payment or, if such Unregistered Securities
are listed on the Luxembourg Stock Exchange and if so requested by such
exchange, in Luxembourg, 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 Securityholders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Securityholder
shall affect the sufficiency of such notice with respect to other
Securityholders. 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 Securityholders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case, by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers, or by reason of any other cause, it shall be
impossible to make publication of any notice in an Authorized Newspaper or
Authorized Newspapers as required by any Security or this Indenture, then such
method of publication or notification as shall be made with the approval of the
Trustee shall constitute a sufficient publication of such notice.
In case, by reason of the suspension of regular mail service as a result
of a strike, work stoppage or otherwise, it shall be impracticable to mail
notice of any event to the Holders of 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 and the Company shall be
deemed to be a sufficient giving of such notice.
SECTION 1.07. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.08. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.09. Separability Clause. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provi sions shall not in any way be
affected or impaired thereby.
SECTION 1.10. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any Paying Agent, the Security Registrar
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 1.11. Legal Holidays. Except as may otherwise be provided with
respect to Securities of any series, in any case where the date of any Interest
Payment Date or Redemption Date or Repayment Date or the Maturity of any
Security or any date on which any Defaulted Interest is proposed to be paid or
the date on or by which any other action (including a date for giving notice) is
proposed or required to be taken shall not be a Business Day in a Place of
Payment, then payment of the principal of, premium, if any, or interest, if any,
on any Securities may be made, and such action may be taken, on the next suc
ceeding Business Day with the same force and effect as if made on the nominal
date of any such Interest Payment Date or Redemption Date or Repayment Date or
Maturity or on the date on which Defaulted Interest is proposed to be paid or
taken or the nominal date on or by which such action is proposed or required to
be taken, as the case may be, and no interest shall accrue on the payment so
deferred for the period from and after any such nominal date.
SECTION 1.12. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF
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RELATING TO CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK, AND ANY SUCCESSOR STATUTE OR
STATUTES).
SECTION 1.13. Trust Indenture Act. This Indenture is subject to the TIA
and if any provision hereof limits, qualifies or conflicts with the TIA, the TIA
shall control.
SECTION 1.14. Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 1.15. Securities Denominated in a Currency Other Than United
States Dollars. For the purposes of calculating the principal amount of
Securities denominated in a currency other than U.S. dollars (including units
consisting of multiple currencies) for any purpose under this Indenture the
princi pal amount of such Securities at any time Outstanding shall be deemed to
be that amount of U.S. dollars that could be obtained for such principal amount
on the basis of the spot rate of exchange for such currency into U.S. dollars as
of the date of any such calculation.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally. The Securities of each series and the
certificates of authenti cation thereon shall have 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 identifica
tion 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 Secu rities, as evidenced
by their execution of such Securities. 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.
The definitive Securities, if any, shall be printed, lithographed or
engraved or produced by any com bination of these methods on steel engraved
borders or otherwise or may be produced in any other manner as the Company may
elect, to the extent, if such Securities are listed thereon, permitted by the
rules of any securities exchange, all as determined by the officers executing
such Securities, as evidenced by their execution of such Securities.
SECTION 2.02. Forms of Securities. Each Security shall be in one of the
forms approved from time to time by or pursuant to a Board Resolution, or
established in one or more indentures supplemental hereto. Prior to the delivery
of a Security to the Trustee for authentication in any form approved by or
pursuant to a Board Resolution, the Company shall deliver to the Trustee the
Board Resolution by or pur suant to which such form of Security has been
approved, which Board Resolution shall have attached thereto a true and correct
copy of the form of Security which has been approved by or pursuant thereto, or,
if a Board Resolution authorizes a specific officer or officers to approve a
form of Security, a certificate of such officer or officers approving the form
of Security attached thereto. Any form of Security approved by or pursuant to a
Board Resolution must be acceptable as to form to the Trustee, such acceptance
to be evidenced by a certificate signed by a Responsible Officer of the Trustee
and delivered to the Company or by the execution by the Trustee of the
certificate of authentication thereon.
If any Security of a series is issuable as a Global Security (in whole or
in part), such Global Security may provide that it shall represent the aggregate
amount of Outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities represented thereby
may from time to time be reduced to reflect exchanges or may from time to time
be increased to reflect the issuance of additional uncertificated Securities of
such series. Any endorsement of a Global Security to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
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thereby shall be made by the Trustee pursuant to such instructions and in
such manner as shall be specified in such Global Security or in or pursuant to
the Company Order to be delivered to the Trustee pursuant to Section 3.03.
SECTION 2.03. Form of Trustees Certificate of Authentication. The
Trustee's certificate of authentication for any Security issued pursuant to this
Indenture shall be substantially in the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the series designated herein, described
in the within mentioned Indenture.
________________________,
AS TRUSTEE
By
----------------------------------
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Title and Terms. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued up to the aggregate principal amount of
Securities from time to time authorized by or pursuant to a Board Resolu tion.
The Securities may be issued in one or more series. All Securities of each
series issued under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time or times of the authentica
tion and delivery or Maturity of the Securities of such series. All Securities
of any one series need not be issued at the same time, and unless otherwise
provided, a series may be reopened for issuance of addi tional Securities of
such series up to the maximum aggregate principal amount authorized at the time
the series is reopened. There shall be established in or pursuant to a Board
Resolution, and set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of Securities of any
series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of that series pursu ant to this Article Three, Article Four or
Article Nine);
(3) the date or dates or the periodic intervals on which the
principal and premium, if any, of the Securities of such series is
payable, or the method of determination thereof;
(4) the rate or rates (which may be fixed or variable), or the method
of determination thereof, at which the Securities of such series shall
bear interest, if any, which, if so provided in or pursuant to the
authority granted by the resolution of the Board of Directors with respect
to such series, may be determined by the Company from time to time and set
forth in the Securities of such series issued
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from time to time, the date or dates from which such interest shall
accrue, or the method of determi nation thereof, the Interest Payment
Dates on which such interest shall be payable and the record dates, if
any, for the determination of Holders to whom interest is payable;
(5) the place or places where the principal of, and premium, if any,
and interest, if any, if other than as set forth in Section 3.01, on
Securities of such series shall be payable;
(6) the price or prices at which, the period or periods within which
and the terms and condi tions upon which Securities of such series may be
redeemed or repaid, in whole or in part, at the option of the Company or a
Holder thereof, pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of such series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, and the price or prices
at which and the period or periods within which and the terms and
conditions upon which Securities of such series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and integral multiples
thereof, the denominations in which Securities of such series shall be
issuable;
(9) whether the Securities of the series shall be issued (a) as other
than Fully Registered Securities or (b) in whole or in part in the form of
a Global Security or Securities and, in such case, (i) the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other definitive Securities, (ii) the
Depositary for such Global Security or Securities and (iii) whether such
Global Security shall be definitive or temporary;
(10) if other than the principal amount thereof, the portion of the
principal amount of an Original Issue Discount Security which shall be
payable upon declaration of acceleration of the maturity thereof pursuant
to Section 7.02; and
(11) any and all other terms of such series, including denominations
of securities in currencies other than U.S. dollars (including units
consisting of multiple currencies) and including any election as to any
optional provision, which shall be necessary to complete the form of
Security for such series, which shall be one of the forms approved or
established pursuant to Section 2.02 hereof (which terms shall not be
inconsistent with the provisions of this Indenture).
The principal of, premium, if any, and interest on the Securities shall be
payable at the office or agency of the Company in the Borough of Manhattan, The
City of New York, unless the form of any such Security shall designate a
different place of payment (any such office or place of payment being herein
called the "Place of Payment"); provided, however, and unless otherwise provided
in the form of Security for any series approved or established pursuant to
Section 2.02, that payment of interest with respect to Registered Securities may
be made at the option of the Company by check mailed to the address of the
person entitled thereto as such address shall appear in the Security Register.
SECTION 3.02. Denominations. The Securities of each series shall be
issuable in such form and denominations as shall be specified in the form of
Security for such series approved or established pursuant to Section 2.02 or in
the Officers' Certificate delivered pursuant to Section 3.01. In the absence of
any specification with respect to the Securities of any series, the Securities
of such series shall be issu able only as Fully Registered Securities without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be exe cuted on behalf of the Company by its Chairman of the
Board, its President or one of its Vice Presidents and by its Secretary or one
of its Assistant Secretaries. Interest coupons appertaining to a Coupon Security
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shall be executed on behalf of the Company by its Chairman of the Board,
its President or one of its Vice Presidents. The signatures of any or all of
these officers on the Securities and the interest coupons may be manual or
facsimile.
Securities and any interest coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or interest coupons or did not hold such offices at the date
of such Securities or interest 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 executed by the
Company to the Trustee for authentication together with a Company Order for
authentication and delivery of such securities; and the Trustee shall authenti
cate and deliver such Securities as in this Indenture provided and not
otherwise, without further action by the Company. If all the Securities of any
series are not to be issued at one time and if the Board Resolu tion 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 the terms of particular Securities of such
series such as interest rate, maturity date, date of issuance and date from
which interest shall accrue, in which case it shall not be necessary to deliver
additional Company Orders with respect to Securities of the same series.
Prior to any such authentication and delivery, the Trustee shall be
entitled to receive and shall be fully protected in relying upon:
(1) the Opinion of Counsel to be furnished to the Trustee pursuant to
Section 314(c)(2) of the TIA with the Officers' Certificate relating to
the issuance of any series of Securities;
(2) a Board Resolution relating thereto, certified by the Secretary
or an Assistant Secretary of the Company;
(3) an executed supplemental indenture, if any, relating thereto; and
(4) an Opinion of Counsel which shall state
(a) all instruments furnished to the Trustee conform to the
requirements of this Indenture and constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such Securities;
(b) all laws and requirements with respect to the form and
execution by the Company of the supplemental indenture, if any, have
been complied with, the Company has corporate power to execute and
deliver any such supplemental indenture and has taken all necessary
corporate action for those purposes and any such supplemental indenture
has been duly executed and delivered by the Company and constitutes the
legal, valid and binding obligation of the Com pany enforceable in
accordance with its terms (subject, as to enforcement of remedies, to
appli cable bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time in effect
and to general equity principles);
(c) the form and terms or the procedure for determining the
terms of such Securities have been established in conformity with the
provisions of this Indenture;
(d) subject to such conditions as may be set forth in said
Opinion of Counsel, all laws and requirements with respect to the
execution and delivery by the Company of such Securities have been
complied with, the Company has the corporate power to issue such
Securities and such Securities have been duly authorized, by the
Company and, assuming due execution by the
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Company and due authentication and delivery by the Trustee, will
constitute legal, valid and binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors' rights and to
general equity principles, and will be entitled to the benefits of
this Indenture, equally and ratably with all other Securities, if
any, of such series Outstanding;
(e) the amount of Securities Outstanding, including such
Securities, does not exceed the amount at the time permitted by law or
under the terms of this Indenture;
(f) the Indenture is qualified under the Trust Indenture Act;
and
(g) subject to such conditions as may be set forth in said Opinion of
Counsel, the issuance of the Securities does not contravene the charter or
by-laws of the Company and does not violate the terms or provisions of this
Indenture or of any indenture, mortgage or other agreement known to such counsel
to which the Company is a party.
If all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver the documents specified in (1), (2), (3) and
(4) immediately above at the time of issuance of each Security, but such
documents, with appropriate modifications, shall be delivered at or prior to the
time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate such Securities if the
issue thereof will adversely 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. The Trustee shall not be
required to authenticate Securities denominated in a coin or currency other than
U.S. dollars if the Trustee reasonably determines that such Securities impose
duties or obligations on the Trustee which the Trustee is not able or reasonably
willing to accept.
Unless otherwise provided in the form of Security for any series, all
Securities shall be dated the date of their authentication.
Subject to Section 3.11, each Depositary designated pursuant to Section
3.01 or this Section 3.03 for a Global Security must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Exchange Act, or any other applicable statute or
regulation.
If at any time the Depositary for Global Securities of a series notifies
the Company in writing that it is unwilling or unable to continue as Depositary
for the Global Securities of such series or if at any time the Depositary for
the Global Securities for such series shall no longer be eligible under this
Section 3.03 or in good standing under the Exchange Act, or other applicable
statute or regulation, the Company shall appoint a successor Depositary with
respect to the Securities for such series. If a successor Depositary for the
Securities of such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such ineligibility, the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver Securities of such series of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
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If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms in definitive form on such
terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee, upon receipt of a Company
Order, shall authenticate and deliver without service charge to the Holders, (i)
to the Depositary or to each Person specified by such Depositary a new Security
or Securities of the same series, of like tenor and terms and of any authorized
denomination as requested by such person in an aggregate principal amount equal
to and in exchange for such Person's beneficial interest in the Global Security;
and (ii) to such Depositary a new Global Security of like tenor and terms and in
a denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of securities
delivered pursuant to clause (i) hereof.
No Securities 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
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 3.04. Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute, and upon receipt of the
documents required by Sections 3.01 and 3.03, together with a Company Order, the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denominations, substantially of the tenor of the definitive Securities in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securi ties
may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Securities, the tem porary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surren der of the temporary Securities of such series at the office or agency of
the Company in the Place of Pay ment, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Secu rities the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of such series of
authorized denominations and of the same tenor. Until so exchanged the temporary
Securities of such series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
SECTION 3.05. Registration, Registration of Transfer and Exchange. The
Company shall keep or cause to be kept a register (herein sometimes referred to
as the "Security Register") in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of each series
of Registered Securities and the registration of transfers of Registered
Securities of such series. Any such register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such register or
registers shall be available for inspection by the Trustee at the office or
agency to be maintained by the Company as provided in Section 5.02.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company in the Place of Payment or at
the Principal Corporate Trust Office, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of such series of any
authorized denominations and of a like tenor, aggregate principal amount and
Stated Maturity.
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Notwithstanding any other provision of this Section 3.05, unless and until
it is exchanged in whole or in part for Securities in a definitive form, a
Global Security representing all or a portion of the Securi ties of a series may
not be transferred except as a whole by the Depositary of such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary of such series or a nomi nee of such successor
Depositary, and any such Global Security shall contain a legend to the following
effect: "Unless and until this Global Security is exchanged as a whole or in
part for definitive Securities in registered form, this Global Security may not
be transferred except as a whole by the Depositary to a nominee thereof or by a
nominee thereof to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a sucessor Depositary or a nominee of such
successor."
Upon the exchange of a Global Security for Securities in definitive form,
such Global Security shall be cancelled by the Trustee. Definitive Securities
issued in exchange for a Global Security pursuant to Section 3.03 shall be
registered in such names and in such authorized denominations and delivered to
the Depositary or to such addresses as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee in writing. The Trustee shall deliver such Securities
to the Depositary or to the persons in whose names such Securities are so regis
tered.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Regis tered Securities of such series, of any authorized
denominations and of a like tenor, aggregate principal amount and Stated
Maturity, upon surrender of the Registered Securities to be exchanged at the
office or agency of the Company in the Place of Payment or at the Principal
Corporate Trust Office. 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 Securityholder making the exchange
is entitled to receive.
Upon presentation for registration of any Unregistered Security of any
series which by its terms is registrable as to principal at the office or agency
of the Company in the Place of Payment or at the Princi pal Corporate Trust
Office, such Security shall be registered as to principal in the name of the
Holder thereof and such registration shall be noted on such Security. Any
Security so registered shall be transfer able on the Security Register, upon
presentation of such Security at such office or agency for similar nota tion
thereon, but such Security may, to the extent and under the circumstances
specified pursuant to Sec tion 3.11, be discharged from registration by being in
like manner transferred to bearer, whereupon trans ferability by delivery shall
be restored. Unregistered Securities shall continue to be subject to successive
registrations and discharges from registration at the option of the Holders
thereof.
Coupon Securities shall be transferable by delivery except while
registered as to principal. Registra tion of any Coupon Security shall not
affect the transferability by delivery of the coupons appertaining thereto,
which shall continue to be payable to bearer and transferable by delivery.
At the option of the Holder thereof, Coupon Securities of any series which
by their terms are regis trable as to principal and interest may be exchanged
for Fully Registered Securities of such series of any authorized denominations
and of a like aggregate principal amount and Stated Maturity, upon surrender of
the Coupon Securities to be exchanged at such office or agency with all
unmatured coupons and all matured coupons in default thereto appertaining, and
upon payment, if the Company shall so require, of the charges hereinafter
provided. At the option of the Holder thereof and to the extent and under the
cir cumstances specified pursuant to Section 3.11, Fully Registered Securities
of any series, which by their terms provide for the issuance of Coupon
Securities, may be exchanged for Coupon Securities or Fully Registered
Securities of such series, of any authorized denominations and of a like tenor,
aggregate prin cipal amount and Stated Maturity, upon surrender of the
Securities to be exchanged at such office or agency, and upon payment if the
Company shall so require of the charges hereinafter provided. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authen ticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
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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 Inden ture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer, exchange, redemption or repayment shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed, by
the Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or
exchanged, no service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may (unless otherwise provided in such
Securities) require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
3.04, 4.07, or 9.06 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange any Securities of any series during a period beginning at the
opening of business 15 days before the day of selection of Securities of such
series to be redeemed under Section 4.03 and ending at the close of business on
the day of the mailing of a notice of redemption of Securities of such series so
selected for redemption, or (ii) to register the transfer or exchange of any
Securities so selected for redemption in whole or that part of any Security so
selected in the case of Securities selected for redemption in part.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If (i) any
mutilated Security or any Security to which a mutilated coupon is annexed is
surrendered to the Trustee, or if the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security or any
coupon appurtenant to a Coupon Security, and (ii) there is delivered to the
Company, the Trustee and the Security Registrar such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company and the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Security or the Coupon Security
to which such mutilated, destroyed, lost or stolen coupon appertains, a new Secu
rity of the same series and of like tenor and principal amount, bearing a number
not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon.
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 (and appurtenant coupon) issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security or coupon shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security or coupon shall be at any time
enforce able by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities and
coupons of the same series 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.
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SECTION 3.07. Payment of Interest; Interest Rights Preserved. Interest on
any Fully Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall unless otherwise provided in
such Security be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered on the Regular Record Date for such
interest. Subject to the penultimate paragraph of this Section , interest on any
Unregistered Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Holder of such
Unregistered Security, or the coupon appertaining thereto, as the case may be.
Any interest on any Fully Registered Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called"Defaulted Interest") shall forthwith cease to be payable to the Holder of
such Fully Registered Security, on the relevant Regular Record Date by virtue of
his having been such Holder, and such Defaulted Interest shall be paid by the
Company, at its election in each case, as provided in Clause (1) or Clause (2)
below:
(1) The Company may elect to make payments of any Defaulted Interest
to the Persons in whose names any such Fully Registered Securities (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Inter
est, 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 Fully Registered Security and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 nor 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 Com pany of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class, postage prepaid, to each Fully
Registered Holder at his address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. The Trustee may,
in its discretion, in the name and at the expense of the Company, notify
Fully Registered Holders by causing a similar notice to be published at
least once in an Authorized Newspaper in the Place of Payment, but such
publication shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Fully Registered Securities (or their respective Predecessor
Securities) are regis tered on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of that series 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 payment shall be deemed practicable by the Trustee.
Any Defaulted Interest payable in respect of any Security which is not a
Fully Registered Security shall be payable pursuant to such procedures as may be
satisfactory to the Trustee in such manner that there is no discrimination as
between the Holders of Fully Registered Securities and other Securities of the
same series, and notice of the payment date therefor shall be given by the
Trustee, in the name and at the expense of the Company, by publication at least
once in any Authorized Newspaper in the Place of Pay ment, subject to Section
1.06.
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Subject to the foregoing provisions of this Section , each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners. Prior to due presentment for
registration of transfer of any Registered Security 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, premium, if any, on, and, if
such Registered Security is a Fully Registered Security (subject to Section
3.07) interest on, such Registered Security, and for all purposes whatsoever
(except the payment of coupons appertaining to any Registered Coupon Secu rity
and the payment of interest payable on presentation of any temporary Security),
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary. The Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder of any Unregistered Security or the Holder of any
coupon, whether or not the Security to which such coupon appertains be
registered, as the owner of such Unregis tered Security or coupon for the
purpose of receiving payment thereof and for all other purposes whatso ever,
whether or not such Unregistered Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of benefi cial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests and they shall be
protected in acting or refraining from acting on any such information provided
by the Depositary.
SECTION 3.09. Cancellation. All Securities surrendered for payment,
registration of transfer, exchange, repayment or redemption, and all coupons
surrendered for payment, shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Securities and coupons, and
Securities and coupons surrendered directly to the Trustee for any such purpose,
shall be promptly can celed by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previ ously authenticated and delivered
hereunder which the Company may have acquired in any manner what soever, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section , except as expressly permitted by this
Indenture or such Securities. All canceled Securities and coupons held by the
Trustee shall be disposed of in accordance with its standard procedures and the
Trustee shall furnish to the Company a certificate of disposition or, at the
written request of the Company, the Trustee shall deliver such cancelled
Securities to the Company. If the Company shall 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.
SECTION 3.10. Computation of Interest. Except as otherwise specified in
the form of Security for any series approved or established pursuant to Section
2.02 or in the Officers' Certificate delivered pursuant to Section 3.01 with
respect to Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.11. Compliance with Certain Laws and Regulations. If any
Unregistered Securities are to be issued in any series of Securities, the
Company will provide for arrangements and procedures reasonably designed
pursuant to then applicable laws and regulations, if any, to ensure that
Unregistered Securities are sold or resold (in connection with their original
issuance), exchanged, transferred and paid only in compliance with such laws and
regulations and without adverse consequences to the Company.
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ARTICLE FOUR
REDEMPTION AND REPAYMENT OF SECURITIES
SECTION 4.01. Applicability of Article. The Company may reserve the right
to redeem and pay before Stated Maturity all or any part of the Securities of
any series, either by optional redemption, sinking fund or otherwise, by
provision therefor in the form of Security for such series approved or estab
lished pursuant to Section 2.02 and on such terms as are specified in such form
or the Officers' Certificate delivered pursuant to Section 3.01 or the indenture
supplemental hereto as provided in Section 3.01 with respect to Securities of
such series. Redemption of Securities of any series shall be made in accordance
with the terms of such Securities and, to the extent that this Article does not
conflict with such terms, in accordance with this Article.
SECTION 4.02. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities redeemable at the option of the Company shall
be evidenced by a Board Resolution and/or by an Officers' Certificate made
pursuant to a Board Resolution. In the case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed not less than 45 nor more than 60 days
prior to the Redemption Date (unless a shorter notice shall be satisfactory to
the Trustee).
SECTION 4.03. Selection by Trustee of Securities to be Redeemed. To the
extent that the Securities of a given series have different terms, the Company
in its sole and absolute discretion shall select the Securities to be redeemed
if less than all of the series are to be redeemed. If less than all the
Securities of a given series having the same terms are to be redeemed, the
particular Securities to be redeemed shall be selected not less than 35 nor more
than 45 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series having such terms not previously called for
redemption, pro rata or by lot or by such method as the Trustee shall deem fair
and appropriate (so long as such method is not prohibited by the rules of any
stock exchange on which the Securities may be then listed) and which may provide
for the selection for redemption of portions of the principal of Securities of
such series of a denomination larger than the minimum authorized denomination
for Securities of such series. Unless otherwise provided by the terms of the
Securities of any series so selected for partial redemption, the portions of the
principal of Securities of such series so selected for partial redemption shall
be equal to $1,000 or an integral multiple thereof and the principal amount
which remains outstanding shall not be less than the minimum authorized
denomination for Securities of such series.
If less than all of the Securities of a given series having different
terms are to be redeemed, the Com pany shall notify the Trustee of the
Securities to be redeemed not less than 45 nor more than 60 days prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee.
If less than all the Securities of a series having the same terms are to be
redeemed, the Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security 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 of such Security which has been or is to be redeemed. The Trustee
shall notify the Company promptly of the Securities or portions of Securities to
be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption shall be given in
the manner provided in Section 1.06, not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) the CUSIP number; provided, that such notice shall state to the
effect that no representa tion is made as to the correctness of any such
CUSIP number, either as printed on the Security or as contained in any
such notice, and that reliance may be placed only on the other
identification num bers printed on the Securities and any redemption shall
not be affected by any defect in or omission of such numbers,
(4) the name and address of the Paying Agent,
(5) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the Securities to be redeemed,
(6) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security or portion thereof, and that interest,
if any, thereon shall cease to accrue on and after said date,
(7) the place where such Securities and all coupons, if any, are to
be surrendered for payment of the Redemption Price, which shall be the
office or agency of the Company in the Place of Pay ment,
(8) that the redemption is on account of a sinking fund, if that be
the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, on Company Request, by the Trustee in
the name and at the expense of the Company.
SECTION 4.05. Deposit of Redemption Price. On or prior to any Redemption
Date, but, in any event, not later than (i) 12:00 noon New York City time on the
applicable Redemption Date for Securities payable only in the United States, or
(ii) the close of business on the Business Day prior to the applicable
Redemption Date for Securities with a Place of Payment outside the United
States, the Company shall deposit with the Trustee or with a Paying Agent in
immediately available funds (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 5.03) an amount of
money sufficient to pay the Redemption Price of, which shall include any premium
and interest payable on, all the Securities which are to be redeemed on that
date.
SECTION 4.06. 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 pay able at the Redemption Price therein
specified and on such date (unless the Company shall default in the payment of
the Redemption Price) such Securities shall cease to bear interest. Upon
surrender of such Securities for redemption in accordance with said notice, such
Securities shall be paid by the Company at the Redemption Price. In the case of
Fully Registered Securities, unless otherwise provided in such Secu rities,
instalments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Fully Registered Securities
registered as such on the relevant Regular Record Dates according to their terms
and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by such Security, or as otherwise provided in
such Security.
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SECTION 4.07. Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at the office or agency of the
Company in the Place of Payment (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form satis
factory to the Company and the Trustee duly executed by, the Holder of any
Registered Security or his attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of the same
series, tenor and Stated Maturity of any authorized denominations as requested
by such Holder, in aggre gate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Secu rity so surrendered.
SECTION 4.08. Provisions with Respect to any Sinking Funds. If the form or
terms of any series of Securities shall provide that, in lieu of making all or
any part of any mandatory sinking fund payment with respect to such series of
Securities in cash, the Company may at its option (1) deliver to the Trustee for
cancellation any Securities of such series theretofore acquired by the Company,
or (2) receive credit for any Securities of such series (not previously so
credited) acquired by the Company and thereto fore delivered to the Trustee for
cancellation or redeemed other than through the mandatory sinking fund, then (i)
Securities so delivered, redeemed or credited shall be credited at the
applicable sinking fund Redemption Price with respect to Securities of such
series, and (ii) on or before the 60th day next preced ing each sinking fund
Redemption Date with respect to such series of Securities, the Company will
deliver to the Trustee (A) an Officers' Certificate specifying the portions of
such sinking fund payment to be satisfied by payment of cash and by the delivery
or credit of Securities of such series acquired or so redeemed by the Company,
and (B) any Securities to be so delivered, to the extent not previously surren
dered. Such Officers' Certificate shall also state that the Securities for which
the Company elects to receive credit have not been previously so credited and
were not acquired by the Company through opera tion of the mandatory sinking
fund, if any, provided with respect to such Securities or are required to be
delivered to the Trustee pursuant to Section 3.09 and shall also state that no
Event of Default with respect to Securities of such series has occurred and is
continuing. All Securities so delivered to the Trustee shall be canceled by the
Trustee and no Securities shall be authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or optional) with
respect to any series of Secu rities made in cash plus any unused balance of any
preceding sinking fund payments with respect to Securities of such series made
in cash shall exceed $50,000 (or a lesser sum if the Company shall so request),
unless otherwise provided by the terms of such series of Securities, said cash
shall be applied by the Trustee on the sinking fund Redemption Date with respect
to Securities of such series next following the date of such payment to the
redemption of Securities of such series at the applicable sinking fund
Redemption Price with respect to Securities of such series, together with
accrued interest, if any, to the date fixed for redemption, with the effect
provided in Section 4.06. The Trustee shall select, in the manner provided in
Section 4.03, for redemption on such sinking fund Redemption Date a sufficient
principal amount of Securities of such series to utilize said cash and shall
thereupon cause notice of redemption of the Securities of such series for the
sinking fund to be given in the manner provided in Section 4.04 (and with the
effect provided in Section 4.06) for the redemption of Securities in part at the
option of the Company. Any sinking fund moneys not so applied or allocated by
the Trustee to the redemption of Securities of such series shall be added to the
next cash sinking fund payment with respect to Securities of such series
received by the Trustee and, together with such payment, shall be applied in
accordance with the provisions of this Section 4.08. Any and all sinking fund
moneys with respect to Securities of any series held by the Trustee at the
Maturity of Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee, together with other moneys, if necessary, to be deposited sufficient
for the purpose, to the payment of the principal of the Securities of such
series at Maturity.
On or before each sinking fund Redemption Date provided with respect to
Securities of any series, the Company shall pay to the Trustee in cash a sum
equal to all accrued interest, if any, to the date fixed for redemption on
Securities to be redeemed on such sinking fund Redemption Date pursuant to this
Section 4.08.
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SECTION 4.09. Applicability of Early Repayment Provisions. 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 3.01 for Securities of
any series) in accordance with this Section and Sections 4.10, 4.11, 4.12 and
4.13.
SECTION 4.10. 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 Securi ties, be repaid at a price equal
to the principal amount thereof, together with interest thereon accrued to the
Repayment Date specified in the terms of such Securities. On or before the
Repayment Date, the
Company 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 5.03) an amount of money sufficient to pay the Repayment Price of all
the Securities which are to be repaid on such date.
SECTION 4.11. Exercise of Option. Unless otherwise provided in the terms
of such Securities, to be repaid at the option of the Holder, (a) in the case of
any definitive Security so providing for such repayment, such Security, together
with the "Option to Elect Repayment" form on the reverse thereof duly completed
by the Holder, or (b) in the case of any Global Security so providing for such
repayment, such notice or notices as may be set forth therein, must be received
by the Trustee or any other Person desig nated by the Company at the Place of
Payment therefor specified in the terms of such Security (or at such other place
or places of which the Company shall from time to time notify the Holders of
such Securities) not earlier than 30 days nor later than 15 days (unless a
shorter notice shall be satisfactory to the Trustee) 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 incre ments of $1,000 unless otherwise specified in
the terms of such Security, 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 4.12. When Securities Presented for Repayment Become Due and
Payable. If Secu rities of any series providing for repayment at the option of
the Holders thereof shall have been surren dered as provided in Section 4.11 and
as provided by 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) interest on such Secu rities or the portions
thereof, as the case may be, shall cease to accrue.
SECTION 4.13. Securities Repaid in Part. Upon surrender of any 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 Security or Securities of the
same series and Stated Maturity, of any authorized denomination specified by the
Holder, in an aggre gate principal amount equal to and in exchange for the
portion of the principal of such Security so surren dered which is not to be
repaid.
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ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and Interest; Compliance with
Terms. With respect to each series of Securities, the Company will duly and
punctually pay the principal of, premium, if any, and interest, if any, on the
Securities of such series in accordance with the terms of the Securities of such
series and this Indenture, and will duly comply with all the other terms,
agreements and conditions contained in, or made in the Indenture for the benefit
of, the Securities of such series.
SECTION 5.02. Maintenance of Office or Agency. The Company will maintain
an office or agency in the Place of Payment where Securities may be presented or
surrendered for payment, where Registered Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and of
any change in the location, of such office or agency. If at any time the Company
shall fail to maintain such 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 Principal Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee its agent to receive all
such presentations, surrenders, notices and demands.
SECTION 5.03. Money for Security Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent for any series of
Securities, it will, subject to Section 4.05, on or before each due date of the
principal of, premium, if any, or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the princi pal, premium or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, subject to Section 4.05, on or prior to each due date of
the principal of, premium, if any, or interest on any Securities of such series,
deposit with a Paying Agent a sum sufficient to pay the principal, premium, if
any, or interest so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure 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
(1) hold all sums held by it for the payment of principal of,
premium, if any, or interest 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, premium, if any, or interest 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 trusts as those upon which such sums were held by the Company or such
Paying Agent;
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and, upon such payment by the Company or such Paying Agent to the Trustee, the
Company or such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal, premium, if any, or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium, if any, 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
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 repay ment, may at the
expense of the Company cause to be mailed to the Holder at the Holder's last
known address or published once, in an Authorized Newspaper in the Place of
Payment, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
mailing or publication, any unclaimed balance of such money then remaining will
be repaid to the Company.
SECTION 5.04. Statement as to Compliance. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year, a certificate of the
principal executive officer, principal financial officer or principal accounting
officer of the Company stating that
(1) a review of the activities of the Company during such year and of
performance under this Indenture and under the terms of the Securities has
been made under his supervision and
(2) to the best of his knowledge, based on such review, the Company
has complied with all conditions and covenants under this Indenture and
under the terms of the Securities throughout such year, or, if there has
been a default in compliance with such conditions and covenants,
specifying each such default known to him and the nature and status
thereof.
For purposes of this Section 5.04, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
SECTION 5.05. Corporate Existence. Subject to Article Ten, the Company
will do, or cause to be done, all things necessary to preserve and keep in full
force and effect its corporate existence.
SECTION 5.06. Limitation on Liens. So long as any of the Securities shall
be Outstanding, the Company will not create or suffer to exist, or permit any of
its Restricted Subsidiaries to create or suffer to exist, any lien, security
interest or other charge or encumbrance, or any other type of preferential
arrangement, upon or with respect to any of its properties (other than any
"margin stock" as that term is defined in Regulation U issued by the Board of
Governors of the Federal Reserve System), whether now owned or hereafter
acquired, or assign, or permit any of its Restricted Subsidiaries to assign, any
right to receive income, in each case to secure any Debt of any Person without
making effective provision whereby all of the Securities of each series
(together with, if the Company shall so determine, any other Debt of the Company
or such Restricted Subsidiary then existing or thereafter created which is not
subordinate to the Securities of each series) shall be equally and ratably
secured with the indebtedness or obligations secured by such security; provided,
however, that the Company or its Restricted Subsidiaries may create or suffer to
exist any lien, security interest, charge, encumbrance or preferential
arrangement of any kind in, of or upon any of the properties or assets of the
Company or its Restricted Subsidiaries to secure any Debt or Debts in an
aggregate amount at any time outstanding not greater than 20% of the
Consolidated Net Worth of the Company; and provided, further, that the foregoing
restrictions shall not apply to any of the following:
(i) deposits, liens or pledges to enable the Company or any
Restricted Subsidiary to exercise any privilege or license or to secure
payments of workers' compensation or unemployment insurance,
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or to secure the performance of bids, tenders, contracts (other than for
the payment of money) or statutory landlords' liens under leases to which
the Company or any such Restricted Subsidiary is a party or to secure
public or statutory obligations of the Company or any such Restricted
Subsidiary or to secure surety, stay or appeal bonds to which the Company
or any such Restricted Subsidiary is a party, but as to all of the
foregoing only if the same shall arise and continue in the ordinary course
of business or other similar deposits or pledges made and continued in the
ordinary course of business;
(ii) liens imposed by law, such as mechanic's, materialmen's,
xxxxxxx'x, repairman's or carrier's liens but only if arising, and only so
long as continuing, in the ordinary course of business or other similar
liens arising and continuing in the ordinary course of business or
deposits or pledges in the ordinary course of business to obtain the
release of such liens;
(iii) liens arising out of judgments or awards against the Company or
any Restricted Subsidi ary in an aggregate amount not to exceed the
greater of (a) 15% of the Consolidated Net Worth of the Company or (b) the
minimum amount which, if subtracted from such Consolidated Net Worth would
reduce such Consolidated Net Worth below $3.2 billion, and in each case
with respect to which the Company or any such Restricted Subsidiary shall
in good faith be prosecuting an appeal or proceeding for review or liens
incurred by the Company or any such Restricted Subsidiary for the purpose
of obtaining a stay or discharge in the course of any legal proceedings to
which the Com pany or any such Restricted Subsidiary is a party;
(iv) liens for taxes if such taxes shall not at the time be
delinquent or thereafter can be paid without penalty, or are being
contested in good faith and by appropriate proceedings, or minor sur vey
exceptions or minor encumbrances, easements or reservations of or rights
of others for rights of way, sewers, electric lines, telegraph and
telephone lines and other similar purposes or zoning or other restrictions
as to the use of real properties which encumbrances, easements,
reservations, rights and restrictions do not in the aggregate materially
detract from the value of the said properties or materially impair their
use in the operation of the business of the Company or any Restricted Sub
sidiary owning the same;
(v) liens in favor of any government or any department or agency
thereof or in favor of a prime contractor under a government contract and
resulting from the acceptance of progress or par tial payments under
government contracts or sub-contracts thereunder;
(vi) liens, security interests, charges, encumbrances, preferential
arrangements and assign ments of income in existence on the date hereof;
(vii) purchase money liens or purchase money security interests upon
or in any property acquired or held by the Company or any Restricted
Subsidiary in the ordinary course of business to secure the purchase price
of such property or to secure indebtedness incurred solely for the purpose
of financing the acquisition of such property;
(viii) liens or security interests existing on property at the time
of its acquisition;
(ix) the rights of Xerox Credit Corporation relating to the reserve
account established pursuant to the Operating Agreement, dated as of
November 1, 1980, between the Company and Xerox Credit Corporation, as
such Operating Agreement is amended from time to time;
(x) the replacement, extension or renewal of any lien, security
interest, charge or encum brance, preferential arrangement or assignment
of income permitted by clauses (i) through (ix) above upon or in the same
property theretofore subject thereto or the replacement, extension or
renewal (without increase of principal amount) of the indebtedness secured
thereby; and
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(xi) liens on any assets of any Restricted Subsidiary of up to
$500,000,000 which may be incurred in connection with the sale or
assignment of assets of such Restricted Subsidiary for cash where the
proceeds are applied to repayment of Debt of such Restricted Subsidiary
and/or invested by such Restricted Subsidiary in assets which would be
reflected as receivables on the such Restricted Subsidiary's balance sheet
in accordance with generally accepted accounting principles.
SECTION 5.07. Waiver of Covenants. The Company may omit, in respect of any
series of Securities, in any particular instance to comply with any covenant or
condition set forth in Section 5.06 hereof, if before or after the time for such
compliance the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding of such series shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
ARTICLE SIX
SECURITYHOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.01. Company to Furnish Trustee Names and Addresses of
Securityholders. The Company will furnish or cause to be furnished to the
Trustee (a) semiannually, not more than 10 days after each and , commencing , a
list, in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Com pany, or any of its Paying
Agents other than the Trustee, as to the names and addresses of the Holders of
Securities as of such or , and (b) at such other times as the Trustee may
request in writing, within 30 days after receipt by the Company of any such
request, a list of similar form and con tent 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 and all of the Securities of any series are
Registered Securi ties, no such list shall be required to be furnished in
respect of such series, but in any event the Company shall be required to
furnish such information concerning the Holders of Unregistered Securities which
is known to the Company; provided, however, that the Company shall have no
obligation to investigate any matter relating to any Holder of an Unregistered
Security.
SECTION 6.02. Preservation of Information; Communications to
Securityholders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information furnished to it or received by it in its
capacity of Security Registrar pursuant to Section 6.01.
(b) If three or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, accompanied by
reasonable proof that each such applicant has owned a Security of such series
for a period of at least six months preceding the date of such application and
by a copy of the form of proxy or other communication which such applicants
propose to transmit, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the Holders
of all Securities with respect to their rights under this Indenture or under
such Securi ties, then the Trustee shall, within five Business Days after
receipt of the application, at its election, either (i) afford such applicants
access to the information preserved at the time by the Trustee in accordance
with Section 6.02(a), or (ii) inform such applicants as to the approximate
number of Holders of Securities of such series or all Securities, as the case
may be, whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 6.02(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or to all Holders, as the case
may be, whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 6.02(a), a copy of the form of
proxy or other communication
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which is specified in such request, with reasonable promptness after a tender to
the Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of such series or
all Holders, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all Holders of such
series or all Holders , as the case may be, with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise, the Trustee shall
be relieved of any obligation or duty to such applicants with respect to their
application.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee shall
be held accountable by reason of the disclosure of any such information as to
the names and address of the Holders of Securities in accordance with Section
6.02(b), regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 6.02(b).
SECTION 6.03. Reports by Trustee. Within 60 days after each ,
commencing , the Trustee shall transmit to Securityholders a report as
provided in Section 313(a) of the TIA if so required by such Section .
SECTION 6.04. Reports by Company. The Company will
(a) file with the Trustee, within 30 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 regula tions
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act; or, if the the Company is
not required to file information, documents and reports pursuant to either of
said Sections , then it will file with the Trustee and the Commission, in accor
dance with rules and regulations prescribed from time to time by the Commission,
such of the supplemen tary and periodic information, documents and reports which
may be required pursuant to Section 13 or 15(d) of the Exchange Act, 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;
(b) 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 such rules and regulations; and
(c) mail or cause to be mailed to all Securityholders, in the manner and
to the extent provided in Section 313(c) of the TIA, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to clauses (a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
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ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default. "Event of Default", with respect to
any series of Securities, wherever used herein, means each 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 either inapplicable to a
particular series or it is specifically deleted or modified in the supplemental
indenture under which such series of Securities is issued or in the form of
Security for such series:
(1) default in the payment of any interest upon any Security of such
series when the same becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of or premium, if any, on
any Security of such series at its Maturity; or
(3) default in the making or satisfaction of any sinking fund payment
or analogous obligation when the same becomes due by the terms of the
Securities of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in respect of the Securities of such series (other
than a covenant or warranty in respect of the Securities of such series a
default in whose performance or whose breach is elsewhere in this Section
specifi cally dealt with), 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 the Outstanding
Securities of such series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry of a decree by a court having jurisdiction in the
premises adjudging the Com pany 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 Bank
ruptcy Code or any other applicable Federal or State law, 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 60
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 peti tion 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 assign ment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(7) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of Security
for such series.
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SECTION 7.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to any series of Securities for which there are
Securities Outstanding occurs and is continu ing, then, and in every such case,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series (each such series acting as a separate
class) may declare the principal (or, if the Securities of such series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of the Securities of such series) of all the
Securities of such series to be immediately due and payable, by a notice in
writing to the Company (and to the Trustee if given by Securityholders), and
upon any such declaration the same shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue instalments of interest on all Securities of
such series,
(B) the principal of and premium, if any, on any Securities of
such series which have become due otherwise than by such declaration
of acceleration, and interest thereon at the rate or rates prescribed
therefor by the terms of the Securities of such series, to the extent
that pay ment of such interest is lawful,
(C) to the extent that payment of such interest is lawful,
interest upon overdue instal ments of interest at the rate or rates
prescribed therefor by the terms of the Securities of such series,
and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensa tion, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to such series of Securities,
other than the non-payment of the principal of Securities of such series
which have become due solely by such acceleration, have been cured or
waived as provided in Section 7.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Com pany covenants that if
(1) default is made in the payment of any instalment of interest on
any Security of any series when such interest becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of or premium, if
any, on any Security of any series at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking fund
payment or analogous obligation when the same becomes due by the terms of
the Securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security (or Holders of Securities of any such series in the
case of Clause (3) above), the whole amount then due and payable on any such
Security (or Securities of any such series in the case of Clause (3) above) for
principal, premium, if any, and interest, with interest upon the overdue
principal and premium, if any (to
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the extent that payment of such interest is lawful), and (to the extent that
payment of such interest shall be legally enforceable) upon overdue instalments
of interest, at the rate or rates prescribed therefor by the terms of any such
Security (or Securities of any such series in the case of Clause (3) above);
and, in addi tion thereto, such further amount as shall be sufficient to cover
the reasonable costs and expenses of col lection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor 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 any series of Securities 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 by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim. With respect to any proofs
of claims filed by the Trustee pursuant to Section 317 of the TIA, the Trustee
shall be entitled to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same and any receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Securityholder 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 Securityholders, to pay to the
Trustee any amount due to 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 8.05.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under the Indenture or under the Securities of
any series may be prosecuted and enforced by the Trustee without the possession
of any of the Securities of such series or the related 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 judg ment 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 of such series in respect of which such judgment has been recovered.
SECTION 7.06. Application of Money Collected. Any money collected by the
Trustee with respect to a series of Securities pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee, and,
in case of the distribution of such money on account of principal, pre mium or
interest, upon presentation of the Securities of such series or the coupons
appertaining thereto, 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
8.05;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of such series for principal, premium, if any, and interest, in
respect of which or for the benefit of which such money has
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been collected, ratably, without preference or priority of any kind, according
to the amounts due and pay able on Securities of such series, for principal,
premium, and interest, respectively; and
THIRD: To the Company.
SECTION 7.07. Limitation on Suits. No Holder of any Security of any
series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appoint ment 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 Securities of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, dis turb or prejudice
the rights of any other Holders of Securities of such series or to obtain or to
seek to obtain priority or preference over any other such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Securities of such series.
SECTION 7.08. 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 discon tinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case the Company, the Trustee and the Holders shall, subject
to any determination in such proceeding, be restored severally and respectively
to their former positions hereunder, and there after all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 7.09. Rights and Remedies Cumulative. Except as provided in the
last paragraph of Section 3.06, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders 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 appropri ate
right or remedy.
SECTION 7.10. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder 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.
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SECTION 7.11. Control by Securityholders. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of con ducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine that the proceeding so directed would
be prejudicial to the Holders of Securities of such series not joining in
any such direction or would involve the Trustee in personal liability,
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsis tent with such direction, and
(4) the Trustee has reasonable indemnity against the costs, expenses
and liabilities incurred in compliance with such direction.
SECTION 7.12. Waiver of Past Defaults. The Holders of 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
hereunder and its consequences, except a default not theretofore cured
(1) in the payment of the principal of, premium, if any, or interest
on any Security of such series, or in the payment of any sinking fund
instalment or analogous obligation with respect to Securities of such
series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of the Securities of such series under this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 7.13. Waiver of Stay or Extension Laws. The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time here after in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Rights of Trustee. Except as otherwise provided
in Section 315 of the TIA:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
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(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be suf ficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trus tee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opin ion 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;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note or other paper or document, but the Trustee, in its discretion,
may make such fur ther inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties here under either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) 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;
and
(i) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if the Trustee in good faith believes that the
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 8.02. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the certificates of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 8.03. May Hold Securities. The Trustee, any Paying Agent, Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Sections 310(b) and 311 of the TIA, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Paying Agent, Security
Registrar or such other agent.
[The following indentures shall be excluded from the operation of
Section 310(b)(1) of the TIA: ]
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SECTION 8.04. 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 liabil ity for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 8.05. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time such reasonable
compensation for all services ren dered by it hereunder as may be agreed
upon between the Company and the Trustee (which compen sation 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 accor dance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the accep tance or
administration of this trust, 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 here under.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of, premium, if any, or interest on
particular Securities.
SECTION 8.06. Corporate Trustee Required; Eligibility. The Trustee shall
at all times satisfy the eligibility requirements of Section 310 of the TIA and
together with its immediate parent maintain a combined capital and surplus of at
least $50,000,000. If the Trustee together with its immediate parent publishes a
report of condition at least annually, pursuant to law or pursuant to the
requirements of any Federal, State, territorial, or District of Columbia
supervising or examining authority to which the Trustee is subject, then, for
purposes of this section, the combined capital and surplus of the Trustee shall
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee with respect to any series of
Securities shall cease to be eligible in accordance with the provi sions of this
Section , it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 8.07. 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 under Section 8.08.
(b) The Trustee may resign with respect to any series of Securities at any
time by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to Securities of such series.
(c) The Trustee may be removed with respect to any series of Securities at
any time by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b)(i) of the
TIA with respect to any xx xxxx of Securities after written request
therefor by the Company or by any Securityholder who has been a bona fide
Holder of a Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 8.06 hereof
or Section 310(a) of the TIA with respect to any series of Securities and
shall fail to resign after written request therefor by the Company or by
any such Securityholder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities or shall be adjudged a bankrupt or insolvent or a
receiver 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 such series, or (ii) subject to Section
315(e) of the TIA, any Securityholder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee with
respect to such series.
(e) If the Trustee shall resign, be removed or become incapable of acting
with respect to any series of Securities, or if a vacancy shall occur in the
office of Trustee with respect to any series of Securities for any cause, the
Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Trustee with respect to such series of Securities. If, within one year
after such resignation, removal or incapabil ity, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by the 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 with respect to such series, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trus tee
with respect to such series and supersede the successor Trustee appointed by the
Company with respect to such series. If no successor Trustee with respect to
such series shall have been so appointed by the Company or the Holders of
Securities of such series and accepted appointment in the manner hereinafter
provided, any Securityholder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent juris diction for the
appointment of a successor Trustee with respect to such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to any series and each appointment of a successor
Trustee with respect to any series by mailing written notice of such event by
first-class mail, postage prepaid, to Registered Holders of Securities of such
series as their names and addresses appear in the Security Register and to all
other Holders of Secu rities of such series by publishing notice of such event
once in an Authorized Newspaper in the Place of Payment. Each notice shall
include the name of such successor Trustee and the address of its Principal
Corporate Trust Office.
SECTION 8.08. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instru ment accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective with respect to all or any series as to which it is resigning as
Trustee, 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 with respect to all or any such series; but, on request
of the Com pany or such 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 such retir ing Trustee
with respect to all or any such series; and shall duly assign, transfer and
deliver to such suc cessor Trustee all property and money held by such retiring
Trustee hereunder with respect to all or any
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such series; subject nevertheless to its lien, if any, provided for in Section
8.05. Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts.
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 any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of any series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such supplemen
tal 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.
No successor Trustee with respect to a series of Securities shall accept
its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible with respect to such series under this Article
and the TIA.
SECTION 8.09. Merger Conversion, Consolidation or Succession to Business
of Trustee. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trus tee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article and the TIA, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 8.10. Appointment of Authenticating Agent. As of the date of the
Indenture and at any time when any of the Securities remain Outstanding the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer, or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Inden ture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder.
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authenti cation and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall meet the
requirements of Section 8.06, unless otherwise agreed to by the Company, as
though it were trustee.
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 Authenti cating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in accordance with Section 1.06 to all Holders of Securities of the
series with respect to which such Authen ticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
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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.
The provisions of Sections 3.08, 8.02 and 8.03 shall be applicable to each
Authenticating Agent.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensa tion for its services under this Section .
The Trustee shall incur no liability for the appointment or for any
misconduct or negligence of an Authenticating Agent. In the event the Trustee
does incur liability for any such misconduct or negligence of the Authenticating
Agent, the Company agrees to indemnify the Trustee for, and hold it harmless
against, any such liability, including the costs and expenses of defending
itself against any liability in connection with such misconduct or negligence of
the Authenticating Agent.
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:
This is one of the Securities, of the series designated herein, described
in the within-mentioned Indenture.
[NAME OF TRUSTEE]
as Trustee
By
--------------------------------
As Authenticating Agent
By
--------------------------------
Authorized Officer
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Securityholders.
Without the consent of any Holders of any Securities, the Company, when
authorized by or pursuant to a Board Reso lution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supple mental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company,
and the assumption by any such successor of the covenants of the Company
herein and in the Securities contained; or
(2) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to one
or more series of Securities and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
admini stration of the trusts hereunder by more than one Trustee, pursuant
to Section 8.08; or
(3) to add to the covenants of the Company, for the benefit of the
Holders of Securities of all or any series, or to surrender any right or
power herein conferred upon the Company, provided that such action shall
not adversely affect the interests of the Holders of Securities of any
series in any material respect; or
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(4) to cure any ambiguity, to correct or supplement any provision in
this Indenture or in the Securities which may be inconsistent with any
other provision in this Indenture or in such Securities, or to make any
other provisions with respect to matters or questions arising under this
Indenture or in such Securities; or
(5) to establish the form of any Security, as permitted by Section
2.02, and to provide for the issuance of any series of Securities, as
permitted by Section 3.01, and to set forth the terms thereof; or
(6) to make any other amendments, modifications or supplements hereto
or to the Securities, provided, that such amendments, modifications or
supplements shall only apply to Securities of one or more series to be
thereafter issued or shall not adversely affect the rights of any Holder
of any Outstanding Security.
SECTION 9.02. Supplemental Indentures with Consent of Securityholders.
With the consent of the Holders of not less than a majority in principal amount
of the Outstanding Securities of each series affected by such supplemental
indenture or indentures (each such series voting separately as a class), 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 or such Securities or of modifying in any manner the rights of
the Holders of Securities of each such series under this Indenture or such
Securities; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected thereby:
(1) change the Maturity of the principal of, or the premium if any, or
the Stated Maturity of any instalment of interest on, any Security, or
reduce the principal amount thereof or any premium thereon or the rate of
interest thereon, or change the method of computing the amount of
principal thereof on any date or change the coin or currency in which any
Security or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Maturity or the Stated Maturity, as the case may be, thereof
(or, in the case of redemption or repayment, on or after the Redemption
Date or the 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 or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
of certain defaults hereunder and their consequences) provided for in this
Indenture; or
(3) modify any of the provisions of this Section , Section 5.07 or
Section 7.12, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
It shall not be necessary for any Act of Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel in compliance with Section 314
of the TIA stating that the execution of such supplemental indenture is
authorized or permitted by and complies with this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
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SECTION 9.04. 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 9.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
TIA as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities 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
so modified as to conform, in the opinion of the Trustee and the Board of
Directors, 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.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms. The
Company shall not consolidate with or merge into any other corporation or convey
or transfer its properties and assets substantially as an entirety to any
Person, unless
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Company substantially as an entirety
shall be organized and existing under the laws of the United States of
America or any State or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of, premium, if any, and interest on all the Securities
and the performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer 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 10.02. Successor Corporation Substituted. Upon any consolidation
or merger, or any conveyance or transfer of the properties and assets of the
Company substantially as an entirety in accordance with Section 10.01, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance or transfer 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 corporation had been
named as the Company herein. In the event of any such conveyance or transfer,
the Company as the predecessor corporation shall be discharged from its
obligations hereunder and may be dissolved, wound up and liquidated at any time
thereafter.
SECTION 10.03. Securities to be Secured in Certain Events. If, upon any
such consolidation or merger of the Company, or upon any conveyance or transfer
of the properties and assets of the Company substantially as an entirety to any
other Person, any property, whether now owned or hereafter acquired, or right to
receive income of the Company or any Restricted Subsidiary would thereupon
become subject
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to any lien, security interest or other charge or encumbrance, or any other type
of preferential arrangement (any such lien, security interest or other charge or
encumbrance, or any other type of preferential arrangement being herein called a
"Mortgage"), unless the Company could create such Mortgage pursuant to Section
5.06 without equally and ratably securing the Securities, the Company, prior to
such consolidation, merger, conveyance or transfer, will secure the Outstanding
Securities of each series hereunder, equally and ratably with (or prior to) the
Debt secured by such Mortgage.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided for
and rights to receive payments thereon pursuant to Section 11.02), with respect
to a series of Securities, and the Trustee, on demand of and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to such series of Securities, when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities of such series which have
been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.06, and (ii) Securities of such series for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section
5.03) have been delivered to the Trustee for cancellation; or
(B) all such Securities of such series not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Maturity within
one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee, as trust funds
in trust for the purpose, an amount sufficient to pay and discharge
the entire indebtedness on such Securities of such series not
theretofore delivered to the Trustee for cancellation, for principal,
premium, if any, and interest, if any, to the date of such deposit
(in the case of Securities of such series which have become due and
payable), or to the 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 with respect to the Securities of such series;
(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 with respect to the Securities of such series have been complied
with; and
(4) the Company has delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or
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(ii) since the date of this Indenture there has been a change in the
applicable Federal income tax law, in either case to the effect that, and
based thereon such Opinion will confirm that, the Holders of the
Outstanding Securities of such series will not recognize income, gain or
loss for Federal income tax as a result of such satisfaction and discharge
and will be subject to the Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
satisfaction and discharge had not occurred.
Notwithstanding the satisfaction and discharge of the Indenture, the obligations
of the Company to the Trustee under Section 8.05 shall survive.
SECTION 11.02. Application of Trust Money. All money deposited with the
Trustee pursuant to Section 11.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities 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, premium, if any, and interest 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.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01. Exemption from Individual Liability. No recourse under or
upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company, 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 this Indenture and the obligations issued
hereunder are solely corporate obligations of the Company, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
of any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, stockholder, officer or
director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom,
are hereby expressly waived and released as a condition of, and as consideration
for, the execution of this Indenture and the issuance of the Securities.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.01. Purposes of Meetings. A meeting of Holders of Securities of
all or any series may be called at any time and from time to time pursuant to
the provisions of this Article for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to waive any default hereunder and its
consequences, or to take any other action authorized to be taken by the
Holders of Securities pursuant to any of the provisions of Article Seven;
(2) to remove the Trustee and appoint a successor Trustee pursuant to
the provisions of Article Eight;
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(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02; or
(4) to take any other action authorized to be taken by or on behalf
of the Holders of any specified percentage in aggregate principal amount
of the Securities of all or any series, as the case may be, under any
other provision of this Indenture or under applicable law.
SECTION 13.02. Call of Meetings by Trustee. The Trustee may at any time
call a meeting of Holders of Securities of all or any series to take any action
specified in Section 13.01 to be held at such time and at such place as the
Trustee shall determine or at such other place as may be provided with respect
to the Securities of such series. Notice of every meeting of the Holders of
Securities of all or any series, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given to all holders of Securities of each series that are to be
affected by the action proposed to be taken at such meeting by publication at
least twice in an Authorized Newspaper in the Borough of Manhattan, The City of
New York or in such other place as may be provided with respect to the
Securities of such series prior to the date fixed for the meeting, the first
publication to be not less than 20 nor more than 180 days prior to the date
fixed for the meeting, and the last publication to be not more than five days
prior to the date fixed for the meeting, or such notice may be given to
Registered Holders by mailing the same by registered mail, postage prepaid, to
the Holders of Registered Securities at the time Outstanding, at their address
as they shall appear in the Security Register, not less than 20 nor more than 60
days prior to the date fixed for the meeting. Failure to receive such notice or
any defect therein shall in no case affect the validity of any action taken at
such meeting. Any meeting of Holders of Securities of all or any series shall be
valid without notice if the Holders of all such Securities Outstanding, the
Company and the Trustee are present in person or by proxy or shall have waived
notice thereof before or after the meeting.
SECTION 13.03. Call of Meetings by Company or Securityholders. In case at
any time the Company, by or pursuant to Board Resolution, or the Holders of at
least 10% in aggregate principal amount of Securities then Outstanding of each
series that may be affected by the action proposed to be taken at the meeting
shall have requested the Trustee to call a meeting of Holders of Securities of
all series that may be so affected to take any action authorized in Section
13.01 by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have mailed or made the
first publication of the notice of such meeting within 30 days after receipt of
such request, then the Company or the Holders in the amount above specified may
determine the time and the place referred to in Section 13.02 for such meeting
and may call such meeting by mailing or publishing notice thereof as provided in
Section 13.02.
SECTION 13.04. Qualifications for Voting. To be entitled to vote at any
meeting of Securityholders a Person shall (a) be a Holder of one or more
Securities of a series affected by the action proposed to be taken, or (b) be a
Person appointed by an instrument in writing as proxy by the Holder of one or
more such Securities. The right of Securityholders to have their votes counted
shall be subject to the proviso in the definition of "Outstanding" in Section
1.01. The only Persons who shall be entitled to be present or to speak at any
meeting of Securityholders shall be the Persons entitled to vote at such meeting
and their counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 13.05. Quorum; Adjourned Meetings. At any meeting of
Securityholders, the presence of Persons holding or representing Securities in
an aggregate principal amount sufficient to take action on the business for the
transaction of which such meeting was called shall be necessary to constitute a
quorum. No business shall be transacted in the absence of a quorum unless a
quorum is represented when the meeting is called to order. 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 the Holders of Securities (as provided in
Section 13.03), be dissolved. In any other case the Persons holding or
representing a majority in aggregate principal amount of the Securities
represented at the meeting may adjourn such a meeting for a
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period of not less than 10 days with the same effect, for all intents and
purposes, as though a quorum had been present. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be similarly further
adjourned for a period of not less than 10 days. Notice of the reconvening of
any such adjourned meeting shall be given as provided in Section 13.02 except
that, in the case of publication, such notice need be published only once but
must be given not less than five days prior to the date on which the meeting is
scheduled to be reconvened, and in the case of mailing, such notice may be
mailed not less than five days prior to such date.
Any Holder of a Security who has executed an instrument in writing
complying with the provisions of Section 1.04 shall be deemed to be present for
the purposes of determining a quorum and be deemed to have voted; provided,
however, that such holder shall be considered as present or voting only with
respect to the matters covered by such instrument in writing.
Any resolution passed or decision taken at any meeting of the Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all Holders of such series of Securities whether or not present or
represented at the meeting.
SECTION 13.06. Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities, in regard to proof of the
holding of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 13.03, in which case
the Company or the Holders of Securities calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent chairman and
a permanent secretary of the meeting shall be elected by vote of the Holders of
a majority in principal amount of the Securities represented at the meeting.
At any meeting each Holder of a Security of a series entitled to vote at
such meeting, or proxy therefor, shall be entitled to one vote for each $1,000
principal amount (in the case of Original Issue Discount Securities, such
principal amount to be determined as provided in the definition of
"Outstanding") of Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote except as a Holder of Securities of such series or proxy therefor.
Any meeting of Holders of Securities duly called pursuant to the provisions of
Section 13.02 or 13.03 at which a quorum is present may be adjourned from time
to time, and the meeting may be held as so adjourned without further notice.
SECTION 13.07. Voting Procedure. The vote upon any resolution submitted to
any meeting of Securityholders shall be by written ballot on which shall be
subscribed the signatures of the Holders of Securities entitled to vote at such
meeting, or proxies therefor, and on which shall be inscribed an identifying
number or numbers or to which shall be attached a list of identifying numbers of
the Securities so 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 in duplicate of the proceedings of each
meeting of Holders of Securities 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 mailed or published as provided in
Section 13.02 and, if applicable, Section 13.05. The record shall be signed and
verified by the permanent chairman and secretary of the meeting and one of the
duplicates
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shall be delivered to the Company and the other to the Trustee to be preserved
by the Trustee, the latter to have attached thereto the ballots voted at the
meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 13.08. Written Consent in Lieu of Meetings. The written
authorization or consent by the Holders of the requisite percentage in aggregate
principal amount of Securities of any series herein provided, entitled to vote
at any such meeting, evidenced as provided in Section 1.04 and filed with the
Trustee, shall be effective in lieu of a meeting of the Holders of Securities of
such series, with respect to any matter provided for in this Article Thirteen.
SECTION 13.09. No Delay of Rights by Meeting. Nothing in this Article
contained shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Holders of Securities of any or all series or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or the Holders of the Securities of any or all such series under any
provisions of this Indenture or the Securities.
_________________________________________ hereby accepts the trusts in
this Indenture declared and provided, upon the terms and conditions hereinabove
set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
XEROX CORPORATION
BY ________________________________
Title:
Attest:
[CORPORATE SEAL]
______________________________
Title:
____________________________________
BY ________________________________
Title:
Attest:
[CORPORATE SEAL]
______________________________
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COUNTY OF FAIRFIELD, )
) ss.:
STATE OF CONNECTICUT, )
On this day of , before me personally appeared ,
to me known, who being by me duly sworn, did depose and say that (s)he resides
at ; that (s)he is of
XEROX CORPORATION, one of the corporations described in and which executed the
foregoing instrument; that (s)he knows the corporate seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that
(s)he signed her/his name thereto by like authority.
______________________________________
Notary Public
My Commission Expires
[NOTARIAL SEAL]
COUNTY OF )
) ss.:
STATE OF )
On this day of ,before me personally appeared ,
to me known, who, being by me duly sworn, did depose and say that (s)he resides
at ; that
(s)he is of , one of the corporations
described in and which executed the foregoing instrument; that (s)he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that (s)he signed her/his name thereto by
like authority.
______________________________________
Notary Public
My Commission Expires
[NOTARIAL SEAL]
