Exhibit 4(b)
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CITIGROUP FUNDING INC.
Issuer
CITIGROUP INC.
Guarantor
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INDENTURE
Dated as of June 1, 2005
Senior Securities
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JPMORGAN CHASE BANK, N.A.
Trustee
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TABLE OF CONTENTS*
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions............................................. 2
Affected Security....................................... 2
Affiliate............................................... 2
Authenticating Agent.................................... 2
Authorized Newspaper.................................... 2
Bearer Security......................................... 2
Board of Directors...................................... 3
Board Resolution........................................ 3
Business Day............................................ 3
Code.................................................... 3
Company................................................. 3
Company Order; Company Request.......................... 3
Corporate Trust Office.................................. 4
Coupon.................................................. 4
Coupon Security......................................... 4
Currency................................................ 4
Default................................................. 4
Defaulted Interest...................................... 4
Depositary.............................................. 4
Discharged.............................................. 4
Event of Default........................................ 5
Exchange Act............................................ 5
Floating Rate Security.................................. 5
Foreign Currency........................................ 5
GAAP.................................................... 5
Global Security......................................... 5
Guarantee............................................... 5
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* The Table of Contents is not a part of the Indenture.
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Guarantor............................................... 5
Indebtedness............................................ 5
Indenture............................................... 6
interest................................................ 6
Interest Payment Date................................... 6
Mandatory Sinking Fund Payment.......................... 6
Maturity................................................ 6
Members................................................. 6
Officers' Certificate................................... 6
Opinion of Counsel...................................... 7
Optional Sinking Fund Payment........................... 7
Original Issue Discount Security........................ 7
Outstanding............................................. 7
Paying Agent............................................ 8
Person.................................................. 8
Place of Payment........................................ 8
Predecessor Security.................................... 8
Record Date............................................. 8
Redemption Date......................................... 8
Redemption Price........................................ 9
Register................................................ 9
Registrar............................................... 9
Registered Security..................................... 9
Responsible Officers.................................... 9
SEC..................................................... 9
Securities Act.......................................... 9
Security................................................ 9
Security Custodian...................................... 10
Securityholder; holder of Securities, holder; registered
holder............................................... 10
Significant Subsidiary.................................. 10
Special Record Date..................................... 10
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Stated Maturity......................................... 10
Subsidiary.............................................. 10
Successor Company....................................... 10
Trust Indenture Act; TIA................................ 10
Trustee................................................. 11
U.S. Dollars............................................ 11
U.S. Government Obligations............................. 00
Xxxxxx Xxxxxx........................................... 00
Xxxxxx Xxxxxx Alien..................................... 11
Voting Stock............................................ 11
ARTICLE II
FORMS OF SECURITIES
Section 2.01. Terms of the Securities................................. 11
Section 2.02. Form of Bearer Security................................. 12
Section 2.03. Form of Trustee's Certificate of Authentication......... 12
Section 2.04. Form of Trustee's Certificate of Authentication by an
Authenticating Agent................................. 13
ARTICLE III
THE DEBT SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series.................... 13
Section 3.02. Denominations........................................... 16
Section 3.03. Execution, Authentication, Delivery and Dating.......... 16
Section 3.04. Temporary Securities.................................... 19
Section 3.05. Registrar and Paying Agent.............................. 20
Section 3.06. Transfer and Exchange................................... 21
Section 3.07. Mutilated, Destroyed, Lost and Stolen Securities........ 25
Section 3.08. Payment of Interest; Interest Rights Preserved.......... 26
Section 3.09. Cancellation............................................ 28
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Section 3.10. Computation of Interest................................. 29
Section 3.11. Currency of Payments in Respect of Securities........... 29
Section 3.12. Judgments............................................... 29
Section 3.13. CUSIP Numbers........................................... 30
ARTICLE IV
REDEMPTION OF SECURITIES
Section 4.01. Applicability of Right of Redemption.................... 30
Section 4.02. Tax Redemption; Special Tax Redemption.................. 30
Section 4.03. Selection of Securities to be Redeemed.................. 32
Section 4.04. Notice of Redemption.................................... 33
Section 4.05. Deposit of Redemption Price............................. 34
Section 4.06. Securities Payable on Redemption Date................... 34
Section 4.07. Securities Redeemed in Part............................. 35
ARTICLE V
SINKING FUNDS
Section 5.01. Applicability of Sinking Fund........................... 35
Section 5.02. Mandatory Sinking Fund Obligation....................... 36
Section 5.03. Optional Redemption at Sinking Fund Redemption Price.... 36
Section 5.04. Application of Sinking Fund Payment..................... 36
ARTICLE VI
PARTICULAR COVENANTS OF THE COMPANY
Section 6.01. Payments of Securities.................................. 37
Section 6.02. Payment of Additional Interest.......................... 38
Section 6.03. Paying Agent............................................ 39
Section 6.04. To Hold Payment in Trust................................ 40
Section 6.05. Merger, Consolidation and Sale of Assets................ 42
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Section 6.06. Compliance Certificate.................................. 42
Section 6.07. Conditional Waiver by Holders of Securities............. 42
Section 6.08. Statement by Officers as to Default..................... 43
ARTICLE VII
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
Section 7.01. Events of Default....................................... 43
Section 7.02. Acceleration; Recission and Annulment................... 44
Section 7.03. Other Remedies.......................................... 46
Section 7.04. Trustee as Attorney-in-Fact............................. 46
Section 7.05. Priorities.............................................. 47
Section 7.06. Control by Holders; Waiver of Past Defaults............. 48
Section 7.07. Limitation on Suits..................................... 48
Section 7.08. Undertaking for Costs................................... 49
Section 7.09. Remedies Cumulative..................................... 49
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
Section 8.01. Evidence of Action of Securityholders................... 49
Section 8.02. Proof of Execution or Holding of Securities............. 50
Section 8.03. Persons Deemed Owners................................... 51
Section 8.04. Revocation of Consents.................................. 51
ARTICLE IX
SECURITYHOLDERS' MEETINGS
Section 9.01. Purposes of Meetings.................................... 52
Section 9.02. Call of Meetings by Trustee............................. 52
Section 9.03. Call of Meetings by Company or Securityholders.......... 52
Section 9.04. Qualifications for Voting............................... 52
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Section 9.05. Regulation of Meetings.................................. 53
Section 9.06. Voting.................................................. 53
Section 9.07. No Relay of Rights by Meeting........................... 54
ARTICLE X
REPORTS BY THE COMPANY, THE GUARANTOR AND
THE TRUSTEE AND SECURITYHOLDERS' LISTS
Section 10.01. Reports by Trustee...................................... 54
Section 10.02. Reports by the Company and the Guarantor................ 54
Section 10.03. Securityholders' Lists.................................. 55
ARTICLE XI
CONCERNING THE TRUSTEE
Section 11.01. Rights of Trustees; Compensation and Indemnity.......... 55
Section 11.02. Duties of Trustee....................................... 58
Section 11.03. Notice of Defaults...................................... 59
Section 11.04. Eligibility; Disqualification........................... 59
Section 11.05. Registration and Notice; Removal........................ 60
Section 11.06. Successor Trustee by Appointment........................ 60
Section 11.07. Successor Trustee by Merger............................. 62
Section 11.08. Right to Rely on Officer's Certificate.................. 62
Section 11.09. Appointment of Authenticating Agent..................... 63
Section 11.10. Communications by Holders with Other Holders............ 63
ARTICLE XII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 12.01. Applicability of Article................................ 63
Section 12.02. Satisfaction and Discharge of Indenture................. 63
Section 12.03. Defeasance upon Deposit of Moneys or U.S Government
Obligations.......................................... 64
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Section 12.04. Repayment to Company.................................... 66
Section 12.05. Indemnity for U.S. Government Obligations............... 66
Section 12.06. Deposits to Be Held in Escrow........................... 66
Section 12.07. Application of Trust Money.............................. 66
Section 12.08. Deposits of Non-U.S. Currencies......................... 67
ARTICLE XIII
IMMUNITY OF CERTAIN PERSONS
Section 13.01. No Personal Liability................................... 67
ARTICLE XIV
SUPPLEMENTAL INDENTURES
Section 14.01. Without Consent of Holders.............................. 68
Section 14.02. With Consent of Holders; Limitations.................... 69
Section 14.03. Trustee Protected....................................... 71
Section 14.04. Effect of Execution of Supplemental Indenture........... 72
Section 14.05. Notation on or Exchange of Securities................... 72
Section 14.06. Conformity with TIA..................................... 72
ARTICLE XV
GUARANTEE
Section 15.01. Unconditional Guarantee................................. 72
Section 15.02. Execution and Delivery of Guarantee..................... 74
Section 15.03. Waiver of Subrogation................................... 74
Section 15.04. Limitation on Liens..................................... 74
Section 15.05. Merger, Consolidation and Sale of Assets................ 75
Section 15.06. Assumption by Guarantor................................. 76
Section 15.07. Article Fifteen Applicable to Paying Agent.............. 76
Section 15.08. No Suspension of Remedies............................... 77
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ARTICLE XVI
MISCELLANEOUS PROVISIONS
Section 16.01. Consolidation, Merger, Sale or Lease.................... 77
Section 16.02. Certificates and Opinions as to Conditions Precedent.... 77
Section 16.03. Trust Indenture Act Controls............................ 78
Section 16.04. What Constitutes Action by Board of Directors........... 79
Section 16.05. Notices to the Company, Guarantor and Trustee........... 79
Section 16.06. Notices to Holders; Waiver.............................. 79
Section 16.07. Legal Holiday........................................... 80
Section 16.08. Effects of Headings and Table of Contents............... 80
Section 16.09. Successors and Assigns.................................. 80
Section 16.10. Separability Clause..................................... 80
Section 16.11. Benefits of Indenture................................... 80
Section 16.12. Counterparts Originals.................................. 81
Section 16.13. Governing Law........................................... 81
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INDENTURE dated as of June 1, 2005, among Citigroup Funding Inc., a
corporation organized and existing under the laws of the State of Delaware (the
"Company"), Citigroup Inc., a corporation organized and existing under the laws
of the State of Delaware, as guarantor (the "Guarantor"), and JPMorgan Chase
Bank, N.A., a national banking association, as trustee (the "Trustee").
WITNESSETH:
WHEREAS, the Company is authorized and empowered to borrow money for its
purposes and to issue its bonds, debentures, notes and other obligations for
money so borrowed; and
WHEREAS, the Company has duly authorized the issue, in one or more series
as in this Indenture provided, from time to time of its debt securities (the
"Securities") and, to provide the general terms and conditions upon which the
Securities are to be authenticated, issued and delivered, the Company has duly
authorized the execution and delivery of this Indenture;
WHEREAS, the Guarantor has duly authorized the full and unconditional
guarantee of the Securities, and to provide the general terms and conditions of
the Securities and the guarantee of same, the Guarantor has duly authorized the
execution and delivery of this Indenture;
WHEREAS, the Trustee has power to enter into this Indenture and to accept
and execute the trust herein created;
WHEREAS, each of the Company and the Guarantor jointly and severally
represents that all acts and things necessary to make the Securities, when
executed by the Company and authenticated and delivered by the Trustee as in
this Indenture provided, and issued, the valid, binding and legal obligation of
the Company, will, at the time of such execution, authentication and delivery,
have been done and performed, that all acts and things necessary to constitute
these presents a valid indenture and agreement according to its terms, have been
done and performed, that the execution of this Indenture has in all respects
been duly authorized and that the issue hereunder of the Securities will, at the
time of the issue thereof, have in all respects been duly authorized, and each
of the Company and the Guarantor, in the exercise of each and every legal right
and power in it vested, executes this Indenture and proposes to make, execute,
issue and deliver, in case of the Company, and guarantee, in the case of the
Guarantor, the Securities;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, for the benefit of the other parties and for the equal and
proportionate benefit of all of the present and future holders of the
Securities, each party agrees and covenants as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
(a) Unless otherwise defined in this Indenture or the context
otherwise requires, all terms used herein shall have the meanings assigned to
them in the Trust Indenture Act.
(b) Unless the context otherwise requires, the terms defined in this
Section 1.01(b) shall for all purposes of this Indenture have the meanings
hereinafter set forth, the following definitions to be equally applicable to
both the singular and the plural forms of any of the terms herein defined:
Affected Security:
The term "Affected Security" shall have the meaning specified in Section
4.02(b).
Affiliate:
The term "Affiliate," with respect to any specified Person shall mean any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
Authenticating Agent:
The term "Authenticating Agent" shall have the meaning assigned to it in
Section 11.09.
Authorized Newspaper:
The term "Authorized Newspaper" shall mean a newspaper in an official
language of the country of publication customarily published at least once a
day, and customarily published for at least five days in each calendar week, and
of general circulation in such city or cities specified pursuant to Section 3.01
with respect to the Securities of any series. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day in such city.
Bearer Security:
The term "Bearer Security" shall mean any Security (with or without
Coupons), title to which passes by delivery only, but does not include any
Coupons.
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Board of Directors:
The term "Board of Directors" shall mean either the board of directors of
the Company or the Guarantor, as applicable, or the executive or any other
committee of that board duly authorized to act in respect hereof.
Board Resolution:
The term "Board Resolution" shall mean a copy of a resolution or
resolutions certified by the Secretary or an Assistant Secretary of the Company
or the Guarantor, as applicable, to have been duly adopted by the Board of
Directors (or by the Finance Committee of the Board of Directors or any other
committee of the Board of Directors or committee of officers or other
representatives of the Company or the Guarantor, as applicable, to the extent
that any such other committee or committees have been authorized by the Board of
Directors to establish or approve the matters contemplated) and to be in full
force and effect on the date of such certification and delivered to the Trustee.
Business Day:
The term "Business Day," when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the
Securities, shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
other location are authorized or obligated by law or executive order to close.
Code:
The term "Code" shall mean the Internal Revenue Code of 1986 as in effect
on the date hereof.
Company:
The term "Company" shall mean Citigroup Funding Inc., a corporation
organized and existing under the laws of the State of Delaware and, subject to
the provisions of Section 16.01, shall also include its successors and assigns.
Company Order; Company Request:
The term "Company Order" or "Company Request" shall mean, respectively, a
written order or request signed in the name of the Company by the Chairman, the
President or a Vice President (any reference to a Vice President of the Company
herein shall be deemed to include any Vice President of the Company whether or
not designated by a number or word or words and before or after the title "Vice
President"), 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.
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Corporate Trust Office:
The term "Corporate Trust Office," or other similar term, shall mean the
principal office of the Trustee in the Borough of Manhattan, The City of New
York, at which at any particular time its corporate trust business shall be
administered, which office at the date hereof is located at 0 Xxx Xxxx Xxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: WSS/Trust Company - Global
Debt, or such other address as the Trustee may designate from time to time by
notice to the holders, the Company and the Guarantor, or the principal corporate
trust officer of any successor Trustee (or such other address as such successor
Trustee may designate from time to time by notice to the holders, the Company
and the Guarantor).
Coupon:
The term "Coupon" shall mean any interest coupon appertaining to any Bearer
Security.
Coupon Security:
The term "Coupon Security" shall mean any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
Currency:
The term "Currency" shall mean U.S. Dollars or Foreign Currency.
Default:
The term "Default" shall have the meaning assigned to it in Section 11.03.
Defaulted Interest:
The term "Defaulted Interest" shall have the same meaning assigned to it in
Section 3.08(e).
Depositary:
The term "Depositary" shall mean, with respect to the Securities of any
series issuable in whole or in part in the form of one or more Global
Securities, 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.
Discharged:
The term "Discharged" shall have the meaning assigned to it in Section
12.03.
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Event of Default:
The term "Event of Default" shall have the meaning specified in Section
7.01.
Exchange Act:
The term "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
Floating Rate Security:
The term "Floating Rate Security" shall mean a Security that provides for
the payment of interest at a variable rate determined periodically by reference
to an interest rate index specified pursuant to Section 3.01.
Foreign Currency:
The term "Foreign Currency" shall mean a currency issued by the government
of any country other than the United States or a composite currency, the value
of which is determined by reference to the values of the currencies of any group
of countries.
GAAP:
The term "GAAP", with respect to any computation required or permitted
hereunder, shall mean generally accepted accounting principles in effect in the
United States of America which are applicable at the date of such computation
and which are consistently applied for all applicable periods.
Global Security:
The term "Global Security" shall mean any Registered or Bearer Security
evidencing all or part of a series of Securities, issued in fully-registered
certificated form to the Depositary for such series in accordance with Section
3.03 and bearing the legend prescribed in Section 3.03(g).
Guarantee:
The term "Guarantee" shall mean the guarantee of the Company's obligations
under this Indenture and the Securities by the Guarantor pursuant to Article
Fifteen.
Guarantor:
The term "Guarantor" shall mean Citigroup Inc., a Delaware corporation, and
its successors and permitted assigns.
Indebtedness:
The term "Indebtedness" shall mean any and all obligations of a Person for
money borrowed which, in accordance with GAAP, would be reflected on the balance
sheet of such Person as a liability on the date as of which Indebtedness is to
be determined.
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Indenture:
The term "Indenture" or "this Indenture" shall mean this instrument and all
indentures supplemental thereto.
interest:
The term "interest" shall mean, with respect to an Original Issue Discount
Security that by its terms bears interest only after Maturity, interest payable
after Maturity, and, when used with respect to a Bearer Security, includes any
additional interest payable on such Bearer Security pursuant to Section 4.02 and
6.02.
Interest Payment Date:
The term "Interest Payment Date" shall mean, with respect to any Security,
the Stated Maturity of an installment of interest on such Security.
Mandatory Sinking Fund Payment:
The term "Mandatory Sinking Fund Payment" shall have the meaning assigned
to it in Section 5.01.
Maturity:
The term "Maturity," with respect to any Security, shall mean the date on
which the principal of such Security shall become due and payable as therein and
herein provided, whether by declaration, call for redemption or otherwise.
Members:
The term "Members" shall have the meaning assigned to it in Section
3.03(i).
Officers' Certificate:
The term "Officers' Certificate" when used (i) with respect to the Company,
shall mean a certificate signed by the Chairman, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary of the Company and (ii) with respect to the
Guarantor, shall mean a certificate signed by the Chairman, any Vice Chairman,
the President, any Vice President, the Chief Financial Officer, the Chief
Accounting Officer, the General Counsel, the Controller or any Deputy Controller
and by the Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Guarantor and, in each case, delivered to the Trustee. Each
such certificate shall include the statements provided for in Section 16.02 if
and to the extent required by the provisions of such Section. One of the
officers giving an Officers' Certificate pursuant to Section 6.08 shall be the
principal executive officer, principal financial officer or principal accounting
officer of the Company.
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Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel, who may be an employee of or of counsel to the Company or
Guarantor, or may be other counsel satisfactory to the Trustee. Each such
opinion shall include the statements provided for in Section 16.02 if and to the
extent required by the provisions of such Section.
Optional Sinking Fund Payment:
The term "Optional Sinking Fund Payment" shall have the meaning assigned to
it in Section 5.01.
Original Issue Discount Security:
The term "Original Issue Discount Security" shall mean any Security that is
issued with "original issue discount" within the meaning of Section 1273(a) of
the Code and the regulations thereunder and any other Security designated by the
Company as issued with original issue discount for United States federal income
tax purposes.
Outstanding:
The term "Outstanding," when used with respect to Securities means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities or portions thereof for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the holders of such Securities or from its obligations
with respect to which the Company shall have been Discharged; provided,
however, that if such Securities or portions thereof 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
(iii) Securities that have been paid pursuant to Section 3.07 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a protected purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the holders of the requisite
principal amount of Securities Outstanding have performed any action hereunder,
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such action, only Securities that a
Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned that
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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 to act with
respect to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor. In determining whether the holders of the requisite principal amount of
Outstanding Securities have performed any action hereunder, the principal amount
of an Original Issue Discount Security that shall be deemed to be Outstanding
for such purpose 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 the principal
amount of a Security denominated in a Foreign Currency that shall be deemed to
be Outstanding for such purpose shall be the amount calculated pursuant to
Section 3.11(c).
Paying Agent:
The term "Paying Agent" shall mean any Person authorized by the Company to
pay the principal of and premium, if any, or interest on any Securities or to
pay Coupons on behalf of the Company.
Person:
The term "Person" shall mean an individual, a corporation, a limited
liability company, a partnership, an association, a joint stock company, a
trust, an unincorporated organization or a government or an agency or political
subdivision thereof.
Place of Payment:
The term "Place of Payment" shall mean, when used with respect to the
Securities of any series, the place or places where the principal of and
premium, if any, and interest on the Securities of that series are payable as
specified pursuant to Section 3.01.
Predecessor Security:
The term "Predecessor Security" shall mean, with respect to any Security,
every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security, and, for the purposes of this definition,
any Security authenticated and delivered under Section 3.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
Record Date:
The term "Record Date" shall mean, with respect to any interest payable on
any Registered Security on any Interest Payment Date, the close of business on
the date specified in such Registered Security for the payment of interest
pursuant to Section 3.01.
Redemption Date:
The term "Redemption Date" shall mean, when used with respect to any
Security to be redeemed, in whole or in part, the date fixed for such redemption
by or pursuant to this Indenture and the terms of such Security, which, in the
case of a Floating Rate Security, unless otherwise specified pursuant to Section
3.01, shall be an Interest Payment Date only.
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Redemption Price:
The term "Redemption Price" shall mean, in the case of an Original Issue
Discount Security, the amount of the principal and interest that would be due
and payable as of the Redemption Date upon a declaration of acceleration of the
Maturity thereof pursuant to Section 7.02 and, in the case of any other
Security, the principal amount thereof, plus, in each case, premium, if any, and
accrued and unpaid interest, if any, to the Redemption Date.
Register:
The term "Register" shall have the meaning assigned to it in Section
3.05(a).
Registrar:
The term "Registrar" shall have the meaning assigned to it in Section 3.05.
Registered Security:
The term "Registered Security" shall mean any Security registered as to
principal and interest in the Register.
Responsible Officers:
The term "Responsible Officers" of the Trustee hereunder shall mean any
vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, any trust officer, any assistant trust officer or any other
officer associated with the corporate trust department 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 such
person's knowledge of and familiarity with the particular subject and, in the
case of any such officer, who shall have direct responsibility for the
administration of this Indenture.
SEC:
The term "SEC" shall mean the U.S. Securities and Exchange Commission.
Securities Act:
The term "Securities Act" shall mean the Securities Act of 1933, as
amended.
Security:
The term "Security" shall mean one of the Securities duly authenticated by
the Trustee and delivered pursuant to the provisions of this Indenture.
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Security Custodian:
The term "Security Custodian" shall mean the custodian with respect to any
Global Security appointed by the Depositary, or any successor Person thereto,
and shall initially be the Paying Agent.
Securityholder; holder of Securities;
holder; registered holder:
The term "Securityholder" or "holder of Securities" or "holder" or
"registered holder," with respect to a Registered Security, shall mean the
Person in whose name such Securities shall be registered in the Register kept
for that purpose hereunder and, with respect to a Bearer Security or Coupon, the
bearer thereof.
Significant Subsidiary:
The term "Significant Subsidiary" shall have the meaning assigned to it in
Section 15.04.
Special Record Date:
The term "Special Record Date" shall have the meaning assigned to it in
Section 3.08(e)(i).
Stated Maturity:
The term "Stated Maturity" when used with respect to any Security or any
installment of interest thereon, shall mean the date specified in such Security
or the Coupons, if any, as the fixed date on which the principal (or any portion
thereof) of or premium, if any, on such Security or such installment of interest
is due and payable.
Subsidiary:
The term "Subsidiary," when used with respect to any Person, shall mean any
corporation or other entity of which a majority of (a) the voting power of the
voting equity securities or (b) in the case of a partnership or any other entity
other than a corporation, the outstanding equity interests of which are owned,
directly or indirectly, by such Person. For the purposes of this definition,
"voting equity securities" means equity securities having voting power for the
election of directors, whether at all times or only so long as no senior class
of securities has such voting power by reason of any contingency.
Successor Company:
The term "Successor Company" shall have the meaning assigned to it in
Section 3.06(j).
Trust Indenture Act; TIA:
The term "Trust Indenture Act" or "TIA" shall mean the Trust Indenture Act
of 1939, as amended, except as otherwise provided in this Indenture.
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Trustee:
The term "Trustee" shall mean the trustee hereunder for the time being,
whether original or successor, and if at any time there is more than one such
trustee, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to Securities of that series.
U.S. Dollars:
The term "U.S. Dollars" shall mean such currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
U.S. Government Obligations:
The term "U.S. Government Obligations" shall mean either (i) direct
obligations of the United States of America or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America, the payment of which is unconditionally guaranteed by
the full faith and credit of the United States of America.
United States:
The term "United States" shall mean the United States of America (including
the States and the District of Columbia), its territories and its possessions
and other areas subject to its jurisdiction.
United States Alien:
The term "United States Alien" shall mean any Person who, for United States
federal income tax purposes, is a foreign corporation, a nonresident alien
individual, a nonresident alien fiduciary of a foreign estate or trust, or a
foreign partnership, one or more members of which is, for United States federal
income tax purposes, a foreign corporation, a nonresident alien individual or a
nonresident alien fiduciary of a foreign estate or trust.
Voting Stock:
The term "Voting Stock" shall have the meaning specified in Section 15.04.
Certain other terms, relating principally to provisions included in this
Indenture in compliance with the Trust Indenture Act, are defined in Article
Eleven.
ARTICLE II
FORMS OF SECURITIES
SECTION 2.01. Terms of the Securities.
(a) The Securities and the Coupons, if any, of each series shall be
substantially in one of the forms established by or pursuant to a Board
Resolution and set forth in an Officers' Certificate or in one or more
indentures supplemental hereto, and shall have such
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appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements
placed thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Indenture, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which any series of the Securities may
be listed or of any automated quotation system on which any such series may be
quoted, or to conform to usage, all as determined by the officers executing such
Securities and Coupons as conclusively evidenced by their execution of such
Securities and Coupons. If the form of a series of Securities is established in
or pursuant to a Board Resolution, a copy of such Board Resolution shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the form of such series.
(b) The terms and provisions of the Securities shall constitute, and
are hereby expressly made, a part of this Indenture, and, to the extent
applicable, the Company, the Guarantor and the Trustee, by their execution and
delivery of this Indenture expressly agree to such terms and provisions and to
be bound thereby.
SECTION 2.02. Form of Bearer Security.
(a) Each Bearer Security and Coupon shall bear a legend substantially
to the following effect:
"Any United States Person who holds this obligation will be subject to
limitations under the United States income tax laws, including the
limitations provided in Sections 165(j) and 1278(a) of the Internal Revenue
Code."
(b) The definitive Securities and Coupons, if any, of each series
shall be printed, lithographed or engraved or produced by any combination of
these methods on steel engraved borders or may be produced in any other manner,
provided that such manner is permitted by the rules of any securities exchange
on which such series of Securities may be listed or of any automated quotation
system on which such series may be quoted, all as determined by the officers
executing such Securities and Coupons, as conclusively evidenced by their
execution of such Securities and Coupons.
SECTION 2.03. Form of Trustee's Certificate of Authentication.
(a) Only such of the Securities as shall bear thereon a certificate
substantially in the form of the Trustee's certificate of authentication
hereinafter recited, executed by the Trustee by manual signature, shall be valid
or become obligatory for any purpose or entitle the holder thereof to any right
or benefit under this Indenture, and the certificate of authentication by the
Trustee upon any such Security executed on behalf of the Company as aforesaid
shall be conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the holder thereof is entitled to
the benefits of this Indenture.
(b) Each Security shall be dated the date of its authentication,
except that any Global Security shall be dated as of the date specified as
contemplated in Section 3.01.
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(c) The form of the Trustee's certificate of authentication to be
borne by the Securities shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued referred to in the
within-mentioned Indenture.
JPMorgan Chase Bank, N.A., as Trustee
By:
---------------------------------
Authorized Officer
SECTION 2.04. Form of Trustee's Certificate of Authentication by an
Authenticating Agent. If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the Trustee's
Certificate of Authentication by such Authenticating Agent to be borne by
Securities of each such series shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued referred to in the
within-mentioned Indenture.
JPMorgan Chase Bank, N.A., as Trustee
By:
---------------------------------
Authorized Officer
ARTICLE III
THE DEBT SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more series.
There shall be established by or pursuant to a Board Resolution of the Company,
and set forth in an Officers' Certificate of the Company, or established in one
or more indentures supplemental hereto, prior to the issuance of Securities of
any series:
(a) the title of the Securities of the series (which shall distinguish
the Securities of such series from the Securities of all other series, except to
the extent that additional Securities of an existing series are being issued);
(b) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture (except
for Securities
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authenticated and delivered upon transfer of, or in exchange for, or in lieu of,
other Securities of such series pursuant to Section 3.04, 3.06, 3.07, 4.07, or
14.05);
(c) the dates on which or periods during which the Securities of the
series may be issued, and the dates on, or the range of dates within, which the
principal of and premium, if any, on the Securities and Coupons, if any, of such
series are or may be payable;
(d) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be determined,
the date or dates from which such interest shall accrue, or the method by which
such date or dates shall be determined, the Interest Payment Dates on which any
such interest shall be payable, and, in the case of Registered Securities, the
Record Dates for the determination of holders to whom interest is payable on
such Interest Payment Dates;
(e) if other than U.S. Dollars, the Currency in which Securities of
the series shall be denominated or in which payment of the principal of,
premium, if any, or interest on the Securities of the series shall be payable
and any other terms concerning such payment;
(f) if the amount of payment of principal of, premium, if any, or
interest on the Securities of the series may be determined with reference to an
index, formula or other method including, but not limited to, an index based on
a Currency or Currencies other than that in which the Securities are stated to
be payable, the manner in which such amounts shall be determined;
(g) if the principal of, premium, if any, or interest on Securities of
the series are to be payable, at the election of the Company or a holder
thereof, in a Currency other than that in which the Securities are denominated
or stated to be payable without such election, the period or periods within
which, and the terms and conditions upon which such election may be made and the
time and the manner of determining the exchange rate between the Currency in
which the Securities are denominated or payable without such election and the
Currency in which the Securities are to be paid if such election is made;
(h) the place or places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee (in the case of Registered Securities) or
the principal London office of the Trustee (in the case of Bearer Securities)
where the principal of, premium, if any, and interest on Securities of the
series shall be payable;
(i) the price or prices at which, the period or periods within which
or the date or dates on which, and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the option of
the Company, if the Company is to have that option;
(j) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and the price or prices at
which, the period or periods within which or the date or dates on which, and the
terms and conditions upon which Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
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(k) if other than denominations of $1,000 or any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(l) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 7.02;
(m) whether the Securities of the series are to be issued as Original
Issue Discount Securities and the amount of discount with which such Securities
may be issued;
(n) provisions, if any, for the defeasance of Securities of the
series;
(o) whether the Securities of the series are to be issued in whole or
in part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Securities and the terms and conditions,
if any, upon which interests in such Global Security or Securities may be
exchanged in whole or in part for the individual Securities represented thereby;
(p) whether Securities of the series are to be issued as Registered
Securities or Bearer Securities or both, and, if Bearer Securities are issued,
whether Coupons will be attached thereto, whether Bearer Securities of the
series may be exchanged for Registered Securities of the series and the
circumstances under which and the places at which any such exchanges, if
permitted, may be made;
(q) if any Securities of the series are to be issued as Bearer
Securities or as one or more Global Securities representing individual Bearer
Securities of the series, (i) whether the provisions of Sections 4.02 and 6.02
or other provisions for payment of additional interest or tax redemption shall
apply and, if other provisions shall apply, such other provisions; (ii) whether
interest in respect of any portion of a temporary Bearer Security of the series
(delivered pursuant to Section 3.04) payable in respect of any Interest Payment
Date prior to the exchange of such temporary Bearer Security for definitive
Bearer Securities of the series shall be paid to any clearing organization with
respect to the portion of such temporary Bearer Security held for its account
and, in such event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by a clearing
organization will be credited to the Persons entitled to interest payable on
such Interest Payment Date; and (iii) the terms upon which a temporary Bearer
Security may be exchanged for one or more definitive Bearer Securities of the
series;
(r) the date as of which any Global Security of the series shall be
dated if other than the original issuance of the first Security of the series to
be issued;
(s) the form of the Securities of the series; and
(t) any other terms of the Securities of the series, including Events
of Default and/or additional covenants of the Company and/or the Guarantor
(which terms shall not be inconsistent with the requirements of the Trust
Indenture Act or the provisions of this Indenture).
15
All Securities of any one series and the Coupons, if any, appertaining thereto
shall be substantially identical, except as to denomination and except as may
otherwise be provided by or pursuant to such Board Resolution, and set forth in
such Officers' Certificate, or in any such indenture supplemental hereto. If any
of the terms of a series of Securities are established by action taken to a
Board Resolution, a copy of such Board Resolution shall be delivered to the
Trustee at or prior to the delivery of the Officers' Certificate setting forth
the terms of such series.
SECTION 3.02. Denominations. In the absence of any specification
pursuant to Section 3.01 with respect to Securities of any series, the
Securities of such series shall be issuable only as Registered Securities in
denominations of any integral multiple of $1,000, and shall be payable only in
U.S. Dollars.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
(a) The Securities and the Coupons, if any, shall be executed in the
name and on behalf of the Company by the manual or facsimile signature of its
Chairman of the Board of Directors, a Vice Chairman, its President or one of its
Vice Presidents, under its corporate seal (which may be printed, engraved or
otherwise reproduced thereon, by facsimile or otherwise), which shall be
attested by the manual or facsimile signature of its Secretary or one of its
Assistant Secretaries. If the Person whose signature is on a Security or Coupon,
if any, no longer holds that office at the time the Security or Coupon, if any,
is authenticated and delivered, the Security and Coupon, if any, shall
nevertheless be valid.
(b) At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities, with appropriate Coupons,
if any, of any series, executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities and Coupons. The Trustee shall thereupon
authenticate and deliver such Securities and Coupons without any further action
by the Company. The Company Order shall specify the amount of the Securities
(and Coupons) to be authenticated and the date on which the original issue of
Securities (and Coupons) is to be authenticated.
(c) In authenticating the first Securities and Coupons, if any, of any
series and accepting the additional responsibilities under this Indenture in
relation to such Securities and Coupons, if any, the Trustee shall receive, and
(subject to Section 11.02) shall be fully protected in relying upon:
(i) the supplemental indenture or Board Resolution relating thereto
and, if applicable, an appropriate record of any action taken pursuant to
such supplemental indenture or resolution, certified by the Secretary or an
Assistant Secretary of the Company;
(ii) an Officer's Certificate of the Company and the Guarantor as to
the absence of any event that is, or after notice or lapse of time or both
would become, an Event of Default; and
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(iii) an Opinion of Counsel prepared in accordance with Section 16.02,
which shall state:
(A) that the form and terms of such Securities have been established
by or pursuant to one or more Board Resolutions, by a supplemental
indenture as permitted by Section 14.01(m), or by both such resolution or
resolutions and such supplemental indenture, in conformity with the
provisions of this Indenture;
(B) that the supplemental indenture, if any, when executed and
delivered by the Company, the Guarantor and the Trustee, will constitute a
valid and legally binding obligation of each of the Company and the
Guarantor;
(C) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, and will be entitled to the benefits of this Indenture;
(D) that the Company has the corporate power to issue the Securities,
and has duly taken all necessary action with respect to such issuance;
(E) that the Guarantor has the corporate power to guarantee the
Securities, and has duly taken all necessary action with respect to such
guarantee;
(F) that the issuance of the Securities will not contravene the
certificate of incorporation or By-laws of the Company or the Guarantor or
result in any violation of any of the terms or provisions of any law or
regulation or of any indenture, mortgage or other agreement by which the
Company or the Guarantor is bound and, with respect to the Guarantor, under
which long-term debt of the Guarantor as reflected in its latest financial
statements on file with the SEC is outstanding;
(G) that all requirements of the Indenture applicable to the Company
in respect of the execution and delivery by the Company of the Securities
and applicable to the Guarantor in respect of the Guarantee and of such
supplemental indenture, if any, have been complied with and, that assuming
(a) all requisite corporate authorization on the part of the Trustee, (b)
continued compliance by the Trustee with the terms of the Indenture
specifically applicable to the Trustee, and (c) due authentication and
delivery of the Securities by the Trustee, the execution and delivery of
such supplemental indenture, if any, will not violate the terms of this
Indenture, and that, other than compliance with federal and state
securities laws, no authorization, approval or consent by any regulatory or
statutory or other public authority is required in connection with the
execution and delivery of such supplemental indenture or for the creation,
issuance, authentication and delivery of the Securities pursuant to the
Indenture;
(H) all conditions precedent provided for in the Indenture (including
any covenants compliance with which constitutes a condition precedent) to
the Trustee's authentication and delivery of the Securities have been
complied with; and
17
(I) the amount of Securities Outstanding of such series, together with
the amount of such Securities, does not exceed any limit established under
the terms of this Indenture on the amount of Securities of such series that
may be authenticated and delivered.
(d) The Trustee shall have the right to decline to authenticate and
deliver the Securities under this Section if the issue of the Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
(e) Each Security shall be dated the date of its authentication,
except as otherwise provided pursuant to Section 3.01 with respect to the
Securities of such series.
(f) Notwithstanding the provisions of Section 3.01 and of this Section
3.03, if all of the Securities of any series are not to be originally issued at
the same time, then the documents required to be delivered pursuant to this
Section 3.03 must be delivered only once, prior to the authentication and
delivery of the first Security of such series; provided, however, that any
subsequent request by the Company to the Trustee to authenticate Securities of
such series upon original issuance shall constitute a representation and
warranty by the Company and the Guarantor that, as of the date of such request,
the statements made in any Officers' Certificate delivered pursuant to this
Section 3.03 shall be true and correct as if made on such date.
(g) If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall
authenticate and deliver one or more Global Securities that (i) shall represent
an aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by such Global Securities, (ii)
shall be registered, if in registered form, in the name of the Depositary for
such Global Security or Securities or the nominee of such Depositary, (iii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for the
individual Securities represented hereby, this Global Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary." The aggregate principal amount of each
Global Security may from time to time be increased or decreased by adjustments
made on the records of the Security Custodian, as provided in this Indenture.
(h) Each Depositary designated pursuant to Section 3.01 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as such Depositary, be a clearing agency registered under
the Exchange Act and any other applicable statute or regulation.
(i) Members of, or participants in, the Depositary ("Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary or by the Security Custodian under such Global
Security, and the Depositary may be treated by the Company, the Guarantor, the
Trustee, the Paying Agent and the Registrar and any of their agents as the
absolute owner of such Global Security for all purposes whatsoever.
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Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Guarantor, the Trustee, the Paying Agent or the Registrar or any of their agents
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its
Members, the operation of customary practices of the Depositary governing the
exercise of the rights of an owner of a beneficial interest in any Global
Security. The registered holder of a Global Security may grant proxies and
otherwise authorize any Person, including Members and Persons that may hold
interests through Members, to take any action that a holder is entitled to take
under this Indenture or the Securities.
(j) No Security or Coupon appertaining thereto 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 one of the forms provided for herein duly executed by the
Trustee or by an Authenticating Agent by manual signature of one of its
Responsible Officers, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security (and any Coupons
appertaining thereto) has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture. Except as permitted by Section 3.05,
3.07 or 3.08, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant Coupons then matured have been cleared and canceled.
SECTION 3.04. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities that are printed, lithographed, typewritten,
mimeographed or otherwise reproduced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more Coupons or without Coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities and Coupons, if any, may determine, as conclusively evidenced by
their execution of such Securities and Coupons. Any such temporary Security may
be in global form, representing all or a portion of the Outstanding Securities
of such series. Every such temporary Security shall be executed by the Company
and shall be authenticated and delivered by the Trustee upon the same conditions
and in substantially the same manner, and with the same effect, as the
definitive Security or Securities in lieu of which it is issued.
(b) If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. Except as otherwise specified as contemplated by Section 3.01(q)(iii)
with respect to a series of Securities issuable as Bearer Securities or as one
or more Global Securities representing individual Bearer Securities of the
series, (a) after the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of such temporary Securities at the
office or agency of the Company in a Place of Payment for such series, without
charge to the holder, except as provided in Section 3.06 and except that a
Person receiving definitive Bearer Securities shall bear the cost of insurance,
postage, transportation and the like unless otherwise specified pursuant to
Section 3.01, and (b) upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured Coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
19
definitive Securities of the same series of authorized denominations and of like
tenor; provided, however, that no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and provided, further, that
delivery of a Global Security representing individual Bearer Securities or a
Bearer Security shall occur only outside the United States. Until so exchanged,
the temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series,
except as otherwise specified as contemplated by Section 3.01(q)(ii) with
respect to the payment of interest on Global Securities in temporary form.
(c) Unless otherwise specified pursuant to Section 3.01, the Company
will execute and deliver each definitive Global Security representing individual
Bearer Securities and each Bearer Security to the Trustee at its principal
office in London or such other place outside the United States specified
pursuant to Section 3.01.
(d) Upon any exchange of a portion of a temporary Global Security for
a definitive Global Security or for the individual Securities represented
thereby pursuant to this Section 3.04 or Section 3.06, the temporary Global
Security shall be endorsed by the Trustee to reflect the reduction of the
principal amount evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by the amount so
exchanged and endorsed.
SECTION 3.05. Registrar and Paying Agent.
(a) The Company will keep, at an office or agency to be maintained by
it in the Borough of Manhattan, the City of New York, or in any other office or
agency of the Company in a Place of Payment, where Registered Securities may be
presented for registration or presented and surrendered for registration of
transfer or of exchange (the "Registrar"), a security register for the
registration and the registration of transfer or of exchange of the Registered
Securities (the registers maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Register"), as in this Indenture provided, which Register
shall at all reasonable times be open for inspection by the Trustee. Such
Register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. The Company may have one
or more co-Registrars; the term "Registrar" includes any co-registrar.
(b) The Company shall enter into an appropriate agency agreement with
any Registrar or co-Registrar not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such agent. The
Company shall notify the Trustee of the name and address of each such agent. If
the Company fails to maintain a Registrar, the Trustee shall act as such and
shall be entitled to appropriate compensation therefor pursuant to Section
11.01. The Company, the Guarantor, or any Affiliate of the Company or the
Guarantor may act as Registrar, co-Registrar or transfer agent.
(c) The Company hereby appoints the Trustee at its Corporate Trust
Office as Registrar in connection with the Securities and this Indenture, until
such time as another Person is appointed as such.
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SECTION 3.06. Transfer and Exchange.
(a) Transfer.
(i) Upon surrender for registration of transfer of any Registered
Security of any series at the Registrar the Company shall execute, and the
Trustee or any Authenticating Agent shall authenticate and deliver, in the
name of the designated transferee, one or more new Registered Securities of
the same series for like aggregate principal amount of any authorized
denomination or denominations. The transfer of any Security shall not be
valid as against the Company, the Guarantor or the Trustee unless
registered at the Registrar by the registered holder, or by his or her
attorney duly authorized in writing. Except as otherwise specified pursuant
to Section 3.01, in no event may Registered Securities, including
Registered Securities received in exchange for Bearer Securities, be
exchanged for Bearer Securities.
(ii) Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for the individual Securities
represented thereby, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such Depositary
or by such Depositary or any such nominee to a successor Depositary for
such series or a nominee of such successor Depositary.
(b) Exchange.
(i) At the option of the holder, Registered Securities of any series
(other than a Global Security, except as set forth below) may be exchanged
for other Registered Securities of the same series for like aggregate
principal amount of any authorized denomination or denominations, upon
surrender of the Registered Securities to be exchanged at the Registrar.
(ii) At the option of the holder, except as otherwise specified as
contemplated by Section 3.01(o) or 3.01(q) with respect to a Global
Security representing Bearer Securities, Bearer Securities of any series
may be exchanged for Registered Securities (if the Securities of such
series are issuable as Registered Securities) or Bearer Securities of the
same series, for like aggregate principal amount of any authorized
denomination or denominations, upon surrender of the Bearer Securities to
be exchanged at the office or agency of the Company maintained for such
purpose, with all unmatured Coupons and all matured Coupons in Default
thereto appertaining; provided, however, that delivery of a Bearer Security
shall occur only outside the United States. If the holder of a Bearer
Security is unable to produce any such unmatured Coupon or Coupons or
matured Coupon or Coupons in Default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the
Company and the Trustee in an amount equal to the face amount of such
missing Coupon or Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Company and the Trustee if there be furnished
to them such security or indemnity as they may require to save each of them
and any Paying Agent harmless. If thereafter the holder of such Bearer
Security shall surrender to any Paying Agent any such missing Coupon in
respect of which such a
21
payment shall have been made, such holder shall be entitled to receive the
amount of such payment; provided, however, that, except as otherwise
provided in Section 3.08, interest represented by Coupons shall be payable
only upon presentation and surrender of those Coupons at an office or
agency located outside the United States.
(iii) Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities that the holder making the exchange is entitled to receive.
(iv) Notwithstanding the foregoing, the exchange of Bearer Securities
for Registered Securities will be subject to the provisions of United
States income tax laws and regulations applicable to Securities in effect
at the time of such exchange.
(c) Exchange of Global Securities for Individual Securities. Except as
provided below, owners of beneficial interests in Global Securities will not be
entitled to receive individual Securities.
(i) Individual Securities shall be issued to all owners of beneficial
interests in a Global Security in exchange for such interests if:
(A) at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for
the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 3.03(h)
and, in each case, a successor Depositary is not appointed by the Company
within 90 days of such notice, or
(B) the Company executes and delivers to the Trustee and the Registrar
an Officers' Certificate stating that such Global Security shall be so
exchangeable.
In connection with the exchange of an entire Global Security for individual
Securities pursuant to this subsection (c), such Global Security shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of individual Securities of such series, will authenticate and
deliver to each beneficial owner identified by the Depositary in exchange for
its beneficial interest in such Global Security, an equal aggregate principal
amount of individual Securities of authorized denominations.
(ii) The owner of a beneficial interest in a Global Security will be
entitled to receive an individual Security in exchange for such interest if
an Event of Default has occurred and is continuing. Upon receipt by the
Security Custodian and Registrar of instructions from the holder of a
Global Security directing the Security Custodian and Registrar to (x) issue
one or more individual Securities in the amounts specified to the owner of
a beneficial interest in such Global Security and (y) debit or cause to be
debited an equivalent amount of beneficial interest in such Global
Security, subject to the rules and regulations of the Depositary:
22
(A) the Security Custodian and Registrar shall notify the Company and
the Trustee of such instructions, identifying the owner and amount of such
beneficial interest in such Global Security;
(B) the Company shall promptly execute and the Trustee, upon receipt
of a Company Order for the authentication and delivery of individual
Securities of such series, shall authenticate and deliver to such
beneficial owner individual Securities in an equivalent amount to such
beneficial interest in such Global Security; and
(C) the Security Custodian and Registrar shall decrease such Global
Security by such amount in accordance with the foregoing.
In the event that the individual Securities are not issued to each such
beneficial owner promptly after the Registrar has received a request from the
holder of a Global Security to issue such individual Securities, the Company
expressly acknowledges, with respect to the right of any holder to pursue a
remedy pursuant to Section 7.07 hereof, the right of any beneficial holder of
Securities to pursue such remedy with respect to the portion of the Global
Security that represents such beneficial holder's Securities as if such
individual Securities had been issued.
(iii) 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 individual Securities of such series on
such terms as are acceptable to the Company and such Depositary. Thereupon,
the Company shall execute, and the Trustee shall authenticate and deliver,
without service charge,
(A) to each Person specified by such Depositary a new individual
Security or Securities of the same series, of any authorized denomination
as requested by such Person in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Global Security; and
(B) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of individual Securities
delivered to holders thereof.
(iv) In any exchange provided for in clauses (i) through (iii), the
Company will execute and the Trustee will authenticate and deliver
individual Securities (a) in registered form in authorized denominations,
if the Securities of such series are issuable as Registered Securities, (b)
in bearer form in authorized denominations, with or without Coupons
attached, if the Securities of such series are issuable as Bearer
Securities or (c) as either Registered or Bearer Securities, if the
Securities of such series are issuable in either form; provided, however,
that individual Bearer Securities shall be delivered in exchange for a
Global Security only in accordance with the procedures specified pursuant
to Section 3.01.
(v) Upon the exchange in full of a Global Security for individual
Securities, such Global Security shall be canceled by the Trustee.
Individual Registered Securities issued in exchange for a Global Security
pursuant to this Section shall be registered in
23
such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Registered Securities to the Persons in whose names such
Registered Securities are so registered. The Trustee shall deliver
individual Bearer Securities issued in exchange for a Global Security
pursuant to this Section to the Persons and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee; provided, however, that individual Bearer Securities
shall be delivered in exchange for a Global Security only in accordance
with the procedures as may be specified pursuant to Section 3.01.
(d) Notwithstanding the foregoing, the exchange of Bearer Securities
for Registered Securities will be subject to the provisions of United States
income tax laws and regulations applicable to Securities in effect at the time
of such exchange.
(e) All Securities issued upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company (and, as with
respect to the Guarantee, the Guarantor) evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered for
such registration of transfer or exchange.
(f) Every Registered Security presented or surrendered for
registration of transfer, or for exchange or payment shall (if so required by
the Company, the Trustee or the Registrar) be duly endorsed, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Company, the Trustee and the Registrar, duly executed by the holder thereof or
by his or her attorney duly authorized in writing.
(g) No service charge will be made for any registration of transfer or
exchange of Securities except as provided in Section 3.04(b) or 3.07. The
Company may require payment of a sum sufficient to cover any tax, assessment or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than those expressly
provided in this Indenture to be made at the Company's own expense or without
expense or charge to the holders.
(h) The Company shall not be required to (i) register, transfer or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the transmission of a notice of redemption of
Securities of such series selected for redemption under Section 4.03 and ending
at the close of business on the day of such transmission, or (ii) register,
transfer or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part;
provided, however, that, if specified pursuant to Section 4.02, any Bearer
Securities of any series that are exchangeable for Registered Securities and
that are called for redemption pursuant to Section 4.02 may, to the extent
permitted by applicable law, be exchanged for one or more Registered Securities
of such series during the period preceding the Redemption Date.
(i) Prior to the due presentation for registration of transfer or
exchange of any Security, the Company, the Guarantor, the Trustee, the Paying
Agent, the Registrar or any co-Registrar may deem and treat the Person in whose
name a Security is registered as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any
24
notation of ownership or other writing thereon) for all purposes whatsoever, and
none of the Company, the Guarantor, the Trustee, the Paying Agent, the Registrar
or any co-Registrar shall be affected by any notice to the contrary.
(j) In case a successor Company ("Successor Company") has executed an
indenture supplemental hereto with the Trustee pursuant to Article Fourteen, any
of the Securities authenticated or delivered pursuant to such transaction may,
from time to time, at the request of the Successor Company, be exchanged for
other Securities executed in the name of the Successor Company with such changes
in phraseology and form as may be appropriate, but otherwise identical to the
Securities surrendered for such exchange and of like principal amount; and the
Trustee, upon Company Order of the Successor Company, shall authenticate and
deliver Securities as specified in such order for the purpose of such exchange.
If Securities shall at any time be authenticated and delivered in any new name
of a Successor Company pursuant to this Section 3.06 in exchange or substitution
for or upon registration of transfer of any Securities, such Successor Company,
at the option of the holders but without expense to them, shall provide for the
exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
(k) Each holder of a Security agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such holder's Security in violation of any provision of this
Indenture and/or applicable United States federal or state securities laws.
(l) The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
(m) Neither the Trustee nor any agent of the Trustee shall have any
responsibility for any actions taken or not taken by the Depositary.
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen Securities.
(a) If (i) any mutilated Security or any mutilated Coupon with the
Coupon Security to which it appertains (and all unmatured Coupons attached
thereto) is surrendered to the Trustee at its Corporate Trust Office (in the
case of Registered Securities) or at its principal London office (in the case of
Bearer Securities) or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security or any Coupon,
and there is delivered to the Company and the Trustee security or indemnity
satisfactory to them to save each of them and any Paying Agent harmless, and
neither the Company nor the Trustee receives notice that such Security or Coupon
has been acquired by a protected purchaser, then the Company shall execute and
upon Company Request the Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Security or in
exchange for the Coupon Security to which such mutilated, destroyed, lost or
stolen Coupon appertains, a new Security of the same series and of like tenor,
form, terms and principal amount, bearing a number not contemporaneously
Outstanding, and, in the case of a Coupon Security,
25
with such Coupons attached thereto that neither gain nor loss in interest shall
result from such exchange or substitution.
(b) 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 the amount due on such
Security or Coupon in accordance with its terms; provided, however, that payment
of principal and premium, if any, and any interest on Bearer Securities or
payment of Coupons shall, except as otherwise provided in Section 3.08, be
payable only at an office or agency located outside the United States.
(c) 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 respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
(d) Every new Security of any series, with its Coupons, if any, issued
pursuant to this Section 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 enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities of that series and their Coupons, if any, duly issued
hereunder.
(e) The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
Coupons.
SECTION 3.08. Payment of Interest; Interest Rights Preserved.
(a) Interest on any Registered Security that is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Record Date for such
interest notwithstanding the cancellation of such Registered Security upon any
transfer or exchange subsequent to the Record Date. In case a Coupon Security of
any series is surrendered in exchange for a Registered Security of such series
after the close of business (at an office or agency in a Place of Payment for
such series) on any Record Date and before the opening of business (at such
office or agency) on the next succeeding Interest Payment Date, such Coupon
Security shall be surrendered without the Coupon relating to such Interest
Payment Date and interest will not be payable on such Interest Payment Date in
respect of the Registered Security issued in exchange for such Coupon Security,
but will be payable only to the bearer of such Coupon when due in accordance
with the provisions of this Indenture. Payment of interest on Registered
Securities shall be made at the Corporate Trust Office (except as otherwise
specified pursuant to Section 3.01) or, at the option of the Company, by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Register or, if provided pursuant to Section 3.01 and in
accordance with arrangements satisfactory to the Trustee, at the option of the
Registered Holder by wire transfer to an account designated by the Registered
Holder.
(b) Interest on any Coupon Security that is payable and is punctually
paid or duly provided for on any Interest Payment Date shall be paid to the
holder of the Coupon that has
26
matured on such Interest Payment Date upon surrender of such Coupon on such
Interest Payment Date at the principal London office of the Trustee or at such
other Place of Payment outside the United States specified pursuant to Section
3.01.
(c) Interest on any Bearer Security (other than a Coupon Security)
that is payable and is punctually paid or duly provided for on any Interest
Payment Date shall be paid to the holder of the Bearer Security upon
presentation of such Bearer Security and notation thereon on such Interest
Payment Date at the principal London office of the Trustee or at such other
Place of Payment outside the United States specified pursuant to Section 3.01.
(d) Unless otherwise specified pursuant to Section 3.01, at the
direction of the holder of any Bearer Security or Coupon payable in U.S.
Dollars, and subject to applicable laws and regulations, payments in respect of
such Bearer Security or Coupon will be made by check drawn on a bank in the City
of New York or, in accordance with arrangements satisfactory to the Trustee, by
wire transfer to a U.S. Dollars account maintained by such holder with a bank
outside the United States. If such payment at the offices of all Paying Agents
outside the United States becomes illegal or is effectively precluded because of
the imposition of exchange controls or similar restrictions on the full payment
or receipt of such amounts in U.S. Dollars, the Company will appoint an office
or agent in the United States at which such payment may be made. Unless
otherwise specified pursuant to Section 3.01, at the direction of the holder of
any Bearer Security or Coupon payable in a Foreign Currency, payment on such
Bearer Security or Coupon will be made by a check drawn on a bank outside the
United States or, in accordance with arrangements satisfactory to the Trustee,
by wire transfer to an appropriate account maintained by such holder outside the
United States. Except as provided in this paragraph, no payment on any Bearer
Security or Coupon will be made by mail to an address in the United States or by
transfer to an account maintained by the bearer thereof in the United States.
(e) Any interest on any Security that is payable but is not punctually
paid or duly provided for on any Interest Payment Date (herein called "Defaulted
Interest") shall, if such Security is a Registered Security, forthwith cease to
be payable to the Registered Holder on the relevant Record Date by virtue of his
or her having been such a Registered Holder, and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in clause (i) or
(ii) below:
(i) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names such 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 Interest (a "Special
Record Date"), 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 such 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
calendar days and not less than 10 calendar days prior to the date of the
proposed payment and not less than 10 calendar days after the
27
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to the holders of such Registered
Securities at their addresses as they appear in the Register, not less than
10 calendar days prior to 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 Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (B). In case a Coupon Security of any series is
surrendered in exchange for a Registered Security of such series after the
close of business (at the office or agency in a Place of Payment for such
series) on any Special Record Date and before the opening of business (at
such office or agency) on the related proposed date of payment of Defaulted
Interest, such Coupon Security shall be surrendered without the Coupon
relating to such proposed date of payment and Defaulted Interest will not
be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Coupon Security, but will be payable
only to the holder of such Coupon when due in accordance with the
provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest on
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered Securities
may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
(f) Any Defaulted Interest payable in respect of Bearer Securities of
any series shall be payable pursuant to such procedures as may be satisfactory
to the Trustee in such manner that there is no discrimination between the
holders of Registered Securities (if any) and Bearer Securities of such series,
and notice of the payment date therefor shall be given by the Trustee, in the
name and at the expense of the Company, in the manner provided in Section 16.08,
not more than 25 days and not less than 20 days prior to the date of the
proposed payment.
(g) Subject to the provisions set forth herein relating to Record
Dates, each Security delivered pursuant to any provision of this Indenture in
exchange or substitution for, or upon registration of transfer of, any other
Security shall carry all the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 3.09. Cancellation. Unless otherwise specified pursuant to
Section 3.01 for Securities of any series, all Securities surrendered for
payment, redemption, registration of transfer or exchange or credit against any
sinking fund or otherwise and all Coupons surrendered for payment or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee for cancellation and shall be promptly canceled by it and, if
surrendered to the Trustee, shall be promptly canceled by it. The Company may at
any time deliver to the Trustee for cancellation any Securities or Coupons
previously authenticated and delivered hereunder that the Company may have
acquired in any manner whatsoever, and all
28
Securities or Coupons so delivered shall be promptly canceled by the Trustee. No
Securities or Coupons shall be authenticated in lieu of or in exchange for any
Securities or Coupons canceled as provided in this Section, except as expressly
permitted by this Indenture. The Trustee shall dispose of all canceled
Securities and Coupons held by it in accordance with its then customary
procedures and deliver a certificate of such disposal to the Company. The
acquisition of any Securities or Coupons by the Company shall not operate as a
redemption or satisfaction of the indebtedness represented thereby unless and
until such Securities or Coupons are surrendered to the Trustee for
cancellation.
SECTION 3.10. Computation of Interest. Except as otherwise specified
pursuant to Section 3.01 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 3.11. Currency of Payments in Respect of Securities.
(a) Except as otherwise specified pursuant to Section 3.01 for Bearer
Securities of any series, payment of the principal of and premium, if any, and
interest on Bearer Securities of such series denominated in any Currency will be
made in such Currency.
(b) Except as otherwise specified pursuant to Section 3.01 for
Registered Securities of any series, payment of the principal of and premium, if
any, and interest on Registered Securities of such series will be made in U.S.
Dollars.
(c) For purposes of any provision of the Indenture where the holders
of Outstanding Securities may perform an action that requires that a specified
percentage of the Outstanding Securities of all series perform such action and
for purposes of any decision or determination by the Trustee of amounts due and
unpaid for the principal of and premium, if any, and interest on the Securities
of all series in respect of which moneys are to be disbursed ratably, the
principal of and premium, if any, and interest on the Outstanding Securities
denominated in a Foreign Currency will be the amount in U.S. Dollars based upon
exchange rates, determined as specified pursuant to Section 3.01 for Securities
of such series, as of the date for determining whether the holders entitled to
perform such action have performed it or as of the date of such decision or
determination by the Trustee, as the case may be.
(d) Any decision or determination to be made regarding exchange rates
shall be made by an agent appointed by the Company; provided, that such agent
shall accept such appointment in writing and the terms of such appointment
shall, in the opinion of the Company at the time of such appointment, require
such agent to make such determination by a method consistent with the method
provided pursuant to Section 3.01 for the making of such decision or
determination. All decisions and determinations of such agent regarding exchange
rates shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company,
the Guarantor, the Trustee and all holders of the Securities.
SECTION 3.12. Judgments. The Company and the Guarantor may provide
pursuant to Section 3.01 for Securities of any series that (a) the obligation,
if any, of the Company or the Guarantor, as applicable, to pay the principal of,
premium, if any, and interest on the Securities of any series in a Foreign
Currency or U.S. Dollars (the "Designated
29
Currency") as may be specified pursuant to Section 3.01 is of the essence and
agrees that, to the fullest extent possible under applicable law, judgments in
respect of such Securities shall be given in the Designated Currency; (b) the
obligation of the Company or the Guarantor, as applicable, to make payments in
the Designated Currency of the principal of and premium, if any, and interest on
such Securities shall, notwithstanding any payment in any other Currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent
of the amount in the Designated Currency that the holder receiving such payment
may, in accordance with normal banking procedures, purchase with the sum paid in
such other Currency (after any premium and cost of exchange) on the business day
in the country of issue of the Designated Currency or in the international
banking community (in the case of a composite currency) immediately following
the day on which such holder receives such payment; (c) if the amount in the
Designated Currency that may be so purchased for any reason falls short of the
amount originally due, the Company or the Guarantor, as applicable, shall pay
such additional amounts as may be necessary to compensate for such shortfall;
and (d) any obligation of the Company or the Guarantor, as applicable, not
discharged by such payment shall be due as a separate and independent obligation
and, until discharged as provided herein, shall continue in full force and
effect.
SECTION 3.13. CUSIP Numbers. The Company in issuing any Securities may
use CUSIP numbers, if then generally in use, and thereafter with respect to such
series, the Trustee may use such numbers in any notice of redemption or exchange
with respect to such series provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee in
writing of any change in the CUSIP numbers.
ARTICLE IV
REDEMPTION OF SECURITIES
SECTION 4.01. Applicability of Right of Redemption. Redemption of
Securities (other than pursuant to a sinking fund or analogous provision)
permitted by the terms of any series of Securities shall be made in accordance
with such terms (except as otherwise specified pursuant to Section 3.01 for
Securities of any series) in accordance with this Article; provided, however,
that if any such terms of a series of Securities shall conflict with any
provision of this Article, the terms of such series shall govern.
SECTION 4.02. Tax Redemption; Special Tax Redemption.
(a) Unless otherwise specified pursuant to Section 3.01, Bearer
Securities of any series may be redeemed at the option of the Company in whole,
but not in part, at any time, at the Redemption Price thereof (calculated
without premium), if the Company has or will become obligated to pay additional
interest on such Bearer Securities pursuant to Section 6.02 as a result of any
change in, or amendment to, the laws (or any regulation or ruling promulgated
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or any change in the application or official
interpretation of such laws, regulations or
30
rulings, which change or amendment becomes effective on or after the date on
which any Person (including any Person acting as underwriter, broker or dealer)
agrees to purchase any of such Bearer Securities pursuant to their original
issuance, and such obligation cannot be avoided by the Company taking reasonable
measures available to it. If the Company elects to redeem Bearer Securities
pursuant to this Section 4.02, it shall notify the Trustee and the holders of
such Bearer Securities in accordance with Sections 4.03 and 4.04; provided that
no such notice of redemption shall be given earlier than 90 days prior to the
earliest date on which the Company would be obligated to pay such additional
interest were a payment in respect of the Bearer Securities of that series then
due. Prior to the publication of any notice of redemption pursuant to this
Section 4.02(a), the Company shall deliver to the Trustee (i) an Officers'
Certificate stating that the Company is entitled to effect such redemption and
setting forth a statement of facts showing that the conditions precedent to the
right of the Company so to redeem have occurred and (ii) an Opinion of Counsel
to the effect that the Company has or will become obligated to pay such
additional interest as a result of such change or amendment.
(b) Unless otherwise specified pursuant to Section 3.01, if the
Company shall determine that any payment made outside the United States by the
Company or any of its Paying Agents in respect of any Bearer Security or Coupon,
if any, that is not a Floating Rate Security (an "Affected Security") would,
under any present or future laws or regulations in the United States, be subject
to any certification, documentation, information or other reporting requirement
of any kind, the effect of which requirement is the disclosure to the Company,
any Paying Agent or any governmental authority of the nationality, residence or
identity of a beneficial owner of such Affected Security that is a United States
Alien (other than such a requirement (i) that would not be applicable to a
payment made by the Company or any one of its Paying Agents (A) directly to the
beneficial owner or (B) to a custodian, nominee or other agent of the beneficial
owner, or (ii) that can be satisfied by such custodian, nominee or other agent
certifying to the effect that the beneficial owner is a United States Alien;
provided that, in any case referred to in clause (i)(B) or (ii), payment by the
custodian, nominee or agent to the beneficial owner is not otherwise subject to
any such requirement), then the Company shall elect either (x) to redeem such
Affected Securities in whole, but not in part, at the Redemption Price thereof
(calculated without premium) or (y) if the conditions of the next succeeding
paragraph are satisfied, to pay the additional interest specified in such
paragraph. The Company shall make such determination as soon as practicable and
publish prompt notice thereof (the "Determination Notice"), stating the
effective date of such certification, documentation, information or other
reporting requirement, whether the Company elects to redeem the Affected
Securities or to pay the additional interest specified in the next succeeding
paragraph and (if applicable) the last date by which the redemption of the
Affected Securities must take place, as provided in the next succeeding
sentence. If any Affected Securities are to be redeemed pursuant to this
paragraph, the redemption shall take place on such date, not later than one year
after the publication of the Determination Notice, as the Company shall specify
by notice given to the Trustee and the holders of the Affected Securities in
accordance with Sections 4.03 and 4.04. Notwithstanding the foregoing, the
Company shall not so redeem the Affected Securities if the Company shall
subsequently determine, not less than 30 days prior to the Redemption Date, that
subsequent payments on the Affected Securities would not be subject to any such
certification, documentation, information or other reporting requirement, in
which case the Company shall publish prompt notice of such subsequent
determination, and any earlier redemption notice given pursuant to this
paragraph shall be revoked and of no further effect. Prior to the publication of
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any Determination Notice pursuant to this paragraph, the Company shall deliver
to the Trustee (i) an Officers' Certificate stating that the Company is entitled
to make such determination and setting forth a statement of facts showing that
the conditions precedent to the obligation of the Company to redeem the Affected
Securities or to pay the additional interest specified in the next succeeding
paragraph have occurred and (ii) an Opinion of Counsel to the effect that such
conditions have occurred.
(c) If and so long as the certification, documentation, information or
other reporting requirements referred to in the preceding paragraph would be
fully satisfied by payment of a backup withholding tax or similar charge, the
Company may elect to pay as additional interest such amounts as may be necessary
so that every net payment made outside the United States following the effective
date of such requirement by the Company or any of its Paying Agents in respect
of any Affected Security of which the beneficial owner is a United States Alien
(but without any requirement that the nationality, residence or identity of such
beneficial owner be disclosed to the Company, any Paying Agent or any
governmental authority), after deduction or withholding for or on account of
such backup withholding tax or similar charge (other than a backup withholding
tax or similar charge that (i) would not be applicable in the circumstances
referred to in the parenthetical clause of the first sentence of the preceding
paragraph or (ii) is imposed as a result of presentation of any such Affected
Security for payment more than 15 days after the date on which such payment
became due and payable or on which payment thereof was duly provided for,
whichever occurred later), will not be less than the amount provided in any such
Affected Security to be then due and payable. If the Company elects to pay
additional interest pursuant to this paragraph, then the Company shall have the
right, but shall not be required, to redeem the Affected Securities at any time
in whole, but not in part, at the Redemption Price thereof (calculated without
premium), subject to the provisions of the last three sentences of the
immediately preceding paragraph. If the Company elects to pay additional
interest pursuant to this paragraph and the condition specified in the first
sentence of this paragraph should no longer be satisfied, then the Company shall
redeem the Affected Securities in whole, but not in part, at the Redemption
Price thereof (calculated without premium), subject to the provisions of the
last three sentences of the immediately preceding paragraph. Any redemption
payments made by the Company pursuant to the two immediately preceding sentences
shall be subject to the continuing obligation of the Company to pay additional
interest pursuant to this paragraph. If the Company elects to, or is required
to, redeem the Affected Securities pursuant to this paragraph, it shall notify
the Trustee and the holders of the Affected Securities thereof in accordance
with Sections 4.03 and 4.04.
SECTION 4.03. Selection of Securities to be Redeemed.
(a) If the Company shall at any time elect to redeem all or any
portion of the Securities of a series then Outstanding, it shall at least 45
days prior to the Redemption Date fixed by the Company (unless a shorter period
shall be satisfactory to the Trustee) notify the Trustee of such Redemption Date
and of the principal amount of Securities to be redeemed, and thereupon the
Trustee shall select, in such manner as the Trustee shall deem appropriate and
fair, the Securities (or portions thereof) of such series to be redeemed. Unless
otherwise provided in the Officers' Certificate or supplemental indenture
provided for in Section 3.01, no Security of a denomination of $1,000 shall be
redeemed in part and Securities may be redeemed in part only in integral
multiples of $1,000. In any case where more than one Registered Security of such
series is registered in the same name, the Trustee in its discretion may treat
the aggregate principal
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amount so registered as if it were represented by one Registered Security of
such series. The Trustee shall, as soon as practicable, notify the Company in
writing of the Securities and portions of Securities so selected.
(b) For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security that has been or is to be
redeemed.
SECTION 4.04. Notice of Redemption.
(a) The election of the Company to redeem any Securities of any series
shall be evidenced by a Board Resolution. Notice of redemption shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company, not less than 30 nor more than 60 days prior to the
Redemption Date, to the holders of Securities of any series to be redeemed in
whole or in part pursuant to this Article, in the manner provided in Section
16.08. Any notice so given shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice. Failure to give such
notice, or any defect in such notice to the holder of any Security of a series
designated for redemption, in whole or in part, shall not affect the sufficiency
of any notice of redemption with respect to the holder of any other Security of
such series.
(b) All notices of redemption shall identify the Securities to be
redeemed (including CUSIP numbers) and shall state:
(i) such election by the Company to redeem Securities of such series
pursuant to provisions contained in this Indenture or the terms of the
Securities of such series or a supplemental indenture establishing such
series, if such be the case;
(ii) the Redemption Date;
(iii) the Redemption Price;
(iv) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed, and that interest
thereon, if any, shall cease to accrue on and after said date;
(vi) that, unless otherwise specified in such notice, Coupon
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption, failing which the amount of any such missing Coupon or Coupons
will be deducted from the Redemption Price;
(vii) the Place or Places of Payment where such Securities are to be
surrendered for payment of the Redemption Price, and that the Securities
designated in such notice for
33
redemption are required to be presented on or after such Redemption Date at
the designated Place of Payment;
(viii) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 3.06(c) or
otherwise, the last date on which such exchanges may be made;
(ix) that the redemption is for a sinking fund, if such is the case;
and
(x) if any Security of any series is to be redeemed in part, that on
and after the Redemption Date, upon surrender of such Security and any
Coupons appertaining thereto, such Security and any Coupons appertaining
thereto will be canceled and a new Security or Securities of such series in
aggregate principal amount equal to the unredeemed portion thereof and with
appropriate Coupons will be issued and delivered without charge to the
holder or, in the case of Securities providing appropriate space for such
notation, at the option of the holders, the Trustee, in lieu of delivering
a new Security or Securities as aforesaid, may make a notation on such
Security of the payment of the redeemed portion thereof.
SECTION 4.05. Deposit of Redemption Price. On or prior to 10 a.m., New
York City time, on the Redemption Date for any Registered Securities, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 6.04) an amount of money in the Currency in which such
Securities are denominated (except as provided pursuant to Section 3.01)
sufficient to pay the Redemption Price of such Securities or any portions
thereof that are to be redeemed on that date. In the case of any redemption
pertaining to Bearer or Coupon Securities, the Company shall, no later than the
Business Day prior to such Redemption Date, deposit with the Trustee or with a
Paying Agent (other than the Company) an amount of money in the Currency in
which such Securities are denominated (except as provided pursuant to Section
3.01) sufficient to pay the Redemption Price of such Securities or any portion
thereof that are to be redeemed on the Redemption Date.
SECTION 4.06. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, any Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
and from and after such date (unless the Company shall Default in the payment of
the Redemption Price) such Securities shall cease to bear interest and any
Coupons for such interest appertaining to any such Securities to be redeemed,
except to the extent described below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price; provided, however, that
installments of interest that have a Stated Maturity on or prior to the
Redemption Date for such Securities shall be payable according to the terms of
such Securities and the provisions of Section 3.08.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
34
If any Coupon Security surrendered for redemption shall not be
accompanied by all Coupons appertaining thereto maturing on or after the
Redemption Date, the Redemption Price for such Coupon Security may be reduced by
an amount equal to the face amount of all such missing Coupons. If thereafter
the holder of such Coupon shall surrender to any Paying Agent outside the United
States any such missing Coupon in respect of which a deduction shall have been
made from the Redemption Price, such holder shall be entitled to receive the
amount so deducted. The surrender of such missing Coupon or Coupons may be
waived by the Company and the Trustee, if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless.
SECTION 4.07. Securities Redeemed in Part. Any Security that is to be
redeemed only in part shall be surrendered at the Corporate Trust Office or such
other office or agency of the Company as is specified pursuant to Section 3.01
(in the case of Registered Securities) and at the principal London office of the
Trustee or such other office or agency of the Company outside the United States
as is specified pursuant to Section 3.01 (in the case of Bearer Securities)
with, if the Company, the Registrar or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company, the
Registrar and the Trustee duly executed by, the holder thereof or his attorney
duly authorized in writing, and the Company shall execute, and the Trustee shall
authenticate and deliver to the holder of such Security without service charge,
a new Security or Securities of the same series, of like tenor and form, of any
authorized denomination as requested by such holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered, and, in the case of a Coupon Security, with
appropriate Coupons attached; except that if a Global Security is so
surrendered, the Company shall execute, and the Trustee shall authenticate and
deliver to the Depositary for such Global Security, without service charge, a
new Global Security in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Global Security so surrendered. In
the case of a Security providing appropriate space for such notation, at the
option of the holder thereof, the Trustee, in lieu of delivering a new Security
or Securities as aforesaid, may make a notation on such Security of the payment
of the redeemed portion thereof.
ARTICLE V
SINKING FUNDS
SECTION 5.01. Applicability of Sinking Fund.
(a) Redemption of Securities permitted or required pursuant to a
sinking fund for the retirement of Securities of a series by the terms of such
series of Securities shall be made in accordance with such terms of such series
of Securities and this Article, except as otherwise specified pursuant to
Section 3.01 for Securities of such series, provided, however, that if any such
terms of a series of Securities shall conflict with any provision of this
Article, the terms of such series shall govern.
(b) The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "Mandatory Sinking
Fund Payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "Optional
Sinking Fund Payment." If provided for by the
35
terms of Securities of any series, the cash amount of any Mandatory Sinking Fund
Payment may be subject to reduction as provided in Section 5.02.
SECTION 5.02. Mandatory Sinking Fund Obligation. The Company may, at
its option, satisfy any Mandatory Sinking Fund Payment obligation, in whole or
in part, with respect to a particular series of Securities by (1) delivering to
the Trustee Securities of such series in transferable form (together with the
unmatured Coupons, if any, appertaining thereto) theretofore purchased or
otherwise acquired by the Company or redeemed at the election of the Company
pursuant to Section 4.03 or (2) receiving credit for Securities of such series
(together with the unmatured Coupons, if any, appertaining thereto) (not
previously so credited) acquired by the Company and theretofore delivered to the
Trustee. The Trustee shall credit such Mandatory Sinking Fund Payment obligation
with an amount equal to the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
Mandatory Sinking Fund Payment shall be reduced accordingly. If the Company
shall elect to so satisfy any Mandatory Sinking Fund Payment obligation, it
shall deliver to the Trustee not less than 45 days prior to the relevant sinking
fund payment date a written notice signed on behalf of the Company by its
Chairman of the Board of Directors, its President, one of its Vice Presidents,
its Treasurer or one of its Assistant Treasurers, which shall designate the
Securities (and portions thereof, if any) so delivered or credited and which
shall be accompanied by such Securities (together with the unmatured Coupons, if
any, appertaining thereto) (to the extent not theretofore delivered) in
transferable form. In case of the failure of the Company, at or before the time
so required, to give such notice and deliver such Securities the Mandatory
Sinking Fund Payment obligation shall be paid entirely in moneys.
SECTION 5.03. Optional Redemption at Sinking Fund Redemption Price. In
addition to the sinking fund requirements of Section 5.02, to the extent, if
any, provided for by the terms of a particular series of Securities, the Company
may, at its option, make an Optional Sinking Fund Payment with respect to such
Securities. Unless otherwise provided by such terms, (a) to the extent that the
right of the Company to make such Optional Sinking Fund Payment shall not be
exercised in any year, it shall not be cumulative or carried forward to any
subsequent year, and (b) such optional payment shall operate to reduce the
amount of any Mandatory Sinking Fund Payment obligation as to Securities of the
same series. If the Company intends to exercise its right to make such optional
payment in any year it shall deliver to the Trustee not less than 45 days prior
to the relevant sinking fund payment date a certificate signed by its Chairman
of the Board of Directors, its President, one of its Vice President, its
Treasurer or one of its Assistant Treasurers stating that the Company will
exercise such optional right, and specifying the amount which the Company will
pay on or before the next succeeding sinking fund payment date. Such certificate
shall also state that no Event of Default has occurred and is continuing.
SECTION 5.04. Application of Sinking Fund Payment.
(a) If the sinking fund payment or payments made in funds pursuant to
either Section 5.02 or 5.03 with respect to a particular series of Securities
plus any unused balance of any preceding sinking fund payments made in funds
with respect to such series shall exceed $50,000 (or a lesser sum if the Company
shall so request, or such equivalent sum for Securities denominated other than
in U.S. Dollars), it shall be applied by the Trustee on the sinking fund payment
date next following the date of such payment, unless the date of such payment
shall be a
36
sinking fund payment date, in which case such payment shall be applied on such
sinking fund payment date, to the redemption of Securities of such series at the
redemption price specified in Section 4.04(b). The Trustee shall select, in the
manner provided in Section 4.03, for redemption on such sinking fund payment
date, a sufficient principal amount of Securities of such series to absorb said
funds, as nearly as may be, and shall, at the expense and in the name of the
Company, thereupon cause notice of redemption of the Securities to be given in
substantially the manner provided in Section 4.04(a) for the redemption of
Securities in part at the option of the Company, except that the notice of
redemption shall also state that the Securities are being redeemed for the
sinking fund. Any sinking fund moneys not so applied by the Trustee to the
redemption of Securities of such series shall be added to the next sinking fund
payment received in funds by the Trustee and, together with such payment, shall
be applied in accordance with the provisions of this Section 5.04. Any and all
sinking fund moneys held by the Trustee on the last sinking fund payment date
with respect to Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee to the payment of the principal of the Securities of such series at
maturity.
(b) On or prior to each sinking fund payment date, the Company shall
pay to the Trustee a sum equal to all interest accrued to the date fixed for
redemption on Securities to be redeemed on such sinking fund payment date
pursuant to this Section 5.04.
(c) The Trustee shall not redeem any Securities of a series with
sinking fund moneys or mail any notice of redemption of Securities of such
series by operation of the sinking fund during the continuance of a Default in
payment of interest on any Securities of such series or of any Event of Default
(other than an Event of Default occurring as a consequence of this paragraph) of
which the Trustee has actual knowledge, except that if the notice of redemption
of any Securities of such series shall theretofore have been mailed in
accordance with the provisions hereof, the Trustee shall redeem such Securities
if funds sufficient for that purpose shall be deposited with the Trustee in
accordance with the terms of this Article. Except as aforesaid, any moneys in
the sinking fund at the time any such Default or Event of Default shall occur
and any moneys thereafter paid into the sinking fund shall, during the
continuance of such Default or Event of Default, be held as security for the
payment of all the Securities of such series; provided, however, that in case
such Default or Event of Default shall have been cured or waived as provided
herein, such moneys shall thereafter be applied on the next sinking fund payment
date on which such moneys are required to be applied pursuant to the provisions
of this Section 5.04.
ARTICLE VI
PARTICULAR COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
SECTION 6.01. Payments of Securities. The Company will duly and
punctually pay the principal of and premium, if any, on each series of
Securities, and the interest which shall have accrued thereon, and pay any
Coupons, at the dates and place and in the manner provided in the Securities,
the Coupons and in this Indenture. Any interest due on Coupon Securities on or
before Maturity, other than additional interest, if any, payable as provided in
Section 6.02 in respect of principal of (or premium, if any, on) such a
Security, shall be payable
37
only upon presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature.
SECTION 6.02. Payment of Additional Interest. Unless otherwise
provided pursuant to Section 3.01, the provisions of this Section 6.02 shall be
applicable to Bearer Securities of any series.
(a) The Company will, subject to the exceptions and limitations set
forth below, pay as additional interest to the holder of any Bearer Security or
Coupon that is a United States Alien such amounts as may be necessary so that
every net payment on such Bearer Security or Coupon, after deduction or
withholding for or on account of any present or future tax, assessment or other
governmental charge imposed upon or as a result of such payment by the United
States (or any political subdivision or taxing authority thereof or therein),
will not be less than the amount provided in such Bearer Security or Coupon to
be then due and payable. However, the Company will not be required to make any
such payment of additional interest for or on account of:
(i) any tax, assessment or other governmental charge that would not
have been imposed but for (i) the existence of any present or former
connection between such holder (or between a fiduciary, settlor or
beneficiary of, or a person holding a power over, such holder, if such
holder is an estate or a trust, or a member or shareholder of such holder,
if such holder is a partnership or corporation) and the United States,
including, without limitation, such holder (or such fiduciary, settlor,
beneficiary, person holding a power, member or shareholder) being or having
been a citizen or resident thereof or being or having been engaged in trade
or business or present therein or having or having had a permanent
establishment therein or (ii) such holder's past or present status as a
personal holding company, foreign personal holding company or private
foundation or other tax-exempt organization with respect to the United
States or as a corporation that accumulates earnings to avoid United States
federal income tax;
(ii) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge that would not
have been imposed but for the presentation by the holder of a Bearer
Security or Coupon for payment more than 15 days after the date on which
such payment became due and payable or on which payment thereof was duly
provided for, whichever occurs later;
(iv) any tax, assessment or other governmental charge that is payable
otherwise than by deduction or withholding from a payment on a Bearer
Security or Coupon;
(v) any tax, assessment or other governmental charge required to be
deducted or withheld by any Paying Agent from a payment on a Bearer
Security or Coupon, if such payment can be made without such deduction or
withholding by any other Paying Agent;
(vi) any tax, assessment or other governmental charge that would not
have been imposed but for a failure to comply with applicable
certification, documentation,
38
information or other reporting requirement concerning the nationality,
residence, identity or connection with the United States of the holder or
beneficial owner of a Bearer Security or Coupon if, without regard to any
tax treaty, such compliance is required by statute or regulation of the
United States as a condition to relief or exemption from such tax,
assessment or other governmental charge; or
(vii) any tax, assessment or other governmental charge imposed on a
holder that actually or constructively owns 10 percent or more of the
combined voting power of all classes of stock of the Company or that is a
controlled foreign corporation related to the Company through stock
ownership;
nor shall additional interest be paid with respect to a payment on a Bearer
Security or Coupon to a holder that is a fiduciary or partnership or other than
the sole beneficial owner of such payment to the extent a beneficiary or settlor
with respect to such fiduciary or a member of such partnership or a beneficial
owner would not have been entitled to the additional interest had such
beneficiary, settlor, member or beneficial owner been the holder of such Bearer
Security or Coupon.
(b) Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or premium, if any, or interest on any Security or
payment with respect to any Coupon of any series, such mention shall be deemed
to include mention of the payment of additional interest provided for in the
terms of such Securities and this Section to the extent that, in such context,
additional interest is, was or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of additional
interest (if applicable) in any provisions hereof shall not be construed as
excluding additional interest in those provisions hereof where such express
mention is not made.
(c) If the payment of additional interest becomes required in respect
of the Securities of a series, at least ten days prior to the first Interest
Payment Date with respect to which such additional interest will be payable (or
if the Securities of that series will not bear interest prior to Maturity, the
first day on which a payment of principal and premium, if any, is made and on
which such additional interest will be payable), and at least ten days prior to
each date of payment of principal and premium, if any, or interest if there has
been any change with respect to the matters set forth in the below mentioned
Officers' Certificate, the Company will furnish the Trustee and each Paying
Agent with an Officers' Certificate that shall specify by country the amount, if
any, required to be withheld on such payments to holders of Securities or
Coupons that are United States Aliens, and the Company will pay to the Trustee
or such Paying Agent the additional interest, if any, required by the terms of
such Securities and this Section. The Company covenants to indemnify the Trustee
and any Paying Agent for, and to hold them harmless against, any loss, liability
or expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section 6.02.
SECTION 6.03. Paying Agent.
(a) The Company will maintain in each Place of Payment for any series
of Securities and Coupons, if any, an office or agency where Securities and
Coupons of such series (but, except as otherwise provided in Section 3.08,
unless such Place of Payment is located
39
outside the United States, not Bearer Securities or Coupons) may be presented or
surrendered for payment, where Securities of such series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and Coupons of such series and this
Indenture may be served (the "Paying Agent"). So long as any Bearer Securities
of any series remain outstanding, the Company will maintain for such purposes
one or more offices or agencies outside the United States in such city or cities
specified pursuant to Section 3.01 and, if any Bearer Securities are listed on a
securities exchange that requires an office or agency for the payment of
principal of and premium, if any, or interest on such Bearer Securities in a
location other than the location of an office or agency specified pursuant to
Section 3.01, the Company will maintain for such purposes an office or agency in
such location so long as any Bearer Securities are listed on such securities
exchange and such exchange so requires. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee (in the case of Registered
Securities) and at the principal London office of the Trustee (in the case of
Bearer Securities), and the Company hereby appoints the Trustee as Paying Agent
to receive all presentations, surrenders, notices and demands.
(b) The Company may also from time to time designate different or
additional offices or agencies where the Securities of any series may be
presented or surrendered for any or all such purposes (in or outside of such
Place of Payment), and may from time to time rescind any such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligations described in the preceding paragraph. The
Company will give prompt written notice to the Trustee of any such additional
designation or rescission of designation and of any change in the location of
any such different or additional office or agency. The Company shall enter into
an appropriate agency agreement with any Paying Agent not a party to this
Indenture. The agreement shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the Trustee and the Guarantor of
the name and address of each such agent. The Company, the Guarantor, or any
Affiliate of the Company or the Guarantor may act as Paying Agent.
SECTION 6.04. To Hold Payment in Trust.
(a) If the Company, the Guarantor or an Affiliate of either the
Company or the Guarantor shall at any time act as Paying Agent with respect to
any series of Securities and Coupons, if any, then, on or before the date on
which the principal of and premium, if any, or interest on any of the Securities
of that series by their terms or as a result of the calling thereof for
redemption shall become payable, the Company, the Guarantor or such Affiliate
will segregate and hold in trust for the benefit of the holders of such
Securities or the Trustee a sum sufficient to pay such principal and premium, if
any, or interest which shall have so become payable until such sums shall be
paid to such holders or otherwise disposed of as herein provided, and will
notify the Trustee of its action or failure to act in that regard. Upon any
proceeding under any federal bankruptcy laws with respect to the Company or the
Guarantor or any Affiliate of the Company or the Guarantor, if the Company, the
Guarantor or such Affiliate is then acting as Paying Agent, the Trustee shall
replace the Company, the Guarantor or such Affiliate as Paying Agent.
40
(b) If the Company shall appoint, and at the time have, a Paying Agent
for the payment of the principal of and premium, if any, or interest on any
series of Securities and Coupons, then prior to 10 a.m., New York City time, on
the date on which the principal of and premium, if any, or interest on any of
the Securities of that series shall become payable as aforesaid, whether by
their terms or as a result of the calling thereof for redemption, the Company
will deposit with such Paying Agent a sum sufficient to pay such principal and
premium, if any, or interest, such sum to be held in trust for the benefit of
the holders of such Securities or the Trustee, and (unless such Paying Agent is
the Trustee), the Company, the Guarantor or any other obligor of such Securities
will promptly notify the Trustee of its payment or failure to make such payment.
(c) If the Paying Agent shall be other than the Trustee, the Company
will cause such Paying Agent 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 6.03, that such Paying Agent shall:
(i) hold all moneys held by it for the payment of the principal of and
premium, if any, or interest on the Securities of that series and any
related Coupons in trust for the benefit of the holders of such Securities
until such sums shall be paid to such holders or otherwise disposed of as
herein provided;
(ii) give to the Trustee notice of any Default by the Company, the
Guarantor or any other obligor upon the Securities of that series in the
making of any payment of the principal of and premium, if any, or interest
on the Securities of that series or any payment on any related Coupons when
the same shall have become due and payable; and
(iii) at any time during the continuance of any such Default, upon the
written request of the Trustee, pay to the Trustee all sums so held in
trust by such Paying Agent.
(d) Anything in this Section 6.04 to the contrary notwithstanding, the
Company may at any time, for the purpose of obtaining a release, satisfaction or
discharge of this Indenture or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by the Company or by any Paying Agent other
than the Trustee as required by this Section 6.04, 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.
(e) Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of and premium,
if any, or interest on any Security of any series or the payment of any related
Coupon and remaining unclaimed for two years after such principal and premium,
if any, or interest has become due and payable shall be paid to the Company upon
Company Request along with any interest that has accumulated thereon as a result
of such money being invested at the direction of the Company, or (if then held
by the Company) shall be discharged from such trust, and the holder of such
Security or Coupon shall thereafter, as an unsecured general creditor, look only
to the Company (except as with regards to the Guarantee) for payment of such
amounts without interest thereon, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent before being required to make any such repayment, may at
the expense of the
41
Company cause to be transmitted in the manner and to the extent provided by
Section 16.06, 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, any unclaimed balance of such money then remaining will be repaid to
the Company.
SECTION 6.05. Merger, Consolidation and Sale of Assets.
(a) The Company will not consolidate with any other entity or accept a
merger of any other entity into the Company or permit the Company to be merged
into any other entity, or sell other than for cash or lease all or substantially
all its assets to another entity, or purchase all or substantially all the
assets of another entity, unless (i) either the Company shall be the continuing
entity, or the successor, transferee or lessee entity (if other than the
Company) shall expressly assume, by indenture supplemental hereto satisfactory
to the Trustee, executed and delivered by such entity prior to or simultaneously
with such consolidation, merger, sale or lease, the due and punctual payment of
the principal of and interest and premium, if any, on all the Securities (and
Coupons, if any), according to their tenor, and the due and punctual performance
and observance of all other obligations to the holders and the Trustee under
this Indenture or under the Securities (and Coupons, if any) to be performed or
observed by the Company; and (ii) immediately after such consolidation, merger,
sale, lease or purchase the Company or the successor, transferee or lessee
entity (if other than the Company) would not be in Default in the performance of
any covenant or condition of this Indenture. A purchase by a Subsidiary of all
or substantially all of the assets of another entity shall not be deemed to be a
purchase of such assets by the Company.
(b) Upon any consolidation with or merger into any other entity, or
any conveyance or lease of all or substantially all of the assets of the Company
in accordance with this Section 6.05, the successor entity formed by such
consolidation or into or with which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor entity had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Company
shall be relieved of all obligations and covenants under this Indenture and the
Securities and Coupons.
SECTION 6.06. Compliance Certificate. The Company shall furnish to the
Trustee annually, within 120 days after the end of each fiscal year, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture (which
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture) and, in the event of any
Default, specifying each such Default and the nature and status thereof of which
such person may have knowledge. Such certificates need not comply with Section
16.02 of this Indenture.
SECTION 6.07. Conditional Waiver by Holders of Securities. Anything in
this Indenture to the contrary notwithstanding, the Company or the Guarantor may
fail or omit in any particular instance to comply with a covenant or condition
set forth herein with respect to any series of Securities if the Company or the
Guarantor shall have obtained and filed with the Trustee, prior to the time of
such failure or omission, evidence (as provided in Article Eight) of the consent
of the holders of a majority in aggregate principal amount of the Securities of
such
42
series at the time Outstanding, either waiving such compliance in such instance
or generally waiving 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, or impair any right consequent thereon and, until such
waiver shall have become effective, the obligations of the Company and the
Guarantor and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
SECTION 6.08. Statement by Officers as to Default. The Company shall
deliver to the Trustee and the Guarantor, as soon as possible and in any event
within five days after the Company becomes aware of the occurrence of any Event
of Default or an event which, with the giving of notice or the lapse of time or
both, would constitute an Event of Default, an Officer's Certificate setting
forth the details of such Event of Default or Default and the action which the
Company proposes to take with respect thereto.
ARTICLE VII
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
SECTION 7.01. Events of Default. Except where otherwise indicated by
the context or where the term is otherwise defined for a specific purpose, the
term "Event of Default" as used in this Indenture with respect to Securities of
any series shall mean one of the following described events unless it is either
inapplicable to a particular series or it is specifically deleted or modified in
the supplemental indenture, if any, under which such series of Securities is
issued:
(a) the failure of the Company to pay any installment of interest on
any Security of such series or to make any payment with respect to the related
Coupons, if any, when and as the same shall become payable, which failure shall
have continued unremedied for a period of 30 days;
(b) the failure of the Company to pay the principal of (and premium,
if any, on) any Security of such series, when and as the same shall become
payable, whether at Maturity as therein expressed, by call for redemption
(otherwise than pursuant to a sinking fund), by declaration as authorized by
this Indenture or otherwise;
(c) the failure of the Company to pay a sinking fund installment, if
any, when and as the same shall become payable by the terms of a Security of
such series, which failure shall have continued unremedied for a period of 30
days;
(d) the failure of the Company, subject to the provisions of Section
6.08, or the Guarantor to observe and perform any other of the covenants or
agreements on the part of the Company or the Guarantor, as applicable, contained
in this Indenture (including any indenture supplemental hereto pursuant to which
the Securities of such series were issued as contemplated by Section 3.01)
(other than a covenant or agreement which has been expressly included in this
Indenture solely for the benefit of a series of Securities other than that
series), which failure shall not have been remedied to the satisfaction of the
Trustee, or without provision deemed by the Trustee to be adequate for the
remedying thereof having been made, for a period of 90 days after written notice
shall have been given to the Company and the Guarantor by the Trustee or shall
43
have been given to the Company, the Guarantor and the Trustee by holders of 25%
or more in aggregate principal amount of the Securities of such series then
Outstanding, specifying such failure and requiring the Company or the Guarantor
to remedy the same;
(e) the entry by a court having jurisdiction in the premises of a
decree or order for relief in respect of the Company and the Guarantor in an
involuntary case under the federal bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar official)
of the Company and the Guarantor or of substantially all the property of the
Company and the Guarantor or ordering the winding-up or liquidation of its
affairs and such decree or order shall remain unstayed and in effect for a
period of 90 consecutive days;
(f) the commencement by the Company and the Guarantor of a voluntary
case under the federal bankruptcy laws, as now or hereafter constituted, or any
other applicable federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect, or the consent by the Company and the Guarantor to
the entry of an order for relief in an involuntary case under any such law, or
the consent by the Company and the Guarantor to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian or
sequestrator (or similar official) of the Company and the Guarantor or of
substantially all the property of the Company and the Guarantor or the making by
it of an assignment for the benefit of creditors or the admission by it in
writing of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company and the Guarantor in furtherance of
any action; or
(g) the occurrence of any other Event of Default with respect to
Securities of such series as provided in a supplemental indenture or Officers'
Certificate, if any, applicable to such series of Securities.
SECTION 7.02. Acceleration; Recission and Annulment.
(a) If any one or more of the above-described Events of Default shall
happen with respect to Securities of any series at the time Outstanding, then,
and in each and every such case, during the continuance of any such Event of
Default, the Trustee or the holders of 25% or more in principal amount of the
Securities of such series then Outstanding may (and upon the written request of
the holders of a majority in principal amount of such Securities then
Outstanding, the Trustee shall) declare the principal (or, if the Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of and all
accrued but unpaid interest on all the Securities of such series then
Outstanding, if not then due and payable, to be due and payable, and upon any
such declaration the same shall become and be immediately due and payable,
anything in this Indenture or in the Securities of such series contained to the
contrary notwithstanding; provided that no Event of Default with respect to
Securities of a series, except with respect to an Event of Default under
subsections (e) and (f) of Section 7.01 and except to the extent otherwise
provided in subsection (d) of Section 7.01, shall constitute an Event of Default
with respect to Securities of any other series. Upon payment of such amounts in
the Currency in which such Securities are denominated (except as otherwise
provided pursuant to Section 3.01), all obligations of the Company in respect of
the payment of principal of and interest on the Securities of such series shall
terminate.
44
(b) This provision, however, is subject to the condition that, if at
any time after the principal of all the Securities of such series, to which any
one or more of the above-described Events of Default is applicable, shall have
been so declared to be due and payable, and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided,
(i) the Company has paid or deposited with the Paying Agent a sum in
the Currency in which such Securities are denominated (except as otherwise
provided pursuant to Section 3.01) sufficient to pay
(A) all amounts owing the Trustee and any predecessor trustee
hereunder under Section 11.01(a) (provided, however, that all sums payable
under this clause (A) shall be paid in U.S. Dollars);
(B) all arrears of interest, if any, upon all the Securities of such
series (and all overdue payments with respect to any related Coupons) (with
interest, to the extent that interest thereon shall be legally enforceable,
on any overdue installment of interest at the rate borne by the Securities
or Coupons of such series);
(C) the principal of and premium, if any, on any Securities of such
series that have become due otherwise than by such declaration of
acceleration and interest thereon; and
(D) all other sums payable under this Indenture (except the principal
of the Securities of such series which would not be due and payable were it
not for such declaration); and
(ii) every other Default and Event of Default under this Indenture
shall have been made good to the reasonable satisfaction of the Trustee or
of the holders of a majority in principal amount of the Securities of such
series then Outstanding, or provision deemed by the Trustee or by such
holders to be adequate therefor shall have been made, then and in every
such case the holders of a majority in principal amount of the Securities
of such series then Outstanding may, by written notice to the Company, the
Guarantor and the Trustee, on behalf of the holders of all the Securities
of such series, waive the Event of Default by reason of which the principal
of the Securities of such series shall have been so declared to be due and
payable and may rescind and annul such declaration and its consequences;
provided, however, that no such waiver, rescission or annulment shall
extend to or affect any subsequent Default or Event of Default or impair
any right consequent thereon.
(c) Any declaration by the Trustee pursuant to this Section 7.02 shall
be by written notice to the Company and the Guarantor, and any declaration or
waiver by the holders of Securities of any series pursuant to this Section 7.02
shall be by written notice to the Company, the Guarantor and the Trustee.
(d) For all purposes under this Indenture, if a portion of the
principal of any Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been
45
rescinded and annulled, the principal amount of such Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such acceleration, and
payment of such portion of the principal thereof as shall be due and payable as
a result of such acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full of such
Discount Securities.
(e) The Company, the Guarantor and the Trustee may, to the extent
provided in Section 14.01, enter into one or more indentures supplemental hereto
with respect to any series of the Securities which may provide for additional or
different Events of Default with respect to such series of Securities.
SECTION 7.03. Other Remedies. If the Company shall fail for a period
of 30 days to pay any installment of interest on the Securities (and Coupons, if
any) of any series or shall fail to pay the principal of and premium, if any, on
any of the Securities of such series when and as the same shall become due and
payable, whether at Maturity, or by call for redemption (other than pursuant to
the sinking fund), by declaration as authorized by this Indenture, or otherwise,
or shall fail for a period of 30 days to make any sinking fund payment as to a
series of Securities, then, upon demand of the Trustee, the Company will pay to
the Paying Agent for the benefit of the holders of Securities of such series
then Outstanding the whole amount which then shall have become due and payable
on all the Securities of such series, with interest on the overdue principal and
premium, if any, and (so far as the same may be legally enforceable) on the
overdue installments of interest at the rate borne by the Securities of such
series, and all amounts owing the Trustee and any predecessor trustee hereunder
under Section 11.01(a).
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceeding at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon the
Securities of such series, and collect the moneys adjudged or decreed to be
payable out of the property of the Company or any other obligor upon the
Securities of such series, wherever situated, in the manner provided by law.
Every recovery of judgment in any such action or other proceeding, subject to
the payment to the Trustee of all amounts owing the Trustee and any predecessor
trustee hereunder under Section 11.01(a), shall be for the ratable benefit of
the holders of such series of Securities which shall be the subject of such
action or proceeding. All rights of action upon or under any of the Securities
or this Indenture may be enforced by the Trustee without the possession of any
of the Securities and without the production of any thereof at any trial or any
proceeding relative thereto.
SECTION 7.04. Trustee as Attorney-in-Fact. The Trustee is hereby
appointed, and each and every holder of the Securities, by receiving and holding
the same, shall be conclusively deemed to have appointed the Trustee, the true
and lawful attorney-in-fact of such holder, with authority to make or file
(whether or not the Company shall be in Default in respect of the payment of the
principal of, or interest on, any of the Securities), in its own name and as
trustee of an express trust or otherwise as it shall deem advisable, in any
receivership, insolvency, liquidation, bankruptcy, reorganization or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or to their respective creditors or property, any and all claims,
proofs of claim, proofs of debt, petitions, consents, other papers and documents
46
and amendments of any thereof, as may be necessary or advisable in order to have
the claims of the Trustee and any predecessor trustee hereunder and of the
holders of the Securities allowed in any such proceeding and to collect and
receive any moneys or other property payable or deliverable on any such claim,
and to execute and deliver any and all other papers and documents and to do and
perform any and all other acts and things, as it may deem necessary or advisable
in order to enforce in any such proceeding any of the claims of the Trustee and
any predecessor trustee hereunder and of any of such holders in respect of any
of the Securities; and any receiver, assignee, trustee, custodian or debtor in
any such proceeding is hereby authorized, and each and every taker or holder of
the Securities, by receiving and holding the same, shall be conclusively deemed
to have authorized any such receiver, assignee, trustee, custodian or debtor, to
make any such payment or delivery only to or on the order of the Trustee, and to
pay to the Trustee any amount due it and any predecessor trustee hereunder under
Section 11.01(a); provided, however, that nothing herein contained shall be
deemed to authorize or empower the Trustee to consent to or accept or adopt, on
behalf of any holder of Securities, any plan of reorganization or readjustment
affecting the Securities or the rights of any holder thereof, or to authorize or
empower the Trustee to vote in respect of the claim of any holder of any
Securities in any such proceeding.
SECTION 7.05. Priorities. Any moneys collected by the Trustee with
respect to a series of Securities under this Article Seven shall be applied in
the order following, at the date or dates fixed by the Trustee for the
distribution of such moneys and, in the case of the distribution of such moneys
on account of the Securities of any series, upon presentation of the Securities
of such series, and stamping thereon the payment, if only partially paid, and
upon surrender thereof, if fully paid:
First: To the payment of all amounts due to the Trustee and any
predecessor trustee hereunder under Section 11.01(a).
Second: In case the principal of the Outstanding Securities of such
series shall not have become due and be unpaid, to the payment of interest
on the Securities of such series, in the order of the Maturity of the
installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue installments
of interest at the rate borne by such Securities, such payments to be made
ratably to the Persons entitled thereto.
Third: In case the principal of the Outstanding Securities of such
series shall have become due, by declaration or otherwise, to the payment
of the whole amount then owing and unpaid upon the Securities of such
series for principal and premium, if any, and interest, with interest on
the overdue principal and premium, if any, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the rate borne by the Securities of such series, and in case
such moneys shall be insufficient to pay in full the whole amounts so due
and unpaid upon the Securities of such series, then to the payment of such
principal and premium, if any, and interest without preference or priority
of principal and premium, if any, over interest, or of interest over
principal and premium, if any, or of any installment of interest over any
other installment of interest, or of any Security of such series over any
other Security of such series, ratably to the aggregate of such principal
and premium, if any, and accrued and unpaid interest.
47
Any surplus then remaining shall be paid to the Company or to such other Persons
as shall be entitled to receive it.
SECTION 7.06. Control by Holders; Waiver of Past Defaults. The holders
of a majority in principal amount of the Securities of any series at the time
Outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee hereunder, or of exercising any trust or
power hereby conferred upon the Trustee with respect to the Securities of such
series, provided, however, that, subject to the provisions of Sections 11.01 and
11.02, the Trustee shall have the right to decline to follow any such direction
if the Trustee being advised by counsel determines that the action so directed
may not lawfully be taken or would be unduly prejudicial to holders not joining
in such direction or would involve the Trustee in personal liability. Prior to
any declaration accelerating the Maturity of the Securities of any series, the
holders of a majority in aggregate principal amount of such series of Securities
at the time Outstanding may on behalf of the holders of all of the Securities of
such series waive any past Default or Event of Default hereunder and its
consequences except a Default in the payment of interest or any premium on or
the principal of the Securities of such series. Upon any such waiver the
Company, the Guarantor, the Trustee and the holders of the Securities of such
series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereon. Whenever any Default
or Event of Default hereunder shall have been waived as permitted by this
Section 7.06, said Default or Event of Default shall for all purposes of the
Securities of such series and this Indenture be deemed to have been cured and to
be not continuing.
SECTION 7.07. Limitation on Suits. No holder of any Security of any
series shall have any right to institute any action, suit or proceeding at law
or in equity for the execution of any trust hereunder or for the appointment of
a receiver or for any other remedy hereunder, in each case with respect to an
Event of Default with respect to such series of Securities, unless such holder
previously shall have given to the Trustee written notice of the happening of
one or more of the Events of Default herein specified with respect to such
series of Securities, and unless also the holders of 25% in principal amount of
the Securities of such series then Outstanding shall have requested the Trustee
in writing to take action in respect of the matter complained of, and unless
also there shall have been offered to the Trustee security and indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred
therein or thereby, and the Trustee, for 60 days after receipt of such
notification, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding; and such notification, request
and offer of indemnity are hereby declared in every such case to be conditions
precedent to any such action, suit or proceeding by any holder of any Security
of such series; it being understood and intended that no one or more of the
holders of Securities of such series shall have any right in any manner
whatsoever by his or their action to enforce any right hereunder, except in the
manner herein provided, and that every action, suit or proceeding at law or in
equity shall be instituted, had and maintained in the manner herein provided and
for the equal benefit of all holders of the Outstanding Securities of such
series; provided, however, that nothing in this Indenture or in the Securities
of such series shall affect or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on the Securities of such series to the respective holders of such
Securities at the
48
respective due dates in such Securities stated, or affect or impair the right,
which is also absolute and unconditional, of such holders to institute suit to
enforce the payment thereof.
SECTION 7.08. Undertaking for Costs. All parties to this Indenture and
each holder of any Security, by such holder's acceptance thereof, shall be
deemed to have agreed that any court may in its discretion require, in any
action, suit or proceeding for the enforcement of any right or remedy under this
Indenture, or in any action, suit or proceeding against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such action, suit or proceeding of an undertaking to pay the costs of such
action, suit or proceeding, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such action, suit or proceeding, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section 7.08 shall not apply to any action,
suit or proceeding instituted by the Trustee, to any action, suit or proceeding
instituted by any one or more holders of Securities holding in the aggregate
more than 10% in principal amount of the Securities of any series Outstanding,
or to any action, suit or proceeding instituted by any holder of Securities of
any series for the enforcement of the payment of the principal of or premium, if
any, or the interest on, any of the Securities of such series, on or after the
respective due dates expressed in such Securities.
SECTION 7.09. Remedies Cumulative. No remedy herein conferred upon or
reserved to the Trustee or to the holders of Securities of any series is
intended to be exclusive of any other remedy or remedies, and each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute. No
delay or omission of the Trustee or of any holder of the Securities of any
series to exercise any right or power accruing upon any Default or Event of
Default shall impair any such right or power or shall be construed to be a
waiver of any such Default or Event of Default or an acquiescence therein; and
every power and remedy given by this Article Seven to the Trustee and to the
holders of Securities of any series, respectively, may be exercised from time to
time and as often as may be deemed expedient by the Trustee or by the holders of
Securities of such series, as the case may be. In case the Trustee or any holder
of Securities of any series shall have proceeded to enforce any right under this
Indenture and the proceedings for the enforcement thereof shall have been
discontinued or abandoned because of waiver or for any other reason or shall
have been adjudicated adversely to the Trustee or to such holder of Securities,
then and in every such case the Company, the Guarantor, the Trustee and the
holders of the Securities of such series shall severally and respectively be
restored to their former positions and rights hereunder, and thereafter all
rights, remedies and powers of the Trustee and the holders of the Securities of
such series shall continue as though no such proceedings had been taken, except
as to any matters so waived or adjudicated.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Evidence of Action of Securityholders. Whenever in this
Indenture it is provided that the holders of a specified percentage or a
majority in aggregate principal amount of the Securities or of any series of
Securities may take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of
49
any other action), the fact that at the time of taking any such action the
holders of such specified percentage or majority have joined therein may be
evidenced by (a) any instrument or any number of instruments of similar tenor
executed by Securityholders in person or by agent or proxy appointed in writing
(such action becoming effective, except as herein otherwise expressly provided,
when such instrument or instruments are delivered to the Trustee and, where it
is hereby expressly required, to the Company), or (b) by the record of the
holders of Securities voting in favor thereof at any meeting of Securityholders
duly called and held in accordance with the provisions of Article Seven, or (c)
by a combination of such instrument or instruments and any such record of such a
meeting of Securityholders.
SECTION 8.02. Proof of Execution or Holding of Securities. Proof of
the execution of any instrument by a Securityholder or his agent or proxy and
proof of the holding by any Person of any of the Securities shall be sufficient
if made in the following manner:
(a) The fact and date of the execution by any Person of any such
instrument may be proved (a) by the certificate of any notary public or other
officer in any jurisdiction who, by the laws thereof, has power to take
acknowledgments or proof of deeds to be recorded within such jurisdiction, that
the Person who signed such instrument did acknowledge before such notary public
or other officer the execution thereof, or (b) by the affidavit of a witness of
such execution sworn to before any such notary or other officer. Where such
execution is by a Person acting in other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(b) The ownership of Registered Securities of any series shall be
proved by the Register of such Securities or by a certificate of the Registrar
for such series.
(c) The ownership of Bearer Securities shall be proved by production
of such Bearer Securities or by a certificate executed by any bank or trust
company, which certificate shall be dated and shall state on the date thereof a
Bearer Security bearing a specified identifying number or other xxxx was
deposited with or exhibited to the person executing such certificate by the
person named in such certificate, or by any other proof of possession reasonably
satisfactory to the Trustee. The holding by the person named in any such
certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Securities shall be produced, (2) such Bearer Security shall be
produced by some other Person, (3) such Bearer Security shall have been
registered on the Register, if, pursuant to Section 3.01, such Bearer Security
can be so registered, or (4) such Bearer Security shall have been canceled or
paid.
(d) The record of any holders' meeting shall be proved in the manner
provided in Section 9.06.
(e) The Trustee may require such additional proof of any matter
referred to in this Section 8.02 as it shall deem appropriate or necessary, so
long as the request is a reasonable one.
(f) If the Company shall solicit from the holders of Securities of any
series any action, the Company may, at its option, by Board Resolution, fix in
advance a record date for
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the determination of holders of Registered Securities entitled to take such
action, but the Company shall have no obligation to do so. Any such record date
shall be fixed at the Company's discretion. If such a record date is fixed, such
action may be sought or given before or after the record date, but only the
holders of Registered Securities of record at the close of business on such
record date shall be deemed to be holders of Registered Securities for the
purpose of determining whether holders of the requisite proportion of
Outstanding Securities of such series have authorized or agreed or consented to
such action, and for that purpose the Outstanding Registered Securities of such
series shall be computed as of such record date.
SECTION 8.03. Persons Deemed Owners.
(a) The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Registered Security is registered
as the owner of such Registered Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to Section 3.08) interest, if
any, on, such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary. The Company, the Trustee, and any agent of the Company or the Trustee
may treat the holder of any Bearer Security or of any Coupon as the absolute
owner of such Bearer Security or Coupon for the purposes of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Bearer Security or Coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or any Trustee shall be affected by notice
to the contrary. All payments made to any holder, or upon his order, shall be
valid, and, to the extent of the sum or sums paid, effectual to satisfy and
discharge the liability for moneys payable upon such Security or Coupon.
(b) None of the Company, the Trustee, any Paying Agent or the
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 8.04. Revocation of Consents. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 8.01, of the taking
of any action by the holders of the percentage in aggregate principal amount of
the Securities or of any series of Securities specified in this Indenture in
connection with such action, any holder of a Security which is shown by the
evidence to be included in the Securities the holders of which have consented to
such action may, by filing written notice with the Trustee at its principal
office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Security. Except as aforesaid, any such action taken by
the holder of any Security shall be conclusive and binding upon such holder and
upon all future holders of such Security, and all past, present and future
holders of Coupons, if any, appertaining thereto and of any Securities and
Coupons issued on transfer or in lieu thereof or in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon such Security or Coupons or such other Securities or Coupons or any
Security or Coupons issued in exchange or substitution therefor.
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ARTICLE IX
SECURITYHOLDERS' MEETINGS
SECTION 9.01. Purposes of Meetings. A meeting of Securityholders of
any or all series may be called at any time and from time to time pursuant to
the provisions of this Article Nine for any of the following purposes:
(a) to give any notice to the Company, the Guarantor or to the
Trustee, or to give any directions to the Trustee, or to consent to the waiving
of any Default hereunder and its consequences, or to take any other action
authorized to be taken by Securityholders pursuant to any of the provisions of
Article Eight;
(b) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article Eleven;
(c) to consent to the execution of an Indenture or of indentures
supplemental hereto pursuant to the provisions of Section 14.02; or
(d) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of the Securities of any
one or more or all series, as the case may be, under any other provision of this
Indenture or under applicable law.
SECTION 9.02. Call of Meetings by Trustee. The Trustee may at any time
call a meeting of all Securityholders of all series that may be affected by the
action proposed to be taken, to take any action specified in Section 8.01, to be
held at such time and at such place in the Borough of Manhattan, The City of New
York, as the Trustee shall determine. Notice of every meeting of the
Securityholders of a series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be mailed to holders of Securities of such series at their addresses as
they shall appear on the Register of the Company. Such notice shall be mailed
not less than 20 nor more than 90 days prior to the date fixed for the meeting.
SECTION 9.03. Call of Meetings by Company or Securityholders. In case
at any time the Company, pursuant to a resolution of its Board of Directors, or
the holders of at least 10% in aggregate principal amount of the Securities of a
series (or of all series, as the case may be) then Outstanding that may be
affected by the action proposed to be taken, shall have requested the Trustee to
call a meeting of Securityholders of such series (or of all series), by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or such
Securityholders may determine the time and the place in said Borough of
Manhattan for such meeting and may call such meeting to take any action
authorized in Section 9.01, by mailing notice thereof as provided in Section
9.02.
SECTION 9.04. 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 affected by the action proposed to be taken at the meeting or (b) be
a Person appointed by an instrument in writing as proxy by a holder of one or
more such Securities. The only Persons who shall be
52
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 and any
representatives of the Trustee and its counsel and any representatives of the
Company, the Guarantor and their respective counsel.
SECTION 9.05. Regulation of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Securityholders, 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.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Securityholders as provided in Section 9.03, in which case the
Company or the Securityholders 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 majority vote of the meeting.
(c) At any meeting of Securityholders of a series, each Securityholder
of such series of such Securityholder's proxy shall be entitled to one vote for
each $1,000 principal amount of Securities of such series Outstanding 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 other than by virtue of Securities of such
series held by him or her or instruments in writing as aforesaid duly
designating him or her as the Person to vote on behalf of other Securityholders.
At any meeting of the Securityholders duly called pursuant to the provisions of
Section 9.02 or 9.03 the presence of Persons holding or representing Securities
in an aggregate principal amount sufficient to take action upon the business for
the transaction of which such meeting was called shall be necessary to
constitute a quorum, and any such meeting may be adjourned from time to time by
a majority of those present, whether or not constituting a quorum, and the
meeting may be held as so adjourned without further notice.
SECTION 9.06. Voting. The vote upon any resolution submitted to any
meeting of Securityholders of a series shall be by written ballots on which
shall be subscribed the signatures of the holders of Securities of such series
or of their representatives by proxy and the principal amounts of the Securities
of such series held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders 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 as provided in Section 9.02. The record
shall show the principal amounts of the Securities voting in favor of or against
any resolution. The record shall be signed and
53
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 9.07. No Relay of Rights by Meeting. Nothing contained in this
Article Nine shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Securityholders of any 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
to the Securityholders of such series under any of the provisions of this
Indenture or of the Securities of such series.
ARTICLE X
REPORTS BY THE COMPANY, THE GUARANTOR AND THE TRUSTEE AND
SECURITYHOLDERS' LISTS
SECTION 10.01. Reports by Trustee.
(a) The Trustee shall transmit to holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided thereto. If required
by Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days
after each May 15 following the date of this Indenture deliver to holders a
brief report, dated as of such May 15, which complies with the provisions of
such Section 313(a).
(b) The Trustee shall, at the time of the transmission to the holders
of Securities of any report pursuant to the provisions of this Section 10.01,
file a copy of such report with each stock exchange upon which the Securities
are listed and also with the SEC in respect of a Security listed and registered
on a national securities exchange. The Company agrees to notify the Trustee
when, as and if the Securities become listed on any stock exchange.
The Company will reimburse the Trustee for all expenses incurred in the
preparation and transmission of any report pursuant to the provisions of this
Section 10.01 and of Section 10.02.
SECTION 10.02. Reports by the Company and the Guarantor.
(a) Unless available on XXXXX, the Company and the Guarantor shall
file with the Trustee, within 30 days after the Company or the Guarantor, as
applicable, shall be required so to file the same with the SEC, copies of the
annual reports and of the information, documents and other reports which the
Company or the Guarantor may be required to file with the SEC pursuant to the
provisions of Section 13 or Section 15(d) of the Exchange Act (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe); or, if either the Company or the Guarantor is not required to file
information, documents or reports pursuant to the provisions of either of such
Sections, then the Company or the Guarantor, as applicable, will file with the
Trustee and the SEC, in accordance with rules and regulations
54
prescribed by the SEC, such of the supplementary and periodic information,
documents and reports which may be required pursuant to the provisions of
Section 13 of the Exchange Act, in respect of a Security listed and registered
on a national securities exchange, as may be prescribed in such rules and
regulations.
(b) The Company and the Guarantor shall file with the Trustee and the
SEC, in accordance with rules and regulations prescribed by the SEC, such
additional information, documents and reports with respect to compliance by the
Company and the Guarantor, as applicable, with the conditions and covenants
provided for in this Indenture as may be required by such rules and regulations.
(c) The Company and the Guarantor shall transmit to the holders of
Securities, within 30 days after the filing thereof with the Trustee (unless
some other time shall be fixed by the SEC in respect of a Security listed and
registered on a national securities exchange), in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, such summaries of any
information, documents and reports required to be filed by the Company or the
Guarantor, as applicable, pursuant to the provisions of subdivisions (a) and (b)
of this Section 10.02 as may be required by rules and regulations prescribed
from time to time by the SEC.
(d) Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's and the
Guarantor's compliance, as applicable, with any of its covenants hereunder (as
to which the Trustee is entitled to conclusively rely exclusively on Officer's
Certificates).
SECTION 10.03. Securityholders' Lists. The Company covenants and
agrees that it will furnish or cause to be furnished to the Trustee:
(a) semi-annually, within 15 days after each Record Date, but in any
event not less frequently than semi-annually, a list in such form as the Trustee
may reasonably require of the names and addresses of the holders of Securities
to which such Record Date applies, as of such Record Date, 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 content as of a date not more than 15 days prior to the time such list is
furnished;
provided, however, that so long as the Trustee shall be the Registrar, such
lists shall not be required to be furnished.
ARTICLE XI
CONCERNING THE TRUSTEE
SECTION 11.01. Rights of Trustees; Compensation and Indemnity. The
Trustee accepts the trusts created by this Indenture upon the terms and
conditions hereof,
55
including the following, to all of which the parties hereto and the holders from
time to time of the Securities agree:
(a) The Trustee shall be entitled to such compensation as the Company
and the Trustee shall from time to time agree in writing for all services
rendered by it hereunder (including in any agent capacity in which it acts). The
compensation of the Trustee shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust. The Company shall
reimburse the Trustee promptly upon its request for all reasonable out-of-pocket
expenses, disbursements and advances incurred or made by the Trustee (including
the reasonable 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. The Company also agrees to indemnify each of the Trustee and any
predecessor Trustee hereunder for, and to hold it harmless against, any and all
loss, liability, damage, claim, or expense incurred without its own negligence
or bad faith, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder and the performance of its
duties (including in any agent capacity in which it acts), as well as the costs
and expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder. As
security for the performance of the obligations of the Company under this
subdivision (a) the Trustee shall have a lien therefor on any moneys held by the
Trustee hereunder prior to any rights therein of the holders of the Securities.
Notwithstanding any provisions of this Indenture to the contrary, the
obligations of the Company to compensate and indemnify the Trustee under this
Section 11.01(a) shall survive the resignation or removal of the Trustee and any
satisfaction and discharge under Article Twelve.
When the Trustee incurs expenses or renders services after an Event of
Default specified in clause (e) or (f) of Section 7.01 occurs, the expenses and
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
similar laws.
(b) The Trustee may execute any of the trusts or powers hereof and
perform any duty hereunder either directly or by its agents and attorneys and
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
(c) The Trustee shall not be responsible in any manner whatsoever for
the correctness of the recitals herein or in the Securities (except its
certificates of authentication thereon) contained, all of which are made solely
by the Company or the Guarantor; and the Trustee shall not be responsible or
accountable in any manner whatsoever for or with respect to the validity or
execution or sufficiency of this Indenture or of the Securities (except its
certificates of authentication thereon), and the Trustee makes no representation
with respect thereto. The Trustee shall not be accountable for the use or
application by the Company of any Securities, or the proceeds of any Securities,
authenticated and delivered by the Trustee in conformity with the provisions of
this Indenture.
(d) The Trustee may consult with counsel of its selection, and, to the
extent permitted by Section 11.02, any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or suffered
by the Trustee hereunder in good faith and in accordance with such Opinion of
Counsel.
56
(e) The Trustee, to the extent permitted by Section 11.02, may rely
upon the certificate of the Secretary or one of the Assistant Secretaries of the
Company or the Guarantor, as applicable, as to the adoption of any resolution by
the Board of Directors or stockholders of the Company or the Guarantor, and any
request, direction, order or demand of the Company or the Guarantor mentioned
herein shall be sufficiently evidenced by, and whenever in the administration of
this Indenture the Trustee shall deem it desirable that a matter be proved or
established prior to taking, offering or omitting any action hereunder, the
Trustee may rely upon, an Officers' Certificate of the Company or the Guarantor,
as applicable (unless other evidence in respect thereof be herein specifically
prescribed).
(f) The Trustee or any agent of the Trustee, 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 Trust Indenture Act, may otherwise deal with each
of the Company and the Guarantor with the same rights it would have had if it
were not the Trustee or such agent.
(g) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company or the Guarantor, as the case may
be.
(h) Any action taken by the Trustee pursuant to any provision hereof
at the request or with the consent of any Person who at the time is the holder
of any Security shall be conclusive and binding in respect of such Security upon
all future holders thereof or of any Security or Securities which may be issued
for or in lieu thereof in whole or in part, whether or not such Security shall
have noted thereon the fact that such request or consent had been made or given.
(i) Subject to the provisions of Section 11.02, the Trustee may
conclusively rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, debenture or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties.
(j) Subject to the provisions of Section 11.02, the Trustee shall not
be under any obligation to exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of any of the holders of the
Securities, pursuant to any provision of this Indenture, unless one or more of
the holders of the Securities shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities which
may be incurred by it therein or thereby.
(k) Subject to the provisions of Section 11.02, the Trustee shall not
be liable for any action taken or omitted by it in good faith and believed by it
to be authorized or within its discretion or within the rights or powers
conferred upon it by this Indenture.
(l) Subject to the provisions of Section 11.02, the Trustee shall not
be deemed to have knowledge or notice of any Default or Event of Default unless
a Responsible Officer of the Trustee has actual knowledge thereof or unless the
holders of not less than 25% of the Outstanding Securities notify the Trustee
thereof.
57
(m) Subject to the provisions of the first paragraph of Section 11.02,
the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney at the
sole cost of the Company and shall incur no liability or additional liability of
any kind by reason of such inquiry or investigation.
(n) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder.
(o) The Trustee may request that the Company deliver a certificate
setting forth the names of individuals and/or titles of officers authorized at
such time to take specified actions pursuant to this Indenture.
SECTION 11.02. Duties of Trustee.
(a) If one or more of the Events of Default specified in Section 7.01
with respect to the Securities of any series shall have happened, then, during
the continuance thereof, the Trustee shall, with respect to such Securities,
exercise such of the rights and powers vested in it by this Indenture, and shall
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(b) None of the provisions of this Indenture shall be construed as
relieving the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that, anything
in this Indenture contained to the contrary notwithstanding,
(i) unless and until an Event of Default specified in Section 7.01
with respect to the Securities of any series shall have happened which at
the time is continuing,
(A) the Trustee undertakes to perform such duties and only such duties
with respect to the Securities of that series as are specifically set out
in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee, whose duties and obligations shall
be determined solely by the express provisions of this Indenture; and
(B) the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, in the
absence of bad faith on the part of the Trustee, upon certificates and
opinions furnished to it pursuant to the express provisions of this
Indenture; but in the case of any such certificates or opinions which, by
the provisions of this Indenture, are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they
58
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein);
(ii) the Trustee shall not be liable to any holder of Securities or to
any other Person for any error of judgment made in good faith by a
Responsible Officer or Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable to any holder of Securities or
to any other Person with respect to any action taken or omitted to be taken
by it in good faith, in accordance with the direction of Securityholders
given as provided in Section 7.06, relating to the time, method and place
of conducting any proceeding for any remedy available to it or exercising
any trust or power conferred upon it by this Indenture.
(c) None of the provisions of this Indenture shall be construed as
requiring the Trustee to expend or risk its own funds or otherwise to 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 there shall be reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 11.02.
SECTION 11.03. Notice of Defaults. Within 90 days after the occurrence
thereof, the Trustee shall give to the holders of the Securities and Coupons of
a series notice of each Default with respect to the Securities or Coupons, if
any, of such series known to the Trustee, by transmitting such notice to holders
at their addresses as the same shall then appear on the Register of the Company,
unless such Default shall have been cured before the giving of such notice (the
term "Default" being hereby defined to be the events specified in Section 7.01,
which are, or after notice or lapse of time or both would become, Events of
Default as defined in said Section); but, unless such Default be the failure to
pay the principal of, premium, if any, or interest on any of the Securities or
Coupons, if any, of such series when and as the same shall become payable, or to
make any sinking fund payment as to Securities of the same series, the Trustee
shall be protected in withholding such notice, if and so long as the Board of
Directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the holders of the Securities
of such series.
SECTION 11.04. Eligibility; Disqualification.
(a) The Trustee shall at all times satisfy the requirements of TIA
Section 310(a). The Trustee shall have a combined capital and surplus of at
least $50 million as set forth in its more recent published annual report of
condition, and shall have its Corporate Trust Office or an agency in New York,
New York; provided, however, that if Section 310(a) of the Trust Indenture Act
or the rules and regulations of the Commission under the Trust Indenture Act at
any time permit a corporation organized and doing business under the laws of any
other jurisdiction to serve as trustee of an indenture qualified under the Trust
Indenture Act, this
59
Section 11.04 shall be automatically amended to permit a corporation organized
and doing business under the laws of any such other jurisdiction to serve as
Trustee hereunder. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of federal, state, territorial
or District of Columbia supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
(b) The Trustee shall comply with TIA Section 310(b); provided,
however, that there shall be excluded from the operation of TIA Section
310(b)(i) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company or
the Guarantor are outstanding if the requirements for such exclusion set forth
in TIA Section 310(b)(i) are met. If the Trustee has or shall acquire a
conflicting interest within the meaning of Section 310(b) of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture. If Section 310(b) of the Trust Indenture Act
is amended any time after the date of this Indenture to change the circumstances
under which a Trustee shall be deemed to have a conflicting interest with
respect to the Securities of any series or to change any of the definitions in
connection therewith, this Section 11.04 shall be automatically amended to
incorporate such changes.
SECTION 11.05. Registration and Notice; Removal. The Trustee, or any
successor to it hereafter appointed, may at any time resign and be discharged of
the trusts hereby created with respect to any one or more or all series of
Securities by giving to the Company and to the Guarantor notice in writing and
by mailing notice thereof to the holders of Securities of such series at their
addresses as the same shall then appear in the Register of the Company. Such
resignation shall take effect upon the appointment of a successor Trustee and
the acceptance of such appointment by such successor Trustee. Any Trustee
hereunder may be removed with respect to any series of Securities at any time by
the filing with such Trustee and the delivery to the Company and to the
Guarantor of an instrument or instruments in writing signed by the holders of a
majority in principal amount of the Securities of such series then Outstanding,
specifying such removal and the date when it shall become effective.
Upon its resignation or removal, any Trustee shall be entitled to the
payment of reasonable compensation for the services rendered hereunder by such
Trustee and to the payment of all reasonable expenses incurred hereunder and all
moneys then due to it hereunder. The Trustee's rights to indemnification
provided in Section 11.01(a) shall survive its resignation or removal.
SECTION 11.06. Successor Trustee by Appointment.
(a) In case at any time the Trustee shall resign, or shall be removed
(unless the Trustee shall be removed as provided in Section 11.04(b), in which
event the vacancy shall be filled as provided in said subdivision), or shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or if
a receiver of the Trustee or of its property shall be appointed, or if any
public officer shall take charge or control of the Trustee or of its property or
60
affairs for the purpose of rehabilitation, conservation or liquidation with
respect to the Securities of one or more series, a successor Trustee with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any series) may be appointed by the holders of
a majority in principal amount of the Securities of that or those series then
Outstanding, by an instrument or instruments in writing signed in duplicate by
such holders and filed, one original thereof with the Company and the other with
the successor Trustee; but, until a successor Trustee shall have been so
appointed by the holders of Securities of that or those series as herein
authorized, the Company by a resolution of its Board of Directors, or, in case
all or substantially all the assets of the Company shall be in the possession of
one or more custodians or receivers lawfully appointed, or of trustees in
bankruptcy or reorganization proceedings (including a trustee or trustees
appointed under the provisions of the federal bankruptcy laws, as now or
hereafter constituted), or of assignees for the benefit of creditors, such
receivers, custodians, trustees or assignees, as the case may be, by an
instrument in writing, shall appoint a successor Trustee with respect to the
Securities of such series. Subject to the provisions of Sections 11.04 and
11.05, upon the appointment as aforesaid of a successor Trustee with respect to
the Securities of any series, the Trustee with respect to the Securities of such
series shall cease to be Trustee hereunder. After any such appointment other
than by the holders of Securities of that or those series, the Person making
such appointment shall forthwith cause notice thereof to be mailed to the
holders of Securities of such series at their addresses as the same shall then
appear on the Register of the Company but any successor Trustee with respect to
the Securities of such series so appointed shall, immediately and without
further act, be superseded by a successor Trustee appointed by the holders of
Securities of such series in the manner above prescribed, if such appointment be
made prior to the expiration of one year from the date of the mailing of such
notice by the Company, or by such receivers, trustees or assignees.
(b) If any Trustee with respect to the Securities of one or more
series shall resign because of conflicting interest as provided in Section
11.04(b) and a successor Trustee shall not have been appointed by the Company or
by the holders of the Securities of such series or, if any successor Trustee so
appointed shall not have accepted its appointment within 30 days after such
appointment shall have been made, the resigning Trustee at the expense of the
Company may apply to any court of competent jurisdiction for the appointment of
a successor Trustee. If in any other case a successor Trustee shall not be
appointed pursuant to the foregoing provisions of this Section 11.06 within
three months after such appointment might have been made hereunder, the holder
of any Security of the applicable series or any retiring Trustee at the expense
of the Company may apply to any court of competent jurisdiction to appoint a
successor Trustee. Such court may thereupon, in any such case, after such
notice, if any, as such court may deem proper and prescribe, appoint a successor
Trustee.
(c) Any successor Trustee appointed hereunder with respect to the
Securities of one or more series shall execute, acknowledge and deliver to its
predecessor Trustee and to the Company, or to the receivers, trustees, assignees
or court appointing it, as the case may be, an instrument accepting such
appointment hereunder, and thereupon such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations with respect to such series
of such predecessor Trustee with like effect as if originally named as Trustee
hereunder, and such predecessor
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Trustee, upon payment of its charges and disbursements then unpaid, shall
thereupon become obligated to pay over, and such successor Trustee shall be
entitled to receive, all moneys and properties held by such predecessor Trustee
as Trustee hereunder. Nevertheless, on the written request of the Company or of
the successor Trustee or of the holders of at least 10% in principal amount of
the Securities of such series then Outstanding, such predecessor Trustee, upon
payment of its said charges and disbursements, shall execute and deliver an
instrument transferring to such successor Trustee upon the trusts herein
expressed all the rights, powers and trusts of such predecessor Trustee and
shall assign, transfer and deliver to the successor Trustee all moneys and
properties held by such predecessor Trustee; and, upon request of any such
successor Trustee, the Company and the Guarantor shall make, execute,
acknowledge and deliver any and all instruments in writing for more fully and
effectually vesting in and confirming to such successor Trustee all such
authority, rights, powers, trusts, immunities, duties and obligations.
SECTION 11.07. Successor Trustee by Merger. Any corporation into which
the Trustee or any successor to it in the trusts created by this Indenture shall
be merged or converted, or any corporation with which it or any successor to it
shall be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee or any such successor to it shall be a
party, or any corporation to which the Trustee or any successor to it shall sell
or otherwise transfer all or substantially all of the corporate trust business
of the Trustee, shall be the successor Trustee under this Indenture without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided that such corporation shall be otherwise qualified and
eligible under this Article. In case at the time such successor to the Trustee
shall succeed to the trusts created by this Indenture with respect to one or
more series of Securities, any of such Securities shall have been authenticated
but not delivered by the Trustee then in office, any successor to such Trustee
may adopt the certificate of authentication of any predecessor Trustee, and
deliver such Securities so authenticated; and in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or authenticate Securities in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 11.08. Right to Rely on Officer's Certificate. Subject to
Section 11.02, and subject to the provisions of Section 16.02 with respect to
the certificates required thereby, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate with respect thereto delivered to the Trustee, and such
Officers' Certificate, in the absence of negligence or bad faith on the part of
the Trustee, shall be full warrant to the Trustee for any action taken, suffered
or omitted by it under the provisions of this Indenture upon the faith thereof.
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SECTION 11.09. Appointment of Authenticating Agent. The Trustee may
appoint an agent (the "Authenticating Agent") reasonably acceptable to the
Company to authenticate the Securities. Unless limited by the terms of such
appointment, any such Authenticating Agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by the Authenticating Agent.
SECTION 11.10. Communications by Holders with Other Holders. Holders
may communicate pursuant to Section 312(b) of the Trust Indenture Act with other
holders with respect to their rights under this Indenture or the Securities. The
Company, the Guarantor, the Trustee, the Registrar and anyone else shall have
the protection of Section 312(c) of the Trust Indenture Act with respect to such
communications.
ARTICLE XII
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 12.01. Applicability of Article. If, pursuant to Section 3.01,
provision is made for the defeasance of Securities of a series and if the
Securities of such series are Registered Securities and denominated and payable
only in U.S. Dollars (except as provided pursuant to Section 3.01), then the
provisions of this Article shall be applicable except as otherwise specified
pursuant to Section 3.01 for Securities of such series. Defeasance provisions,
if any, for Securities denominated in a Foreign Currency or for Bearer
Securities may be specified pursuant to Section 3.01.
SECTION 12.02. Satisfaction and Discharge of Indenture. This
Indenture, with respect to the Securities of any series (if all series issued
under this Indenture are not to be affected), shall, upon Company Request, cease
to be of further effect (except as to any surviving rights of registration of
transfer or exchange of such Securities herein expressly provided for and rights
to receive payments of principal of and premium, if any, and interest on such
Securities and any right to receive additional interest as provided in Section
6.02) and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when,
(a) either:
(i) all Securities and the Coupons, if any, of such series theretofore
authenticated and delivered (other than (i) Coupons appertaining to Bearer
Securities of such series surrendered in exchange for Registered Securities
of such series and maturing after such exchange, surrender of which is not
required or has been waived as provided in Section 3.06, (ii) Securities
and Coupons of such series that have been destroyed, lost or stolen and
that have been replaced or paid as provided in Section 3.07, (iii) Coupons
appertaining to Bearer Securities of such series called for redemption and
maturing after the relevant Redemption Date, surrender of which has been
waived as provided in Section 4.06 and (iv) Securities and Coupons 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 6.04) have
been delivered to the Trustee for cancellation; or
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(ii) all Securities and the Coupons, if any, of such series not
theretofore delivered to the Trustee for cancellation,
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity within one
year, or
(C) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Paying Agent as trust funds in
trust for the purpose an amount in the Currency in which such Securities
are denominated (except as otherwise provided pursuant to Section 3.01)
sufficient to pay and discharge the entire indebtedness on such Securities
for principal and premium, if any, and interest to the date of such deposit
(in the case of Securities and Coupons that have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be; provided,
however, in the event a petition for relief under federal bankruptcy laws,
as now or hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, is filed with respect to the
Company within 91 days after the deposit and the Trustee is required to
return the moneys then on deposit with the Trustee to the Company, the
obligations of the Company under this Indenture with respect to such
Securities shall not be deemed terminated or discharged;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) 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 such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 11.01 are, if money
shall have been deposited with the Trustee pursuant to subclause (B) of clause
(1) of this Section, the obligations of the Trustee under Section 12.07 and the
last paragraph of Section 6.04(e) shall survive.
SECTION 12.03. Defeasance upon Deposit of Moneys or U.S Government
Obligations. At the Company's option, either (a) the Company shall be deemed to
have been Discharged (as defined below) from its obligations with respect to
Securities of any series on the first day after the applicable conditions set
forth below have been satisfied or (b) the Company shall cease to be under any
obligation to comply with any term, provision or condition set forth in Section
6.05 with respect to Securities of any series (and, if so specified pursuant to
Section 3.01, any other restrictive covenant added for the benefit of such
series pursuant to Section 3.01) at any time after the applicable conditions set
forth below have been satisfied:
(a) The Company shall have deposited or caused to be deposited
irrevocably with the Paying Agent as trust funds in trust, specifically pledged
as security for, and dedicated
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solely to, the benefit of the holders of the Securities of such series (i) money
in an amount, or (ii) U.S. Government Obligations (as defined below) that
through the payment of interest and principal in respect thereof in accordance
with their terms will provide, not later than one day before the due date of any
payment, money in an amount or (iii) a combination of (i) and (ii), sufficient
to pay and discharge each installment of principal (including any mandatory
sinking fund payments) of and premium, if any, and interest on, the Outstanding
Securities of such series on the dates such installments of interest or
principal and premium are due;
(b) If the Securities of such series are then listed on the New York
Stock Exchange, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Company's exercise of its option under this
Section would not cause such Securities to be delisted;
(c) No Event of Default or event (including such deposit) that, with
notice or lapse of time, or both, would become an Event of Default with respect
to the Securities of such series shall have occurred and be continuing on the
date of such deposit; and
(d) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that holders of the Securities of such series will not
recognize income, gain or loss for U.S. federal income tax purposes as a result
of the Company's exercise of its option under this Section and will be subject
to federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if such action had not been exercised and, in
the case of the Securities of such series being Discharged accompanied by a
ruling to that effect received from or published by the Internal Revenue
Service.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of holders of Securities of such series to receive,
from the trust fund described in clause (a) above, payment of the principal of
and premium, if any, and interest on such Securities when such payments are due,
(B) the Company's obligations with respect to Securities of such series under
Sections 3.04, 3.06, 3.07, 6.03, 12.06 and 12.07 and (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the timely of
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, that, in either case under clauses (i) or (ii)
are not callable or redeemable at the action of the issuer thereof, and shall
also include a depositary receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depositary receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depositary receipt.
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SECTION 12.04. Repayment to Company. The Trustee and any Paying Agent
shall promptly pay to the Company (or to its designee) upon Company Request any
excess moneys or U.S. Government Obligations held by them at any time, including
any such moneys or obligations held by the Trustee under any escrow trust
agreement entered into pursuant to Section 12.06. The provisions of the last
paragraph of Section 6.04 shall apply to any money held by the Trustee or any
Paying Agent under this Article that remains unclaimed for two years after the
Maturity of any series of Securities for which money or U.S. Government
Obligations have been deposited pursuant to Section 12.03.
SECTION 12.05. Indemnity for U.S. Government Obligations. The Company
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the deposited U.S. Government Obligations or the
principal or interest received on such U.S. Government Obligations.
SECTION 12.06. Deposits to Be Held in Escrow. Any deposits with the
Paying Agent referred to in Section 12.03 above shall be irrevocable (except to
the extent provided in Sections 12.04 and 12.07) and shall be made under the
terms of an escrow trust agreement in form and substance satisfactory to the
Trustee. If any Outstanding Securities of a series are to be redeemed prior to
their Stated Maturity, whether pursuant to any optional redemption provisions or
in accordance with any mandatory or optional sinking fund requirement, the
applicable escrow trust agreement shall provide therefor and the Company shall
make such arrangements as are satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company. The agreement shall provide that, upon satisfaction of any mandatory
sinking fund payment requirements, whether by deposit of moneys, application of
proceeds of deposited U.S. Government Obligations or, if permitted, by delivery
of Securities, the Trustee shall pay or deliver over to the Company as excess
moneys pursuant to Section 12.04 all funds or obligations then held under the
agreement and allocable to the sinking fund payment requirements so satisfied.
If Securities of a series with respect to which such deposits are made may
be subject to later redemption at the option of the Company or pursuant to
optional sinking fund payments, the applicable escrow trust agreement may, at
the option of the Company, provide therefor. In the case of an optional
redemption in whole or in part, such agreement shall require the Company to
deposit with the Trustee on or before the date notice of redemption is given
funds sufficient to pay the Redemption Price of the Securities to be redeemed
together with all unpaid interest thereon to the Redemption Date. Upon such
deposit of funds, the Trustee shall pay or deliver over to the Company as excess
funds pursuant to Section 12.04 all funds or obligations then held under such
agreement and allocable to the Securities to be redeemed. In the case of
exercise of optional sinking fund payment rights by the Company, such agreement
shall, at the option of the Company, provide that upon deposit by the Company
with the Trustee of funds pursuant to such exercise the Trustee shall pay or
deliver over to the Company as excess funds pursuant to Section 12.04 all funds
or obligations then held under such agreement for such series and allocable to
the Securities to be redeemed.
SECTION 12.07. Application of Trust Money.
(a) Neither the Trustee nor any other paying agent shall be required
to pay interest on any moneys deposited pursuant to the provisions of this
Indenture, except such as it
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shall agree with the Company to pay thereon. Any moneys so deposited for the
payment of the principal of, or premium, if any, or interest on the Securities
of any series and remaining unclaimed for two years after the date of the
maturity of the Securities of such series or the date fixed for the redemption
of all the Securities of such series at the time outstanding, as the case may
be, shall be repaid by the Trustee or such other paying agent to the Company
upon its written request and thereafter, anything in this Indenture to the
contrary notwithstanding, any rights of the holders of Securities of such series
in respect of which such moneys shall have been deposited shall be enforceable
only against the Company, and all liability of the Trustee or such other paying
agent with respect to such moneys shall thereafter cease.
(b) Subject to the provisions of the foregoing paragraph, any moneys
which at any time shall be deposited by the Company or on its behalf with the
Trustee or any other paying agent for the purpose of paying the principal of,
premium, if any, and interest on any of the Securities shall be and are hereby
assigned, transferred and set over to the Trustee or such other paying agent in
trust for the respective holders of the Securities for the purpose for which
such moneys shall have been deposited; but such moneys need not be segregated
from other funds except to the extent required by law.
SECTION 12.08. Deposits of Non-U.S. Currencies. Notwithstanding the
foregoing provisions of this Article, if the Securities of any series are
payable in a Currency other than U.S. Dollars, the Currency or the nature of the
government obligations to be deposited with the Trustee under the foregoing
provisions of this Article shall be as set forth in the Officers' Certificate or
established in the supplemental indenture under which the Securities of such
series are issued.
ARTICLE XIII
IMMUNITY OF CERTAIN PERSONS
SECTION 13.01. No Personal Liability. No recourse shall be had for the
payment of the principal of, or the premium, if any, or interest on, any
Security or Coupon or for any claim based thereon or otherwise in respect
thereof or of the indebtedness represented thereby, or upon any obligation,
covenant or agreement of this Indenture, against any incorporator, stockholder,
officer or director, as such, past, present or future, of the Company, the
Guarantor or of any successor corporation, either directly or through the
Company, the Guarantor or any successor corporation, whether by virtue of any
constitutional provision, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly agreed and understood
that this Indenture, the Securities and the Guarantee endorsed thereon are
solely corporate obligations, and that no personal liability whatsoever shall
attach to, or be incurred by, any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company, the Guarantor or of
any successor corporation, either directly or through the Company, the Guarantor
or any successor corporation, because of the incurring of the indebtedness
hereby authorized or under or by reason of any of the obligations, covenants,
promises or agreements contained in this Indenture or in any of the Securities
or Coupons or the Guarantee endorsed thereon, or to be implied herefrom or
therefrom, and that all liability, if any, of that character against every such
incorporator, stockholder, officer and director is, by the acceptance of the
Securities and the Guarantee endorsed thereon and as a condition of, and as
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part of the consideration for, the execution of this Indenture and the issue of
the Securities expressly waived and released.
ARTICLE XIV
SUPPLEMENTAL INDENTURES
SECTION 14.01. Without Consent of Holders. The Company (when
authorized by resolution of its Board of Directors), the Guarantor and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any one
or more of or all the following purposes:
(a) to add to the covenants and agreements of the Company or the
Guarantor, to be observed thereafter and during the period, if any, in such
supplemental indenture or indentures expressed, and to add Events of Default, in
each case for the protection or benefit of the holders of all or any series of
the Securities (and if such covenants, agreements and Events of Default are to
be for the benefit of fewer than all series of Securities, stating that such
covenants, agreements and Events of Default are expressly being included for the
benefit of such series as shall be identified therein), or to surrender any
right or power herein conferred upon the Company or the Guarantor;
(b) to delete or modify any Events of Default with respect to all or
any series of the Securities, the form and terms of which are being established
pursuant to such supplemental indenture as permitted in Section 3.01 (and, if
any such Event of Default is applicable to fewer than all such series of the
Securities, specifying the series to which such Event of Default is applicable),
and to specify the rights and remedies of the Trustee and the holders of such
Securities in connection therewith;
(c) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of or premium, if any, on
Registered Securities or of principal of or premium, if any, or any interest on
Bearer Securities or to permit Registered Securities to be exchanged for Bearer
Securities; provided that any such action shall not adversely affect the
interests of the holders of Securities or any Coupons of any series in any
material respect, or to permit or facilitate the issuer of Securities of any
series in uncertificated form;
(d) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only when
there is no Outstanding Security or Coupon of any series created prior to the
execution of such supplemental indenture that is entitled to the benefit of such
provision and as to which such supplemental indenture would apply;
(e) to evidence the succession of another corporation to the Company
or the Guarantor, or successive successions, and the assumption by a successor,
transferee or lessee corporation of the covenants and obligations of the Company
or the Guarantor, as applicable, contained in the Securities of one or more
series and in this Indenture or any supplemental indenture;
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(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee 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 for or facilitate the administration of the trusts hereunder
by more than one Trustee, pursuant to the requirements of Section 11.06(c);
(g) to secure the Securities pursuant to the requirements of Section
15.04;
(h) to evidence any changes to Section 11.05 permitted by the terms
thereof;
(i) to cure any ambiguity or to correct or supplement any provision
contained herein or in any indenture supplemental hereto which may be defective
or inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provision in regard to matters or questions
arising under this Indenture which the Board of Directors of the Company and the
Guarantor may deem necessary or desirable and which shall not materially
adversely affect the interests of the holders of the Outstanding Securities or
Coupons, if any;
(j) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities any property or assets which the Guarantor may be
required to convey, transfer, assign, mortgage or pledge in accordance with the
provisions of Section 15.04;
(k) to add to or change or eliminate any provision of this Indenture
as shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act, provided such action shall not adversely affect the
interests of the holders of the Securities of any series or any appurtenant
Coupons in any material respects;
(l) to prohibit the authentication and delivery of additional series
of Securities; or
(m) to establish the form and terms of the Securities of Coupons, if
any, of any series as permitted in Section 3.01, or to authorize the issuance of
additional Securities of a series previously authorized or to add to the
conditions, limitations or restrictions on the authorized amount, terms or
purposes of issue, authentication or delivery of the Securities of any series,
as herein set forth, or other conditions, limitations or restrictions thereafter
to be observed.
Subject to the provisions of Section 14.03, the Trustee is authorized to
join with the Company and the Guarantor in the execution of any such
supplemental indenture, to make the further agreements and stipulations which
may be therein contained and to accept the conveyance, transfer, assignment,
mortgage or pledge of any property or assets thereunder.
Any supplemental indenture authorized by the provisions of this Section
14.01 may be executed by the Company, the Guarantor and the Trustee without the
consent of the holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 14.02.
SECTION 14.02. With Consent of Holders; Limitations.
(a) With the consent (evidenced as provided in Article Eight) of the
holders of a majority in aggregate principal amount of the Outstanding
Securities of each series affected by
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such supplemental indenture voting separately, the Company (when authorized by a
resolution of the Board of Directors), the Guarantor and the Trustee may, from
time to time and at any time, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any provisions of this Indenture or of modifying in any manner the
rights of the holders of the Securities of such series to be affected; provided,
however, that no such supplemental indenture shall, without the consent of the
holder of each Outstanding Security of each such series affected thereby,
(i) extend the Stated Maturity of the principal of, or any installment
of interest on, any Security, or reduce the principal amount thereof or the
interest thereon or any premium payable upon redemption thereof, or extend
the Stated Maturity of or reduce the amount of any payment to be made with
respect to any Coupon, or change the Currency in which the principal of and
premium, if any, or interest on such Security is denominated or payable, or
reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 7.02, or impair the right to institute
suit for the enforcement of any payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date),
or change any obligation of the Company to pay additional interest pursuant
to Section 6.02 (except as contemplated by Section 6.05(b) and permitted by
Section 14.01(e)), or limit the obligation of the Company to maintain a
paying agency outside the United States for payment on Bearer Securities as
provided in Section 6.03, or limit the obligation of the Company to redeem
an Affected Security as provided in Section 4.02(b); or
(ii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose holders is required for any
supplemental indenture, or the consent of whose holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
Defaults hereunder and their consequences provided for in this Indenture;
or
(iii) modify any of the provisions of this Section, Section 7.06 or
Section 6.08, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require
the consent of any holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 6.08, or the
deletion of this proviso, in accordance with the requirements of Sections
11.06 and 14.01(f); or
(iv) modify, without the written consent of the Trustee, the rights,
duties or immunities of the Trustee.
(b) A supplemental indenture that changes or eliminates any provision
of this Indenture which has expressly been included solely for the benefit of
one or more particular series of Securities and Coupons, if any, or which
modifies the rights of the holders of Securities and Coupons, if any, of such
series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the holders of Securities and Coupons,
if any, of any other series.
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(c) It shall not be necessary for the consent of the Securityholders
under this Section 4.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
(d) The Company may set a record date for purposes of determining the
identity of the holders of each series of Securities entitled to give a written
consent or waive compliance by the Company or the Guarantor as authorized or
permitted by this Section. Such record date shall not be more than 30 days prior
to the first solicitation of such consent or waiver or the date of the most
recent list of holders furnished to the Trustee prior to such solicitation
pursuant to Section 312 of the Trust Indenture Act.
(e) Promptly after the execution by the Company, the Guarantor and the
Trustee of any supplemental indenture pursuant to the provisions of this Section
4.02, the Company shall mail a notice, setting forth in general terms the
substance of such supplemental indenture, to the holders of Securities at their
addresses as the same shall then appear in the Register of the Company. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 14.03. Trustee Protected. Upon the request of the Company or
the Guarantor, accompanied by the Officers' Certificate and Opinion of Counsel
required by Section 16.02 and by:
(a) a supplemental indenture duly executed on behalf of the Company
and the Guarantor;
(b) a copy of a resolution of the Board of Directors of the Company,
certified by the Secretary or an Assistant Secretary of the Company and a copy
of an Officer's Certificate of the Company, authorizing the execution of said
supplemental indenture;
(c) a copy of a resolution of the Board of Directors of the Guarantor,
certified by the Secretary or an Assistant Secretary of the Guarantor and a copy
of an Officer's Certificate of the Guarantor, authorizing the execution of said
supplemental indenture;
(d) an Opinion of Counsel, stating that said supplemental indenture
complies with, and that the execution thereof is authorized or permitted by, the
provisions of this Indenture; and
(e) if said supplemental indenture shall be executed pursuant to
Section 4.02, evidence (as provided in Article Eight) of the consent thereto of
the Securityholders required to consent thereto as in Section 4.02 provided,
the Trustee shall join with the Company and the Guarantor in the execution of
said supplemental indenture unless said supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into said supplemental indenture.
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SECTION 14.04. Effect of Execution of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article Fourteen, this Indenture shall be deemed to be modified and amended in
accordance therewith and, except as herein otherwise expressly provided, the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company, the Guarantor and the holders
of all of the Securities or of the Securities of any series affected, as the
case may be, shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 14.05. Notation on or Exchange of Securities. Securities and
Coupons, if any, of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to the provisions of this Article may
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company or the Trustee shall so determine,
new Securities and Coupons, if any, so modified as to conform, in the opinion of
the Trustee and the Board of Directors of the Company, to any modification of
this Indenture contained in any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for the Securities and Coupons, if any, then Outstanding in equal
aggregate principal amounts, and such exchange shall be made without cost to the
holders of the Securities.
SECTION 14.06. Conformity with TIA. Every supplemental indenture
executed pursuant to the provisions of this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
ARTICLE XV
GUARANTEE
SECTION 15.01. Unconditional Guarantee.
(a) The Guarantor does hereby fully and unconditionally guarantee (the
"Guarantee") to the holders all payments on the Securities when due, in
accordance with the provisions of this Indenture, as provided below.
(b) The Guarantor hereby waives notice of acceptance of the Guarantee
and of Default of performance by the Company, and hereby agrees that payment
under the Guarantee shall be subject to no condition other than the giving of a
written request for payment, stating the fact of Default of performance, in the
manner provided in Section 16.07. This Guarantee is a guarantee of payment and
not of collection.
(c) The obligations of the Guarantor under the Guarantee shall in no
way be impaired by: (1) any extension, amendment, modification or renewal of the
Securities; (2) any waiver of any Event of Default, extension of time or failure
to enforce any of the Securities; or (3) any extension, moratorium or other
relief granted to the Company pursuant to any applicable law or statute.
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(d) The Guarantor shall be obligated to make payment under the
Guarantee, for the benefit of the holders, at the same address as the Company is
obligated to make payment.
(e) Subject to clause (f) below, the Guarantor hereby agrees that:
(i) the Securities will be paid strictly in accordance with the terms
of this Indenture, regardless of the value, genuineness, validity,
regularity or enforceability of the Securities, and of any law, regulation
or order now or hereafter in effect in any jurisdiction affecting any of
such terms or the rights of the trustee with respect thereto; and
(ii) the liability of the Guarantor to the extent herein set forth
shall be absolute and unconditional, not subject to any reduction,
limitation, impairment, termination, defense, offset, counterclaim or
recoupment whatsoever (all of which are hereby expressly waived by the
Guarantor) whether by reason of any claim of any character whatsoever,
including, without limitation, any claim of waiver, release, surrender,
alteration or compromise, or by reason of any liability at any time to the
Guarantor or otherwise, whether based upon any obligations or any other
agreement or otherwise, and howsoever arising, whether out of action or
inaction or otherwise and whether resulting from Default, willful
misconduct, negligence or otherwise, and without limiting the foregoing,
irrespective of:
(A) any lack of validity or enforceability of any agreement or
instrument relating to the Securities;
(B) any change in the time, manner or place of payment of, or in any
other term in respect of, all or any of the Securities, or any other
amendment or waiver of or consent to any departure from any other agreement
relating to any Securities;
(C) any increase in, addition to, exchange or release of, or
nonperfection of any lien on or security interest in, any collateral, or
any release or amendment or waiver of or consent to any departure from or
failure to enforce any other guarantee, for all or any of the indebtedness;
(D) any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Company in respect of the Securities;
(E) the absence of any action on the part of the Trustee to obtain
payment of the Securities from the Company;
(F) any insolvency, bankruptcy, reorganization or dissolution, or any
similar proceeding of the Company, including, without limitation, rejection
of the Securities in such bankruptcy; or
(G) the absence of notice or any delay in any action to enforce any
Securities or to exercise any right or remedy against the Guarantor or the
Company, whether hereunder, under any Securities or any agreement or any
indulgence, compromise or extension granted.
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(f) Notwithstanding anything to the contrary in this Guarantee, the
Guarantor does not waive any defense that would be available to the Company
based on a breach, default or misrepresentation by the Trustee, or failure of
any condition to the Company's obligations under this Indenture or the
illegality of any provision of this Indenture.
(g) The Guarantor further agrees that, to the extent that the Company
or the Guarantor makes a payment or payments to the Trustee, which payment or
payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to the
Company or the Guarantor or their respective estate, trustee, receiver or any
other party under any federal bankruptcy laws, state or federal law, common law
or equitable cause, then to the extent of such payment or repayment, this
Guarantee and the advances or part thereof which have been paid, reduced or
satisfied by such amount shall be reinstated and continued in full force and
effect as of the date such initial payment, reduction or satisfaction occurred.
SECTION 15.02. Execution and Delivery of Guarantee.
(a) If an officer whose signature is on this Indenture or the
Guarantee no longer holds that office at the time the Trustee authenticates the
Security on which the Guarantee is endorsed or at any time thereafter, the
Guarantee shall be valid nevertheless.
(b) The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
set forth in this Indenture on behalf of the Guarantor.
SECTION 15.03. Waiver of Subrogation. The Guarantor shall be
subrogated to all rights of the holders of Securities and the Trustee against
the Company in respect of any amounts paid to such holders by the Guarantor
pursuant to the provisions of the Guarantee; provided, however, that the
Guarantor shall not be entitled to enforce, or to receive any payments arising
out of or based upon such right of subrogation until the principal of, interest
on and additional interest, if any, payable in respect of all Securities of the
same series issued under such Indenture shall have been paid in full.
SECTION 15.04. Limitation on Liens.
(a) The Guarantor will not, and will not permit any Subsidiary to,
incur, issue, assume or guarantee any Indebtedness if such Indebtedness is
secured by a pledge of, lien on, or security interest in any shares of Voting
Stock of any Significant Subsidiary, whether such Voting Stock is now owned or
shall hereafter be acquired, without effectively providing that the Securities
(together with, if the Guarantor shall so determine, any other indebtedness or
obligations of the Guarantor or any Subsidiary ranking equally with such
Securities and then existing or thereafter created) shall be secured equally and
ratably with such Indebtedness. For the purposes of the foregoing, pledging,
placing a lien on or creating a security interest in any shares of Voting Stock
of a Significant Subsidiary in order to secure then Outstanding Indebtedness of
the Guarantor or any Subsidiary shall be deemed to be the incurrence, issuance,
assumption or guarantee (as the case may be) of such Indebtedness, but the
foregoing shall not apply to Indebtedness secured by a pledge of, lien on or
security interest in any shares of Voting
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Stock of any corporation at the time it becomes a Significant Subsidiary,
including extensions, renewals and replacements of such Indebtedness without
increase in the amount thereof.
(b) For the purposes of subsection (a) of this Section 15.04, the term
"Voting Stock" shall mean capital stock the holders of which have general voting
power under ordinary circumstances to elect a majority of the board of directors
of a corporation provided that, for the purposes hereof, capital stock which
carries only the right to vote conditioned on the happening of an event shall
not be considered voting stock whether or not such event shall have happened.
(c) For the purposes of subsection (a) of this Section 15.04, the term
"Significant Subsidiary" shall mean a Subsidiary, including its Subsidiaries,
which meets any of the following conditions:
(i) The Guarantor's and its Subsidiaries' investments in and advances
to the Subsidiary exceed 10 percent of the total assets of the Guarantor
and its Subsidiaries consolidated as of the end of the most recently
completed fiscal year;
(ii) The Guarantor's and its Subsidiaries' proportionate share of the
total assets (after inter-company eliminations) of the Subsidiary exceeds
10 percent of the total assets of the Guarantor and its Subsidiaries
consolidated as of the end of the most recently completed fiscal year; or
(iii) The Guarantor's and its Subsidiaries' equity in the income from
continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principle of the Subsidiary
exceeds 10 percent of such income of the Guarantor and its Subsidiaries
consolidated for the most recently completed fiscal year.
(d) For the purposes of making the prescribed income test in clause
(iii) of subsection (c) of this Section 15.04, the following shall be
applicable:
(i) When a loss has been incurred by either the Guarantor and its
Subsidiaries consolidated or the tested Subsidiary, but not both, the
equity in the income or loss of the tested Subsidiary shall be excluded
from the income of the Guarantor and its Subsidiaries consolidated for
purposes of the computation; and
(ii) If income of the Guarantor and its Subsidiaries consolidated for
the most recent fiscal year is at least 10 percent lower than the average
of the income for the last five fiscal years, such average income shall be
substituted for purposes of the computation. Any loss years shall be
omitted for purposes of computing average income.
SECTION 15.05. Merger, Consolidation and Sale of Assets.
(a) The Guarantor will not consolidate with any other entity or accept
a merger of any other entity into the Guarantor or permit the Guarantor to be
merged into any other entity, or sell other than for cash or lease all or
substantially all its assets to another entity, or purchase all or substantially
all the assets of another entity, unless (i) either the Guarantor shall be the
continuing entity, or the successor, transferee or lessee entity (if other than
the
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Guarantor) shall expressly assume, by indenture supplemental hereto satisfactory
to the Trustee, executed and delivered by such entity prior to or simultaneously
with such consolidation, merger, sale or lease, the full, irrevocable and
unconditional guarantee of the payment of principal of and interest and premium,
if any, on all the Securities (and Coupons, if any) when due, and the
performance and observance of all other obligations of the Company to the
holders and the Trustee under this Indenture or under the Securities (and
Coupons, if any), all in accordance with the terms hereof and thereof; and (ii)
immediately after such consolidation, merger, sale, lease or purchase the
Guarantor or the successor, transferee or lessee entity (if other than the
Guarantor) would not be in Default in the performance of any covenant or
condition of this Indenture. A purchase by a Subsidiary of all or substantially
all of the assets of another entity shall not be deemed to be a purchase of such
assets by the Guarantor.
(b) Upon any consolidation with or merger into any other entity, or
any sale, conveyance or lease of all or substantially all of the assets of the
Guarantor in accordance with this Section 15.05, the successor entity formed by
such consolidation or into or with which the Guarantor is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Guarantor under this
Indenture with the same effect as if such successor entity had been named as the
Guarantor herein, and thereafter, except in the case of a lease, the predecessor
Guarantor shall be relieved of all obligations and covenants under the
Guarantee.
SECTION 15.06. Assumption by Guarantor.
(a) The Guarantor may, without the consent of the holders, assume all
of the rights and obligations of the Company hereunder with respect to a series
of Securities and under the Securities of such series if, after giving effect to
such assumption, no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default, shall have occurred
and shall be continuing. Upon such an assumption, the Guarantor shall execute a
supplemental indenture evidencing its assumption of all such rights and
obligations of the Company and the Company shall be released from its
liabilities hereunder and under such Securities as obligor on the Securities of
such series.
(b) The Guarantor shall assume all of the rights and obligations of
the Company hereunder with respect to a series of Securities and under the
Securities of such series, if, upon a Default by the Company in the due and
punctual payment of the principal, sinking fund payment, if any, premium, if
any, or interest on such Securities, the Guarantor is prevented by any court
order or judicial proceeding from fulfilling its obligations under Section 15.01
with respect to such series of Securities. Such assumption shall result in the
Securities of such series becoming the direct obligations of the Guarantor and
shall be effected without the consent of the holders of the Securities of any
series. Upon such an assumption, the Guarantor shall execute a supplemental
indenture evidencing its assumption of all such rights and obligations of the
Company, and the Company shall be released from its liabilities hereunder and
under such Securities as obligor on the Securities of such series.
SECTION 15.07. Article Fifteen Applicable to Paying Agent. At any time
that a Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this Article
Fifteen shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within
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its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article Fifteen in addition to or in place of the Trustee.
SECTION 15.08. No Suspension of Remedies. Nothing contained in this
Article Fifteen shall limit the right of the Trustee or the holders of
Securities to take any action to accelerate the maturity of the Securities
pursuant to Article Seven or to pursue any rights or remedies hereunder or under
applicable law.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
SECTION 16.01. Consolidation, Merger, Sale or Lease.
(a) Subject to the provisions of Sections 6.05 and 15.05, nothing
contained in this Indenture or in the Securities shall be deemed to prevent the
consolidation or merger of the Company or the Guarantor with or into any entity,
or the merger into the Company or the Guarantor of any entity, or the sale or
lease by the Company or the Guarantor of their respective property and assets
as, or substantially as, an entirety, or otherwise.
(b) Upon any consolidation or merger, or any sale other than for cash
or lease of all or substantially all of the assets of the Company or the
Guarantor in accordance with the provisions of Sections 6.05 and 15.05, as
applicable, the entity formed by such consolidation or into which the Company or
the Guarantor shall have been merged or to which such sale or lease shall have
been made shall succeed to and be substituted for the Company or the Guarantor,
as applicable, with the same effect as if it had been named herein as a party
hereto, and thereafter from time to time such entity may exercise each and every
right and power of the Company or the Guarantor, as applicable, under this
Indenture, in the name of the Company or the Guarantor, or in its own name; and
any act or proceeding by any provision of this Indenture required or permitted
to be done by the Board of Directors or any officer of the Company or the
Guarantor may be done with like force and effect by the like board or officer of
any entity that shall at the time be the successor of the Company or the
Guarantor hereunder. In the event of any such sale or conveyance, but not any
such lease, the Company or the Guarantor (or any successor entity which shall
theretofore have become such in the manner described in Sections 6.05 and 15.05,
as applicable) shall be discharged from all obligations and covenants under this
Indenture and the Securities and may thereupon be dissolved and liquidated.
SECTION 16.02. Certificates and Opinions as to Conditions Precedent.
(a) Upon any request or application by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company or
the Guarantor shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent have been complied
with, except that in the case of any such application or demand as to which the
furnishing of such document is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
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(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than the certificates provided pursuant to
Section 6.06 of this Indenture) shall include (i) a statement that the Person
making giving such certificate or opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (iii) a statement that, in the view or opinion
of such Person, he or she has made such examination or investigation as is
necessary to enable such Person to express an informed view or opinion as to
whether or not such covenant or condition has been complied with; and (iv) a
statement as to whether or not, in the view or opinion of such Person, such
condition or covenant has been complied with.
(c) Any certificate, statement or opinion of an officer of the Company
or the Guarantor 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 or
certificate, statement or opinion is based are erroneous. Any certificate,
statement or opinion of counsel may be based, insofar as it relates to factual
matters, upon a certificate, statement or opinion of, or representations by, an
officer or officers of the Company or the Guarantor stating that the information
with respect to such factual matters is in the possession of the Company or the
Guarantor, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate, statement or opinion or representations with
respect to such matters are erroneous.
(d) Any certificate, statement or opinion of an officer of the
Company, the Guarantor or of counsel to the Company or the Guarantor may be
based, insofar as it relates to accounting matters, upon a certificate or
opinion of, or representations by, an accountant or firm of accountants, unless
such officer or counsel, as the case may be, knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the accounting matters upon which his or her certificate,
statement or opinion may be based are erroneous. Any certificate or opinion of
any firm of independent registered public accountants filed with the Trustee
shall contain a statement that such firm is independent.
(e) 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.
(f) 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 16.03. Trust Indenture Act Controls. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or another provision included in this Indenture which is required to
be included in this Indenture by any of
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the provisions of Sections 310 to 318, inclusive, of the Trust Indenture Act,
such imposed duties or incorporated provision shall control.
SECTION 16.04. What Constitutes Action by Board of Directors. Whenever
action is required by this Indenture by the Board of Directors of the Company or
the Guarantor and there is at the time constituted a committee of the Board of
Directors duly authorized to take such action, or a committee of officers or
other representatives of the Company or the Guarantor so authorized by the Board
of Directors, such action by such a committee shall be deemed to be the action
of the Board of Directors and shall be sufficient for all purposes of this
Indenture where action by the Board of Directors is specified.
SECTION 16.05. Notices to the Company, Guarantor and Trustee. Any
notice or demand authorized by this Indenture to be made upon, given or
furnished to, or filed with, the Company, the Guarantor or the Trustee shall be
sufficiently made, given, furnished or filed for all purposes if it shall be
mailed, delivered or telefaxed to:
(a) the Company, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: Assistant Treasurer, fax: (000) 000-0000 or at such other address or
facsimile number as may have been furnished in writing to the Trustee by the
Company.
(b) the Guarantor, at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: General Counsel - Capital Markets, Fax: (000) 000-0000 or at such
other address or facsimile number as may have been furnished in writing to the
Trustee by the Guarantor.
(c) the Trustee, at the Corporate Trust Office of the Trustee.
Any such notice, demand or other document shall be in the English language.
SECTION 16.06. Notices to Holders; Waiver. Any notice required or
permitted to be given to Securityholders shall be sufficiently given (unless
otherwise herein expressly provided),
(a) if to Registered Holders, if given in writing by first class mail,
postage prepaid, to such holders at their addresses as the same shall appear on
the Register of the Company, and
(b) if to holders of Bearer Securities, if published on two separate
Business Days in an Authorized Newspaper or Newspapers in such Place or Places
of Payment specified pursuant to Section 3.01, the first such publication to be
not earlier than the earliest date and not later than two Business Days prior to
the latest date prescribed for the giving of such notice;
provided, however, that, in any case, any notice to holders of Floating Rate
Securities regarding the determination of a periodic rate of interest, if such
notice is required pursuant to Section 3.01, shall be sufficiently given if
given in the manner specified pursuant to Section 3.01.
(c) In the event of suspension of regular mail service or by reason of
any other cause it shall be impracticable to give notice by mail, then such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose hereunder.
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(d) In the event of suspension of publication of any Authorized
Newspapers or by reason of any other cause it shall be impractical to give
notice by publication, then such notification as shall be given with the
approval of the Trustee shall constitute sufficient notice for every purpose
hereunder.
(e) Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance on such waiver. In any case where notice to holders is given
by mail; neither the failure to mail such notice nor any defect in any notice so
mailed to any particular holder shall affect the sufficiency of such notice with
respect to other holders, and any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given. In any case
where notice to holders is given by publication, any defect in any notice so
published as to any particular holder shall not affect the sufficiency of such
notice with respect to other holders, and any notice that is published in the
manner herein provided shall be conclusively presumed to have been duly given.
SECTION 16.07. Legal Holiday. Unless otherwise specified pursuant to
Section 3.01, in any case where any Interest Payment Date, Redemption Date or
Maturity of any Security of any series shall not be a Business Day at any Place
of Payment for the Securities of that series, then payment of principal and
premium, if any, or interest need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on such Interest Payment Date,
Redemption Date or Maturity and no interest shall accrue on such payment for the
period from and after such Interest Payment Date, Redemption Date or Maturity,
as the case may be, to such Business Day if such payment is made or duly
provided for on such Business Day.
SECTION 16.08. Effects 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 16.09. Successors and Assigns. All covenants and agreements in
this Indenture by the parties hereto shall bind their respective successors and
assigns and inure to the benefit of their permitted successors and assigns,
whether so expressed or not.
SECTION 16.10. Separability Clause. In case any provision in this
Indenture or in the Securities or Coupons shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 16.11. Benefits of Indenture. Nothing in this Indenture
expressed and nothing that may be implied from any of the provisions hereof is
intended, or shall be construed, to confer upon, or to give to, any Person or
corporation other than the parties hereto and their successors and the holders
of the Securities any benefit or any right, remedy or claim under or by reason
of this Indenture or any covenant, condition, stipulation, promise or agreement
hereof, and all covenants, conditions, stipulations, promises and agreements in
this Indenture contained shall be for the sole and exclusive benefit of the
parties hereto and their successors and of the holders of the Securities.
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SECTION 16.12. Counterparts Originals. This Indenture may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 16.13. Governing Law. This Indenture, the Securities and the
Coupons shall be deemed to be contracts made under the law of the State of New
York, and for all purposes shall be governed by and construed in accordance with
the law of said State.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
CITIGROUP FUNDING INC.,
as Issuer
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
and Assistant Treasurer
CITIGROUP INC., as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Treasurer
JPMORGAN CHASE BANK, N.A.,
as Trustee
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
