EXHIBIT 4.2.1
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TRIARC COMPANIES, INC.
AND
U.S. BANK NATIONAL ASSOCIATION
TRUSTEE
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FORM OF SENIOR DEBT INDENTURE
DATED AS OF ____________, 200_
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TRIARC COMPANIES, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of ______________, 200_
TRUST INDENTURE ACT SECTION INDENTURE SECTION
310(a)(1) 6.09
(a)(2) 6.09
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 6.08, 6.10
311(a) 6.13
(b) 6.13
(b)(2) 7.03(a), 7.03(b)
312(a) 7.01, 7.02(a)
(b) 7.02(b)
(c) 7.02(c)
313(a) 7.03(a)
(b) 7.03(a)
(c) 7.03(a), 7.03(b)
(d) 7.03(b)
314(a) 7.04
(b) Not Applicable
(c)(1) 1.02
(c)(2) 1.02
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.02
315(a) 6.01(a)
(b) 6.02, 7.03(a)
(c) 6.01(b)
(d) 6.01(c)
(d)(1) 6.01(a), 6.01(c)
(d)(2) 6.01(c)
(d)(3) 6.01(c)
(e) 5.14
316(a)(1)(A) 5.12
(a)(1)(B) 5.02, 5.13
(a)(2) Not Applicable
(b) 5.08
(c) 1.04(e)
317(a)(1) 5.03
(a)(2) 5.04
(b) 10.05
318(a) 1.07
TABLE OF CONTENTS
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ARTICLE 1 Definitions and Other Provisions of General Application......1
Section 1.01 Definitions..............................................1
Section 1.02 Compliance Certificates and Opinions.....................8
Section 1.03 Form of Documents Delivered to Trustee...................9
Section 1.04 Acts of Holders.........................................10
Section 1.05 Notices, Etc., to Trustee and the Company...............11
Section 1.06 Notice to Holders; Waiver...............................12
Section 1.07 Conflict with Trust Indenture Act.......................12
Section 1.08 Effect of Headings and Table of Contents................13
Section 1.09 Successors and Assigns..................................13
Section 1.10 Separability Clause.....................................13
Section 1.11 Benefits of Indenture...................................13
Section 1.12 Governing Law...........................................13
Section 1.13 Legal Holidays..........................................13
Section 1.14 No Recourse Against Others..............................13
Section 1.15 Judgment Currency.......................................14
Section 1.16 Counterparts............................................14
ARTICLE 2 Security Forms..............................................14
Section 2.01 Forms Generally.........................................14
Section 2.02 Form of Face of Security................................15
Section 2.03 Form of Reverse of Security.............................17
Section 2.04 Form of Trustee's Certificate of Authentication.........23
Section 2.05 Securities in Global Form...............................23
Section 2.06 Form of Legend for the Securities in Global Form........24
ARTICLE 3 The Securities..............................................24
Section 3.01 Amount Unlimited; Issuable in Series....................24
Section 3.02 Denominations...........................................27
Section 3.03 Execution, Authentication, Delivery and Dating..........28
Section 3.04 Temporary Securities....................................30
Section 3.05 Registration, Registration of Transfer and Exchange.....30
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities........33
Section 3.07 Payment of Interest; Interest Rights Preserved..........34
Section 3.08 Persons Deemed Owners...................................35
Section 3.09 Cancellation............................................35
Section 3.10 Computation of Interest.................................36
Section 3.11 CUSIP Number............................................36
Section 3.12 Wire Transfers..........................................36
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TABLE OF CONTENTS
(Continued)
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ARTICLE 4 Satisfaction and Discharge..................................36
Section 4.01 Satisfaction and Discharge of Indenture.................36
Section 4.02 Application of Trust Money..............................37
Section 4.03 Reinstatement...........................................38
Section 4.04 Application to a Specific Series of Securities..........38
ARTICLE 5 Remedies....................................................38
Section 5.01 Events of Default.......................................38
Section 5.02 Acceleration of Maturity; Rescission and Annulment......40
Section 5.03 Collection of Indebtedness and Suits for Enforcement
by Trustee..............................................41
Section 5.04 Trustee May File Proofs of Claim........................42
Section 5.05 Trustee May Enforce Claims Without Possession of
Securities..............................................43
Section 5.06 Application of Money Collected..........................43
Section 5.07 Limitation on Suits.....................................44
Section 5.08 Unconditional Right of Holders to Receive Principal,
Premium, Other Amounts and Interest.....................44
Section 5.09 Restoration of Rights and Remedies......................45
Section 5.10 Rights and Remedies Cumulative..........................45
Section 5.11 Delay or Omission Not Waiver............................45
Section 5.12 Control by Holders......................................45
Section 5.13 Waiver of Past Defaults.................................45
Section 5.14 Undertaking for Costs...................................46
ARTICLE 6 The Trustee.................................................46
Section 6.01 Certain Duties and Responsibilities of the Trustee......46
Section 6.02 Notice of Defaults......................................47
Section 6.03 Certain Rights of Trustee...............................47
Section 6.04 Not Responsible for Recitals or Issuance of Securities..48
Section 6.05 May Hold Securities.....................................49
Section 6.06 Money Held in Trust.....................................49
Section 6.07 Compensation and Reimbursement..........................49
Section 6.08 Disqualification; Conflicting Interests.................50
Section 6.09 Corporate Trustee Required; Eligibility.................50
Section 6.10 Resignation and Removal; Appointment of Successor.......50
Section 6.11 Acceptance of Appointment by Successor..................52
Section 6.12 Merger, Conversion, Consolidation or Succession
to Business.............................................53
Section 6.13 Preferential Collection of Claims Against the Company...53
Section 6.14 Appointment of Authenticating Agent.....................53
Section 6.15 Compliance with Tax Laws................................55
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TABLE OF CONTENTS
(Continued)
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ARTICLE 7 Holders' Lists and Reports by Trustee and the Company.......55
Section 7.01 The Company to Furnish Trustee Names and
Addresses of Holders....................................55
Section 7.02 Preservation of Information; Communications to Holders..55
Section 7.03 Reports by Trustee......................................57
Section 7.04 Reports by the Company..................................57
ARTICLE 8 Consolidation, Merger, Lease, Sale or Transfer..............58
Section 8.01 When the Company May Merge, Etc.........................58
Section 8.02 Opinion of Counsel......................................58
Section 8.03 Successor Corporation Substituted.......................59
ARTICLE 9 Supplemental Indentures.....................................59
Section 9.01 Supplemental Indentures Without Consent of Holders......59
Section 9.02 Supplemental Indentures with Consent of Holders.........60
Section 9.03 Execution of Supplemental Indentures....................62
Section 9.04 Effect of Supplemental Indentures.......................62
Section 9.05 Conformity with Trust Indenture Act.....................62
Section 9.06 Reference in Securities to Supplemental Indentures......62
ARTICLE 10 Covenants...................................................63
Section 10.01 Payments of Securities..................................63
Section 10.02 Maintenance of Office or Agency.........................63
Section 10.03 Compliance Certificates.................................63
Section 10.04 Waiver of Stay, Extension or Usury Laws.................64
Section 10.05 Money for Securities Payments to Be Held in Trust.......64
Section 10.06 Maintenance of Existence................................65
Section 10.07 Waiver of Certain Covenants.............................65
ARTICLE 11 Redemption of Securities....................................66
Section 11.01 Applicability of Article................................66
Section 11.02 Election to Redeem; Notice to Trustee...................66
Section 11.03 Selection by Trustee of Securities to Be Redeemed.......66
Section 11.04 Notice of Redemption....................................67
Section 11.05 Deposit of Redemption Price.............................67
Section 11.06 Securities Payable on Redemption Date...................68
Section 11.07 Securities Redeemed in Part.............................68
ARTICLE 12 Sinking Funds...............................................68
Section 12.01 Applicability of Article................................68
Section 12.02 Satisfaction of Sinking Fund Payments with Securities...69
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TABLE OF CONTENTS
(Continued)
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Section 12.03 Redemption of Securities for Sinking Fund...............69
ARTICLE 13 Defeasance and Covenant Defeasance..........................69
Section 13.01 Applicability of Article; Company's Option
to Effect Defeasance or Covenant Defeasance.............69
Section 13.02 Defeasance and Discharge................................70
Section 13.03 Covenant Defeasance.....................................70
Section 13.04 Conditions to Defeasance or Covenant Defeasance.........70
Section 13.05 Deposited Money and Government Obligations
To Be Held in Trust.....................................72
Section 13.06 Reinstatement...........................................73
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INDENTURE, dated as of ________________, 200_, between Triarc
Companies, Inc., a Delaware corporation (herein called the "COMPANY"), and U.S.
Bank National Association, as Trustee (herein called the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior
debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES"), to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and ratable benefit of the Holders of the Securities, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 DEFINITIONS. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article
have the meanings assigned to them in this Article and include the plural as
well as the singular;
(2) all other terms used herein which
are defined in the Trust Indenture Act, either directly or by reference therein,
or defined by Commission rule and not otherwise defined herein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise
defined herein have the meanings assigned to them in accordance with GAAP;
(4) the word "INCLUDING" (and with
correlative meaning "INCLUDE") means including, without limiting the generality
of, any description preceding such term; and
(5) the words "HEREIN," "HEREOF" and
"HEREUNDER" and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision.
"ACT," when used with respect to any Holder, has the meaning specified
in Section 1.04.
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"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "CONTROL",
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise. For purposes of this definition, the terms
"controlling," "controlled by" and "under common control with" shall have
correlative meanings.
"APPLICABLE CURRENCY" means, with respect to a Security, the currency
or currency unit in which such Security is payable.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"BOARD OF DIRECTORS" means (a) with respect to any corporation, the
board of directors of such corporation, (b) with respect to any partnership, the
general partner of such partnership, (c) with respect to any limited liability
company, the managing member or board of managers of such limited liability
company and (d) with respect to any other entity, the body having the power to
direct the policies of such entity; PROVIDED, HOWEVER, that when the context
refers to actions or resolutions of the Board of Directors, then the term "BOARD
OF DIRECTORS" shall also mean any duly authorized committee of the Board of
Directors authorized to act with respect to any particular matter to exercise
the power of the Board of Directors.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors of the Company and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"BUSINESS DAY," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities of
any series, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or obligated by law or regulation to close; PROVIDED, HOWEVER, that, if the
foreign currency or currency unit is euro, the day is also a day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET)
System is open.
"CAPITAL LEASE OBLIGATION" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be so required to be capitalized on the balance sheet in
accordance with GAAP.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations, warrants, rights, options or other equivalents
(however
3
designated) of capital stock or any other equity interest of such Person,
including, without limitation, with respect to a corporation, each class of
common stock and preferred stock; with respect to a partnership, partnership
interests (whether general or limited); with respect to a limited liability
company, membership interests; and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of the assets of, such Person.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation or other entity shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation or entity.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by the Designated Officers and delivered to
the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of this Indenture is located at 00
Xxxxxxxxxx Xxxxxx, Xx. Xxxx, XX 00000.
"COVENANT DEFEASANCE" has the meaning specified in Section 13.03.
"CURRENCY UNIT" or "CURRENCY UNITS" shall mean any composite currency.
"CUSTODIAN" means any receiver, custodian, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 3.07.
"DEFEASANCE" has the meaning specified in Section 13.02.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more global
Securities, the Person designated as Depositary by the Company pursuant to
Section 3.01. The Depository Trust Company shall be the initial Depositary,
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. If at
4
any time there is more than one such Person, "Depositary" shall mean the
Depositary with respect to the Securities of that series.
"DESIGNATED OFFICERS" means any two Officers of the Company, at least
one of whom must be its Chief Executive Officer, its President, any Vice
President, its Chief Financial Officer or its Chief Accounting Officer.
"DOLLARS" and "$" means lawful money of the United States of America.
"EVENT OF DEFAULT" has the meaning specified in Section 5.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations promulgated thereunder.
"GAAP" means such accounting principles as are generally accepted in
the United States of America which are in effect on the date hereof.
"HOLDER" or "SECURITYHOLDER" means a Person in whose name a Security is
registered in the Security Register.
"INDENTURE" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated hereunder.
"INTEREST," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"INTEREST PAYMENT DATE," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"JUDGMENT CURRENCY" has the meaning specified in Section 1.15.
"MATURITY," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"NEW YORK BANKING DAY" has the meaning specified in Section 1.15.
"OFFICER" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, any
Vice President, the Chief Financial Officer, the Chief Accounting Officer, the
Treasurer, any Assistant Treasurer, the Controller, any Assistant Controller,
the Secretary or any Assistant Secretary of such Person.
5
"OFFICERS' CERTIFICATE" means a certificate signed and delivered to the
Trustee by the Designated Officers of the Company.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be an
employee of or counsel for the Company, and who shall be reasonably acceptable
to the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides
for an amount (excluding any amounts attributable to accrued but unpaid interest
thereon) less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"OUTSTANDING," when used with respect to Securities or Securities of
any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(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 and in the Applicable Currency 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;
PROVIDED 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 reasonably satisfactory to the Trustee has been made;
(iii) Securities which have been paid as provided herein 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 reasonably
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company; and
(iv) Securities which have been defeased pursuant to
Section 13.02;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (a) the principal amount of any Original Issue Discount Security
that shall be deemed to be Outstanding for such purposes shall be that portion
of the principal amount thereof that could be declared to be due and payable
upon the occurrence of an Event of Default and the continuation thereof pursuant
to the terms of such Original Issue Discount Security as of the date of such
6
determination, (b) the principal amount of a Security denominated in one or more
foreign currencies or currency units shall be the dollar equivalent that could
be obtained for such principal amount on the basis of a spot rate of exchange
specified to the Trustee for such series in an Officers' Certificate for such
foreign currency or currency unit into dollars as of the date the taking of such
action by the Holders of the requisite percentage in principal amount of the
Securities is evidenced to the Trustee (or, in the case of an Original Issue
Discount Security, the dollar equivalent on such date of the amount determined
as provided in (a) above), and (c) Securities owned by the Company or any
Affiliate of the Company shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee actually knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any Affiliate of the Company.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of, premium, if any, interest or other amounts on any Securities on
behalf of the Company. The Company may act as Paying Agent with respect to any
Securities issued hereunder.
"PERSON" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization, other entity or government or any agency or
political subdivision thereof.
"PLACE OF PAYMENT," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest or other amounts on the Securities of that series are payable as
specified as contemplated by Section 3.01.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"REDEMPTION DATE," when used with respect to any Security of any series
to be redeemed, in whole or in part, means the date fixed for such redemption by
or pursuant to this Indenture.
"REDEMPTION PRICE," when used with respect to any Security of any
series to be redeemed, means the price at which it is to be redeemed pursuant to
this Indenture, payable in the Applicable Currency.
7
"REGISTERED SECURITY" means any Security issued hereunder and
registered in the Security Register.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 3.01.
"REQUIRED CURRENCY" has the meaning specified in Section 1.15.
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means any
officer of the Trustee assigned to administer corporate trust matters and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his or her knowledge of and familiarity
with the particular subject.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 3.05.
"SIGNIFICANT SUBSIDIARY" of a Person has the meaning ascribed to such
term in Rule 1.02(w) of Regulation S-X under the Securities Act of 1933, as
amended, as such Regulation is in effect on the date of this Indenture.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
"STATED MATURITY," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"SUBSIDIARY" means, with respect to any Person:
(1) any corporation, association or other business entity
of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof (or any equivalent thereof)
is at the time owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of that Person (or any combination
thereof);
(2) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of such Person
or (b) the only general partners of which are such Person or one or more
Subsidiaries of such Person (or any combination thereof); and
8
(3) any limited liability company (a) the sole member or
managing member of which is such Person or a Subsidiary of such Person or (b)
the only members or managing members of which are such Person or one or more
Subsidiaries of such Person (or any combination thereof).
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed;
PROVIDED, HOWEVER, that in the event that such Act is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"U.S. GOVERNMENT OBLIGATIONS" means securities which are (i) direct
obligations of the United States of America 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 of
America the timely payment of which is unconditionally guaranteed by the full
faith and credit of the United States of America which, in either case, are not
callable or redeemable at the option of the issuer thereof or otherwise subject
to prepayment, and shall also include a depository receipt issued by a New York
Clearing House 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 depository receipt, PROVIDED that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount held 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 depository
receipt.
"VICE PRESIDENT," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"VOTING STOCK" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
Section 1.02 COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel
9
stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03 FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer actually knows that the certificate or opinion
or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an Officer or Officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel actually knows that the certificate or
opinion or representations with respect to such matters are erroneous.
Any certificate, statement or opinion of an Officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate, report or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such Officer or counsel, as the
case may be, actually knows that the
10
certificate, report or opinion or representations with respect to the accounting
matters upon which his or her certificate, statement or opinion is based are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "ACT" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The record ownership of Registered Securities shall be proved
by the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so,
11
PROVIDED that the Company may not set a record date for, and the provisions of
this paragraph shall not apply with respect to, the giving or making of any
notice, declaration, request or direction referred to in the immediately
following paragraph. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
PROVIDED that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date.
(f) The Trustee shall set a record date, which shall not be more
than 15 days prior to the date of commencement of solicitation of such action
contemplated by this Section 1.04(f), for the purpose of determining the Holders
of Securities of any series entitled to join in the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration referred to in Section
5.02, (iii) any direction referred to in Section 5.12, (iv) any request to
institute proceedings referred to in Section 5.07(2) or (v) any waiver of past
defaults pursuant to Section 5.13, in each case with respect to Securities of
such series. If such a record date is fixed pursuant to this paragraph, the
relevant action may be taken or given before or after such record date, but only
the Holders of record at the close of business on such record date shall be
deemed to be holders of Securities of a series 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 Securities of such series shall be computed as of such
record date; PROVIDED that no such action by Holders on such record date shall
be deemed effective unless it shall become effective pursuant to the provisions
of this Indenture not later than six months after the record date. Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's reasonable expense,
shall cause notice of such record date and the proposed action by Holders to be
given to the Company in writing and to each Holder of Securities of the relevant
series in the manner set forth in Section 1.06.
Section 1.05 NOTICES, ETC., TO TRUSTEE AND THE COMPANY. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
12
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing and mailed first-class postage prepaid, to or with the Trustee at 00
Xxxxxxxxxx Xxxxxx, Xx. Xxxx, XX 00000, or if sent by facsimile transmission, to
a facsimile number provided by the Trustee, with a copy mailed, first-class
postage prepaid to the Trustee addressed to it as provided above; or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, addressed to
the Company at Triarc Companies, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: General Counsel, or at any other address previously furnished
in writing to the Trustee by the Company, or if sent by facsimile transmission,
to a facsimile number provided to the Trustee by the Company, with a copy
mailed, first-class postage prepaid, to the Company addressed to it as provided
above.
Section 1.06 NOTICE TO HOLDERS; WAIVER. Where this Indenture or
any Security provides for notice to Holders of any event, such notice shall be
deemed sufficiently given (unless otherwise herein or in such Security expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders 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 or the validity of the proceedings to which
such notice relates.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture or any Security provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
Section 1.07 CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included or deemed included in this Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall control. If
any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or
13
excluded, such provision of the Trust Indenture Act shall be deemed to apply to
this Indenture as so modified or shall be excluded, as the case may be.
Section 1.08 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 1.09 SUCCESSORS AND ASSIGNS. All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not.
Section 1.10 SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1.11 BENEFITS OF INDENTURE. Nothing in this Indenture or
in the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.12 GOVERNING LAW. This Indenture and the Securities
shall be governed by and construed in accordance with the laws of the State of
New York, without regard to its principles of conflicts of law.
Section 1.13 LEGAL HOLIDAYS. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
other than a provision in the Securities of any series which specifically states
that such provision shall apply in lieu of this Section) payment of interest or
principal (and premium and any other amounts, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day or on such other day as may be set out in the Officers' Certificate pursuant
to Section 3.01 or in any supplemental indenture with respect to the Securities
at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be, PROVIDED that no interest shall accrue
on the amount so payable for the period from and after such Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity,
as the case may be, if payment is made on such next succeeding Business Day or
other day set out in such Officers' Certificate or in any supplemental indenture
with respect to the Securities.
Section 1.14 NO RECOURSE AGAINST OTHERS. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder, by accepting a
14
Security, waives and releases all such liability. Such waivers and releases are
part of the consideration for the issuance of the Securities.
Section 1.15 JUDGMENT CURRENCY. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of, or premium, other amounts or interest, if
any, on the Securities of any series (the "REQUIRED CURRENCY") into a currency
in which a judgment will be rendered (the "JUDGMENT CURRENCY"), the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding that
on which a final unappealable judgment is given and (b) its obligations under
this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount of
the Required Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "NEW YORK BANKING DAY" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
Section 1.16 COUNTERPARTS. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
ARTICLE 2
SECURITY FORMS
Section 2.01 FORMS GENERALLY. The Securities of each series shall
be in substantially the form set forth in this Article, or in such other form as
shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the Officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the
15
delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 2.02 FORM OF FACE OF SECURITY.
TRIARC COMPANIES, INC.
...................
No. _______ [$]________
Triarc Companies, Inc., a corporation duly organized and existing under
the laws of Delaware (herein called the "COMPANY," which term includes any
successor entity under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________, or registered assigns, the
principal sum of _______________ [Dollars] on _______________ [IF THE SECURITY
IS TO BEAR INTEREST PRIOR TO MATURITY, INSERT-- and to pay interest thereon from
_______________ or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on _______________ and
_______________ in each year [if other than semi-annual payments, insert
frequency of payments and payment dates], commencing _____________________, at
[IF THE SECURITY IS TO BEAR INTEREST AT A FIXED RATE, INSERT-- the rate of
_____% per annum], [IF THE SECURITY IS TO BEAR INTEREST AT A VARIABLE OR
FLOATING RATE AND IF DETERMINED WITH REFERENCE TO AN INDEX, REFER TO DESCRIPTION
OF INDEX BELOW] until the principal hereof is paid or made available for payment
[IF APPLICABLE INSERT--, and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of _____% per annum on any overdue
principal, premium, other amounts and on any overdue installment of interest].
[IF APPLICABLE, INSERT--Interest shall be payable in cash commencing
___________.] [IF APPLICABLE, insert--Until __________, interest shall be
payable through the addition of such interest to the then outstanding principal
amount of this Security.] The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the __________ or __________ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any
16
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[IF THE SECURITIES ARE FLOATING OR ADJUSTABLE RATE SECURITIES WITH
RESPECT TO WHICH THE PRINCIPAL OF OR ANY PREMIUM, OTHER AMOUNTS OR INTEREST MAY
BE DETERMINED WITH REFERENCE TO AN INDEX, INSERT THE TEXT OF THE FLOATING OR
ADJUSTABLE RATE PROVISION.]
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY, INSERT--
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of _____% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of _____% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium and other amounts, if any) and
[IF APPLICABLE, INSERT--any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in New York, in
dollars [IF APPLICABLE, INSERT--; PROVIDED, HOWEVER, that at the option of the
Company, payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Notwithstanding the foregoing, a Holder of $1,000,000 or more in aggregate
principal amount of Securities of any series in definitive form, whether having
identical or different terms and provisions, having the same Interest Payment
Dates will, at the option of the Company, be entitled to receive interest
payments, other than at Maturity, by wire transfer of immediately available
funds if appropriate wire transfer instructions have been received in writing by
the Trustee for the Securities of such series at least 15 days prior to the
applicable Interest Payment Date. Any wire instructions received by the Trustee
for the Securities of such series shall remain in effect until revoked by the
Holder].
[IF APPLICABLE, INSERT -- So long as all of the Securities of this
series are represented by Securities in global form, the principal of, premium
and other amounts, if any, and interest, if any, on this global Security shall
be paid in same day funds to the Depositary, or to such name or entity as is
requested by an authorized representative of the Depositary. If at any time the
Securities of this series are no longer represented by global Securities and are
issued in definitive certificated form, then the principal of, premium and other
amounts, if any, and interest, if any, on each certificated Security at Maturity
shall be paid in same day funds to the Holder upon surrender of such
certificated Security at the Corporate Trust Office of the Trustee, or at such
other place or places as may be designated in or pursuant to the Indenture,
PROVIDED that such
17
certificated Security is surrendered to the Trustee, or at such other place or
places as may be designated in or pursuant to the Indenture, PROVIDED that such
certificated Security is surrendered to the Trustee, acting as Paying Agent, in
time for the Paying Agent to make such payments in such funds in accordance with
its normal procedures. Payments of interest with respect to such certificated
Securities other than at Maturity may, at the option of the Company, be made by
check mailed to the address of the Person entitled thereto as it appears on the
Security Register on the relevant Regular or Special Record Date or by wire
transfer in same day funds to such account as may have been appropriately
designated to the Paying Agent by such Person in writing not later than such
relevant Regular or Special Record Date.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed and delivered.
TRIARC COMPANIES, INC.
By: ______________________________
Section 2.03 FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "SECURITIES"), issued and to be issued in one or more
series under an Indenture, dated as of _______________, 200_ (herein called the
"INDENTURE"), between the Company and U.S. Bank National Association, as Trustee
(herein called the "TRUSTEE," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
$__________].
[IF APPLICABLE, INSERT-- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by first class
mail, [IF APPLICABLE, INSERT-- (1) on __________ in any year commencing with the
year __________ and ending with the year __________ through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at
18
any time [on or after __________, _____], as a whole or in part, at the election
of the Company, at the following Redemption Prices (expressed as percentages of
the principal amount):
If redeemed [on or before _______________, _____%, and if redeemed]
during the 12-month period beginning _______________ of the years indicated,
REDEMPTION
YEAR PRICE
------------- --------------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [IF APPLICABLE, INSERT-- (whether
through operation of the sinking fund or otherwise)] with accrued and unpaid
interest to the Redemption Date, but interest installments whose Interest
Payment Date is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Regular Record Dates or Special Record
Dates referred to on the face hereof, all as provided in the Indenture.]
[IF APPLICABLE, INSERT-- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by first class
mail, (1) on _______________ in any year commencing with the year __________ and
ending with the year __________ through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after __________], as a whole or in part, at
the election of the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below:
If redeemed during a 12-month period beginning _________________ of the
years indicated,
REDEMPTION PRICE REDEMPTION PRICE FOR
FOR REDEMPTION REDEMPTION OTHERWISE THAN
THROUGH OPERATION OF THE SINKING THROUGH OPERATION OF THE
FUND SINKING FUND YEAR
-------------------------------- ------------------------ ----------------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued and unpaid interest to the Redemption
Date, but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be
19
payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
__________, redeem any Securities of this series as contemplated by [clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than _____% per annum.]
[The sinking fund for this series provides for the redemption on
___________ in each year beginning with the year _____ and ending with the year
_____ of [not less than] $_______________ [("MANDATORY SINKING FUND") and not
more than $____________] aggregate principal amount of Securities of this
series.] [Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made--in
the inverse order in which they become due.]
[In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT--
If any Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT-- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal --INSERT FORMULA FOR DETERMINING THE
AMOUNT. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
[This Security is subject to defeasance and covenant defeasance as
described in the Indenture [IF APPLICABLE, INSERT -- and the supplemental
indenture].]
[This Security is subject to satisfaction and discharge as provided in
the Indenture [IF APPLICABLE, INSERT -- and the supplemental indenture].]
The Indenture may be modified by the Company and the Trustee with
respect to this Security without consent of any Holder with respect to certain
matters as described in the Indenture. In addition, the Indenture permits, with
certain exceptions as
20
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of a majority in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall bind such Holder and all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligations of the Company, which
are absolute and unconditional, to pay the principal of (and premium and other
amounts, if any) and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and premium
and other amounts, if any) and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
Stated Maturity and aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of [$1,000] and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
21
The Indenture imposes certain limitations on the ability of the Company
to, among other things, merge or consolidate with any other Person or sell,
assign, transfer or lease all or substantially all of its properties or assets
[IF OTHER COVENANTS ARE APPLICABLE PURSUANT TO THE PROVISIONS OF SECTION 3.01,
INSERT HERE]. All such covenants and limitations are subject to a number of
important qualifications and exceptions set forth in the Indenture or in a
supplemental indenture. The Company must report periodically to the Trustee on
compliance with the covenants in the Indenture.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under this
Security or the Indenture or for any claim based on, in respect of or by reason
of, such obligations or their creation. Each Holder, by accepting a Security,
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Security.
[IF APPLICABLE, INSERT-- Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures ("CUSIP"), the
Company has caused CUSIP numbers to be printed on the Securities of this series
as a convenience to the Holders of the Securities of this series. No
representation is made as to the correctness or accuracy of such numbers as
printed on the Securities of this series and reliance may be placed only on the
other identification numbers printed hereon.]
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
22
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
______________________________________________________
(INSERT ASSIGNEE'S SOCIAL SECURITY OR TAX I.D. NUMBER)
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
(PRINT OR TYPE ASSIGNEE'S NAME, ADDRESS AND ZIP CODE)
and irrevocably appoint ___________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Dated: __________ Your Signature:___________________________________________
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE
OTHER SIDE OF THIS SECURITY)
Signature Guaranty: ________________________________________________
[SIGNATURES MUST BE GUARANTEED BY AN "ELIGIBLE
GUARANTOR INSTITUTION" MEETING THE REQUIREMENTS OF
THE TRANSFER AGENT, WHICH REQUIREMENTS WILL INCLUDE
MEMBERSHIP OR PARTICIPATION IN STAMP OR SUCH OTHER
"SIGNATURE GUARANTEE PROGRAM" AS MAY BE DETERMINED BY
THE TRANSFER AGENT IN ADDITION TO, OR IN SUBSTITUTION
FOR, STAMP, ALL IN ACCORDANCE WITH THE EXCHANGE ACT.]
Social Security Number or
Taxpayer Identification Number: _______________________________________
23
Section 2.04 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication shall be in substantially the following
form:
Dated: _______________
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION
As Trustee
By_________________________________
Authorized Signatory
Section 2.05 SECURITIES IN GLOBAL FORM. If Securities of or within
a series are issuable in whole or in part in global form, then any such Security
of such series may provide that it shall represent the aggregate or a specified
amount of the Outstanding Securities of such series from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Securities
of such series represented thereby may from time to time be reduced or increased
to reflect exchanges. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of Outstanding Securities represented thereby shall be made in such
manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 3.03 or Section 3.04. Subject to the provisions of Section
3.03 and, if applicable, Section 3.04, the Trustee shall deliver and redeliver
any Security in permanent global form in the manner and upon instructions given
by the Person or Persons specified therein or in the applicable Company Order.
If a Company Order pursuant to Section 3.03 or 3.04 has been, or simultaneously
is, delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 1.02 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last paragraph of Section 3.03 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby.
Notwithstanding the provisions of Sections 2.01 and 3.07, unless
otherwise specified as contemplated by Section 3.01, payment of principal of and
premium and other amounts, if any, and interest on any Security in permanent
global form shall be made to the Person or Persons specified therein.
24
Section 2.06 FORM OF LEGEND FOR THE SECURITIES IN GLOBAL FORM. Any
Security in global form authenticated and delivered hereunder shall bear a
legend in substantially the following form, or in such other form as may be
necessary or appropriate to reflect the arrangements with or to comply with the
requirements of any Depositary:
"THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR SECURITIES IN CERTIFICATED FORM IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, THIS
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."
ARTICLE 3
THE SECURITIES
Section 3.01 AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
Prior to the issuance of Securities of any series, there shall be established in
or pursuant to (i) a Board Resolution of the Company, (ii) actions taken
pursuant to a Board Resolution of the Company and (subject to Section 3.03) set
forth, or determined in the manner provided, in an Officers' Certificate, or
(iii) one or more indentures supplemental hereto:
(1) the title of the Securities of the series
(which shall distinguish the Securities of the series from all other
Securities);
(2) the purchase price, denomination and any
limit upon the aggregate principal amount of the Securities of the series which
may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Sections 3.04,
3.05, 3.06, 9.06 or 11.07);
25
(3) the date or dates on which the principal of
and premium and other amounts, if any, on the Securities of the series are
payable or the method of determination thereof;
(4) the rate or rates at which the Securities of
the series shall bear interest, if any, or the method of calculating such rate
or rates of interest, the method of payment of interest (in particular, whether
the interest will be paid in kind or otherwise), 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 the Regular Record Date, if any, for the interest payable on any
Interest Payment Date;
(5) the place or places where, subject to the
provisions of Section 10.02, the principal of, premium and other amounts, if
any, and interest, if any, on Securities of the series shall be payable;
(6) the place or places where the Securities may
be exchanged or transferred and notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served;
(7) the period or periods within which, the
price or prices at which, the currency or currencies (including currency unit or
units) in which, and the other terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the Company, and,
if other than as provided in Section 11.03, the manner in which the particular
Securities of such series (if less than all Securities of such series are to be
redeemed) are to be selected for redemption;
(8) the obligation, if any, of the Company to
redeem, repay or purchase Securities of the series in whole or in part pursuant
to any sinking fund or analogous provisions or upon the happening of a specified
event, passage of time, or at the option of a Holder thereof and the period or
periods within which, the price or prices at which, and the other terms and
conditions upon which Securities of the series shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and
any integral multiple thereof, the denominations in which Securities of the
series shall be issuable;
(10) if other than U.S. dollars, the currency or
currencies (including currency unit or units) in which payments of principal of,
premium and other amounts, if any, and interest on the Securities of the series
shall or may by payable, or in which the Securities of the series shall be
denominated, and the particular provisions applicable thereto;
(11) if the payments of principal of, premium and
other amounts, if any, or interest on the Securities of the series are to be
made, at the election of the Company or a Holder, in a currency or currencies
(including currency unit or units) other than that in which such Securities are
denominated or designated to be
26
payable, the currency or currencies (including currency unit or units) in which
such payments are to be made, the terms and conditions of such payments and the
manner in which the exchange rate with respect to such payments shall be
determined, and the particular provisions applicable thereto;
(12) if the amount of payments of principal of,
premium and other amounts, if any, and interest on the Securities of the series
shall be determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on a currency or
currencies (including currency unit or units) other than that in which the
Securities of the series are denominated or designated to be payable), the
index, formula or other method by which such amounts shall be determined;
(13) if other than the principal amount thereof,
the portion of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.02 or the method by which such portion shall be determined;
(14) any modifications of or additions to the
Events of Default or the covenants of the Company set forth herein with respect
to Securities of the series; and whether and the conditions under which the
Holders of the Securities of the series may waive any such Event of Default or
compliance with any such covenant relating to the Securities of such series;
(15) if either or both of Section 13.02 and
Section 13.03 shall be inapplicable, in whole or in part, to the Securities of
the series (PROVIDED that if no such inapplicability shall be specified, then
both Section 13.02 and Section 13.03 shall be applicable to the Securities of
the series); and any modification to either such section as it relates to such
series of Securities;
(16) if other than the Trustee, the identity of
the Registrar and any Paying Agent;
(17) if the Securities of the series shall be
issued in whole or in part in global form, (i) the Depositary for such global
Securities, (ii) the form of any legend in addition to or in lieu of that in
Section 2.06 which shall be borne by such global Security, (iii) whether
beneficial owners of interests in any Securities of the series in global form
may exchange such interests for certificated Securities of such series and of
like tenor of any authorized form and denomination, and (iv) if other than as
provided in Section 3.05, the circumstances under which any such exchange may
occur;
(18) if the Holders of the Securities of the
series may convert or exchange the Securities of the series into or for
securities of the Company or of other entities or other property (or the cash
value thereof), the specific terms of and period during which such conversion or
exchange may be made;
27
(19) if the Securities of the series shall have
the benefits of any guarantee, and, if so, the identity of any guarantor and the
terms and provisions applicable to any such guarantee;
(20) if the Securities of the series shall be
secured;
(21) any provisions for the satisfaction and
discharge of the Securities of the series, including provisions in addition to
or modifying the provisions of Article 4 as they pertain to Securities of the
series;
(22) if the Securities of that series do not bear
interest, the applicable dates for purposes of Section 7.01;
(23) any agents for the series, including
trustees, depositories, authenticating, conversion, calculation or paying
agents, transfer agents or registrars; and
(24) any other terms of the series, including any
terms which may be required by or advisable under the laws of the United States
of America or regulations thereunder or advisable (as determined by the Company)
in connection with the marketing of Securities of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided (i) by a Board
Resolution, (ii) by action taken pursuant to a Board Resolution and (subject to
Section 3.03) set forth, or determined in the manner provided, in an Officers'
Certificate, or (iii) in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication and
delivery thereof. Prior to the delivery of a Security of any series in any such
form to the Trustee for the Securities of such series for authentication, the
Company shall deliver to such Trustee an Officers' Certificate dated the date
such Certificate is delivered to such Trustee stating that all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of Securities in such forms have been complied with.
Section 3.02 DENOMINATIONS. The Securities of each series shall be
issuable in registered form without coupons in such denominations as shall be
specified as contemplated by Section 3.01. In the absence of any such provisions
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
28
Section 3.03 EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities shall be executed on behalf of the Company by its Designated
Officers. The signature of any of these Designated Officers on the Securities
may be manual or facsimile. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and make such Securities available for
delivery. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 3.01, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Sections 315(a)
through (d) of the Trust Indenture Act) shall be fully protected in relying
upon, an Opinion of Counsel stating (subject to customary assumptions,
conditions and exceptions):
(a) if the terms of such Securities have been established by or
pursuant to a Board Resolution as permitted by Section 3.01, that such terms
have been established in conformity with the provisions of this Indenture; and
(b) 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, except
to the extent enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other similar
laws affecting the enforcement of creditors' rights generally and by the effect
of general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
If such terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee, or in the written opinion of
counsel to the Trustee (which counsel may be an employee of the Trustee) such
authentication may not lawfully be made or would involve the Trustee in personal
liability.
29
Notwithstanding the provisions of Section 3.01 and of the immediately
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Board Resolution
and the Officers' Certificate otherwise required pursuant to Section 3.01 or the
Company Order and Opinion of Counsel otherwise required pursuant to the second
preceding paragraph at or prior to the time of authentication of each Security
of such series if such documents are delivered at or prior to the authentication
upon original issuance of the first Security of such series to be issued.
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,
in accordance with this Section and the Company Order with respect to the
authentication and delivery of such series, authenticate and deliver one or more
Securities of such series in global form that (i) shall be in an aggregate
amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Security or Securities in global form,
(ii) shall be registered in the name of the Depositary for such Security or
Securities in global form or its nominee, and (iii) shall be made available for
delivery by the Trustee to such Depositary or pursuant to such Depositary's
instruction.
If all the Securities of any one series are not to be issued at one
time and if a Board Resolution relating to such Securities shall so permit, the
Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Securities, including, without limitation, procedures with
respect to interest rate, Stated Maturity, date of issuance and date from which
interest, if any, shall accrue.
Unless otherwise provided for in the form of Security, each Security
shall be dated the date of its authentication.
No Security shall be entitled to any benefits under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or an Authenticating Agent by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.09 together with a written statement (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
In case any Securities shall have been authenticated, but not
delivered, by the Trustee or the Authenticating Agent for such series then in
office, any successor by
30
merger, conversion or consolidation to such Trustee, or any successor
Authenticating Agent, as the case may be, may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee or successor Authenticating Agent had itself authenticated
such Securities.
Each Depositary designated pursuant to Section 3.01 for a Security in
global form must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Exchange Act and
any other applicable statute or regulation.
Section 3.04 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Company may execute, and upon a Company
Order the Trustee shall authenticate and make available for delivery, temporary
Securities of such series which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination, with like
terms and conditions as the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as evidenced
by their execution of such Securities.
In the case of Securities of any series, such temporary Securities may
be in global form, representing all or a portion of the Outstanding Securities
of such series.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions thereof), if temporary Securities
of any series are issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
terms and conditions. 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.
Section 3.05 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee
or in any office or agency to be maintained by the Company in accordance with
Section 10.02 in a Place of Payment a register (the register 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 "SECURITY REGISTER") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of registration of
transfers of Securities. The Trustee is hereby appointed "SECURITY REGISTRAR"
for the purpose of registering Securities and transfers of Securities as herein
provided.
31
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and Stated Maturity and with like terms
and conditions.
At the option of the Holder, Securities of any series (except a
Security in global form) may be exchanged for other Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
and Stated Maturity and with like terms and conditions, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
Each Security issued in global form authenticated under this Indenture
shall be registered in the name of the Depositary designated for such series or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Security issued in global form shall
constitute a single Security for all purposes of this Indenture.
Notwithstanding any other provision of this Section or Section 3.04,
unless and until it is exchanged in whole or in part for Securities in
certificated form in the circumstances described below, a Security in global
form representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for 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 defaults in the performance of its duties as
Depositary if at any time the Depositary for the Securities of such series shall
no longer be eligible to perform such duties, the Company shall appoint a
successor Depositary with respect to the Securities of such series. If (i) a
successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, (ii) the Company delivers to the Trustee for the
Securities of such series in registered form a Company Order stating that the
Securities of such series shall be exchangeable, or (iii) an Event of Default
under Section 5.01 hereof has occurred and is continuing with respect to the
Securities of such series, then the Company's selection pursuant to Section
3.01(17) shall no longer be effective with respect to the Securities of such
series, and the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of certificated Securities of
such series of like terms and conditions, shall authenticate and deliver
Securities of such series of like terms and conditions in certificated form, in
authorized denominations and in an
32
aggregate principal amount equal to the principal amount of the Security or
Securities of such series of like terms and conditions in global form in
exchange for such Security or Securities in global form.
The Company may at any time in its sole discretion determine that
Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like terms and conditions,
shall authenticate and deliver, Securities of such series of like terms and
conditions in certificated form, in authorized denominations and in an aggregate
principal amount equal to the principal amount of the Security or Securities of
such series of like terms and conditions in global form in exchange for such
Security or Securities in global form.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series may surrender a Security in
global form of such series in exchange in whole or in part for Securities of
such series in certificated form 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,
(i) to each Person specified by such Depositary a new
certified Security or Securities of the same series of like terms and
conditions, 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 Security in global form; and
(ii) to such Depositary a new Security in global form of
like terms and conditions in a denomination equal to the difference, if any,
between the principal amount of the surrendered Security in global form and the
aggregate principal amount of certificated Securities delivered to Holders
thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be canceled by the
Trustee. Securities issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and
33
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or
exchanged, no service charge shall be made for any registration of transfer or
exchange of Securities, but the Company or the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any
transfer.
In the event of any redemption of any series, the Company shall not be
required to (i) issue, register the transfer of or exchange the Securities of
any series during a period beginning 15 days before the mailing of a notice of
redemption of Securities of that series to be redeemed or, with respect to which
a Holder has exercised an option to require repurchase of the Security prior to
the Stated Maturity thereof, and ending on the date of the mailing; or (ii)
register the transfer of or exchange any Security, or portion thereof, called
for redemption or, with respect to which a Holder has exercised an option to
require repurchase of the Security, prior to the Stated Maturity thereof, except
the unredeemed portion or portion not being repurchased of any Security being
redeemed or repurchased in part.
The foregoing provisions relating to registration, transfer and
exchange may be modified, supplemented or superseded with respect to any series
of Securities by a Board Resolution or in one or more indentures supplemental
hereto.
Section 3.06 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If
(i) any mutilated Security is surrendered to the Trustee for such Security or
the Company and the Trustee for a Security receives evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) there is
delivered to the Company and such Trustee such security or indemnity as may be
required by them to hold each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or such Trustee that such Security
has been acquired by a BONA FIDE purchaser, the Company shall execute and upon
its request such Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for such mutilated Security, a
new Security of the same series and in a like principal amount and of a like
Stated Maturity and with like terms and conditions, and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
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Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security 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 duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 3.07 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "DEFAULTED INTEREST") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Security of such series and the date of the proposed payment (which shall
be not less than 25 days after the receipt by the Trustee of such notice, unless
such Trustee shall consent to an earlier date), and at the same time the Company
shall deposit with the Trustee an amount of money in Applicable Currency equal
to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements reasonably 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 provided in this Clause. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the reasonable
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special
35
Record Date therefor to be mailed, first-class postage prepaid, to each Holder
of Securities of such series at such Holder's address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause (2), such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 3.08 PERSONS DEEMED OWNERS. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of, premium and other amounts, if any, and (subject to Sections 3.05
and 3.07) interest on such Security and for all other purposes whatsoever,
whether or not such 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.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interest of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Company or the Trustee or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any Depositary (or its nominee), as a Holder, with respect to such
Security in global form or impair, as between such Depositary and owners of
beneficial interests in such Security in global form, the operation of customary
practices governing the exercise of the right of such Depositary (or its
nominee) as holder of such Security in global form.
Section 3.09 CANCELLATION. All Securities surrendered for payment,
redemption, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to
36
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities shall be held by the Trustee and may
be destroyed (and, if so destroyed, certification of their destruction shall be
delivered to the Company, unless, by a Company Order, the Company shall direct
that canceled Securities be returned to it).
Section 3.10 COMPUTATION OF INTEREST. Except as otherwise
specified as contemplated by 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 CUSIP NUMBER. The Company in issuing Securities of
any series may use a "CUSIP" number, and if so, the Trustee may use the CUSIP
number in notices of redemption or exchange as a convenience to Holders of such
series; PROVIDED, that any such notice may state that no representation is made
as to the correctness or accuracy of the CUSIP number printed on the notice or
on the Securities of such series, and that reliance may be placed only on the
other identification numbers printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee of any change in the CUSIP number of any series
of Securities.
Section 3.12 WIRE TRANSFERS. Notwithstanding any other provision
to the contrary in this Indenture, the Company may make any payment of moneys
required to be deposited with the Trustee on account of principal of, or premium
and other amounts, if any, or interest on the Securities (whether pursuant to
optional or mandatory redemption payments, interest payments or otherwise) by
wire transfer of immediately available funds to an account designated by the
Trustee on or before the date and time such moneys are to be paid to the Holders
of the Securities in accordance with the terms hereof.
ARTICLE 4
SATISFACTION AND DISCHARGE
Section 4.01 SATISFACTION AND DISCHARGE OF INDENTURE. (a) This
Indenture shall cease to be of further effect with respect to a series of
Securities, and the Trustee, upon a Company Request and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either (a) all Securities of such
series theretofore authenticated and delivered (other than (i) Securities which
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.05) have been delivered to the
37
Trustee for cancellation; or (b) all such Securities not theretofore delivered
to the Trustee for cancellation (i) have become due and payable, or (ii) will
become due and payable at their Stated Maturity within one year, or (iii) have
been called for redemption within one year under arrangements reasonably
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the reasonable expense, of the Company, and the
Company, in the case of (b)(i), (ii) or (iii) above, has deposited with the
Trustee as trust funds in trust for the purpose cash in the Applicable Currency
or, in the case of a series of Securities payable in dollars, U.S. Government
Obligations in an amount certified to be sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal, premium and other amounts, if any, and interest
to the date of such deposit (in the case of Securities which have become due and
payable) or the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to
be paid all other sums payable hereunder by the Company and has delivered
irrevocable instructions to the Trustee to apply the deposited amounts to the
payment of such Securities at Stated Maturity or redemption, as applicable;
(3) no Default or Event of Default with
respect to this Indenture or the Securities shall have occurred on the date of
deposit and such deposit will not result in a breach or violation of, or
constitute a default under, any other instruments to which the Company is a
party or to which it is bound; and
(4) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for herein relating to the satisfaction and
discharge of this Indenture with respect to such Securities have been complied
with.
(b) Notwithstanding the satisfaction and discharge of
this Indenture with respect to a series of Securities:
(i) Until no notes of such series of Securities
are outstanding, (1) the obligations of the Company to the Trustee under Section
6.07, (2) the obligations of the Company to any Authenticating Agent under
Section 6.14, (3) if money shall have been deposited with the Trustee pursuant
to clause (a)(1)(b) of this Section, the obligations of the Trustee and any
Paying Agent under Section 4.02 and the last paragraph of Section 10.05 and (4)
the obligations of the Company under this Article 4, Sections 3.03, 3.05, 3.06,
3.07, 7.01, 7.02, 10.01, 10.02 and the last paragraph of Section 10.05 shall
survive, in each case, with respect to such series of Securities.
(ii) After no notes of such series of Securities
are outstanding, (1) the obligations of the Company to the Trustee under Section
6.07 and (2) the obligations of the Company under this Article 4 shall survive.
Section 4.02 APPLICATION OF TRUST MONEY. Subject to the provisions
of the last paragraph of Section 10.05, all money deposited with the Trustee
pursuant to
38
Section 4.01 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium and other amounts, if any) and interest for whose payment
such money has been deposited with or received by the Trustee, but such money
need not be segregated from other funds except to the extent required by law.
Section 4.03 REINSTATEMENT. If the Trustee or Paying Agent is
unable to apply any cash in accordance with this Article 4 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Article 4 until such time as the Trustee or Paying Agent is permitted to apply
all such cash in accordance with Article 4; PROVIDED, HOWEVER, that if the
Company has made any payment of interest on, premium and other amounts, if any,
principal or other amounts, if any, of any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held by
the Trustee or Paying Agent.
Section 4.04 APPLICATION TO A SPECIFIC SERIES OF SECURITIES. The
Company may elect to satisfy and discharge its obligations with respect to a
specific series of Securities under this Indenture by complying with the terms
of Article 4. If the Company makes such election, (a) the terms of Sections
4.01, 4.02 and 4.03 shall apply only to the specific series of Securities and
the terms of this Indenture as it relates to such series of Securities and (b)
the other Securities issued hereunder and this Indenture as it relates to such
other Securities shall remain in full force and effect.
ARTICLE 5
REMEDIES
Section 5.01 EVENTS OF DEFAULT. Except as otherwise specified as
contemplated by Section 3.01 for Securities of a series, "EVENT OF DEFAULT,"
wherever used herein with respect to Securities of any series, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or to be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) the Company defaults in the payment
of interest or other amounts due from time to time on any Security of that
series when such interest or other amount becomes due and payable and the
default continues for a period of 30 days; or
(2) the Company defaults in the payment
of the principal of, or premium, if any, on any Security of
39
that series when the same becomes due and payable at Maturity or on redemption;
or
(3) the Company fails to deposit any
sinking fund payment, for five days after it becomes due by the terms of a
Security of that series; or
(4) the Company fails to observe or
perform in any material respect any of its other covenants, agreements or
warranties in the Securities of that series or this Indenture (other than a
covenant, agreement or warranty a default in whose performance or whose breach
is elsewhere in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of a series of Securities
other than that series), and the failure to observe or perform continues for the
period and after the notice specified in the last paragraph of this Section; or
(5) the Company or any of its
Significant Subsidiaries (or any group of the Company's Subsidiaries that, taken
together, would constitute a Significant Subsidiary of the Company) pursuant to
or within the meaning of any Bankruptcy Law (a) commences a voluntary case or
proceeding under any Bankruptcy Law with respect to itself or themselves, (b)
consents to the entry of a judgment, decree or order for relief against it or
themselves in an involuntary case or proceeding under any Bankruptcy Law, (c)
consents to or acquiesces in the institution of bankruptcy or insolvency
proceedings against it or them, (d) applies for, consents to or acquiesces in
the appointment of or taking possession by a Custodian of it or any of its
Significant Subsidiaries or any of the Company's Subsidiaries that would, if
taken together, constitute a Significant Subsidiary of the Company or for all or
substantially all of the property of the Company, any of its Significant
Subsidiaries or any of the Company's Subsidiaries that would, if taken together,
constitute a Significant Subsidiary of the Company, (e) makes a general
assignment for the benefit of its or their creditors, (f) admits in writing to
an inability to pay its debts as they become due or (g) takes any corporate
action in furtherance of or to facilitate, conditionally or otherwise, any of
the foregoing; or
(6) (i) a court of competent
jurisdiction enters a judgment, decree or order for relief in an involuntary
case or proceeding under any Bankruptcy Law which shall (a) approve as properly
filed a petition seeking reorganization, arrangement, adjustment or composition
in respect of the Company or any of its Significant Subsidiaries or any of the
Company's Subsidiaries that would, if taken together, constitute a Significant
Subsidiary of the Company, (b) appoint a Custodian of the Company or any of its
Significant Subsidiaries or any of the Company's Subsidiaries that would, if
taken together, constitute a Significant Subsidiary of the Company or for all or
substantially all of the property of the Company, any of its Significant
Subsidiaries or any of the Company's Subsidiaries that would, if taken together,
constitute a Significant Subsidiary of the Company or (c) order the winding-up
or liquidation of affairs of the Company or any of its Significant Subsidiaries
or any of the Company's Subsidiaries that would, if taken together, constitute a
Significant Subsidiary of the Company, and such judgment, decree or order shall
remain unstayed
40
and in effect for a period of 90 consecutive days; or (ii) any bankruptcy or
insolvency petition or application is filed, or any bankruptcy or insolvency
proceeding is commenced, against the Company or any of its Significant
Subsidiaries or any of the Company's Subsidiaries that would, if taken together,
constitute a Significant Subsidiary of the Company and such petition,
application or proceeding is not dismissed within 90 days; or (iii) a warrant of
attachment is issued against any material portion of the property of the Company
or any of its Significant Subsidiaries or any of the Company's Subsidiaries that
would, if taken together, constitute a Significant Subsidiary of the Company
which is not released within 90 days of service; or (iv) a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that is for
relief in an involuntary case against the Company, a Significant Subsidiary of
the Company or any group of the Company's Subsidiaries that, taken together,
would constitute a Significant Subsidiary of the Company; or
(7) any other Event of Default provided
in any indentures supplemental to this Indenture with respect to Securities of
that series.
A Default under clause (4) above is not an Event of Default until the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series notify the Company of the Default and the
Company does not cure the Default within 60 days after receipt of the notice.
The notice must specify the Default, demand that it be remedied and state that
the notice is a "NOTICE OF DEFAULT." When a Default under clause (4) above is
cured within such 60-day period, it ceases to be a Default.
No Event of Default with respect to Securities of a series shall
constitute an Event of Default with respect to any other series unless expressly
provided for in a Board Resolution, Officers' Certificate or supplemental
indenture with respect to such series.
Section 5.02 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series (other than an
Event of Default specified in clause (5) or (6) of Section 5.01) occurs and is
continuing, the Trustee by notice in writing to the Company, or the Holders of
at least 25% in aggregate principal amount of the Securities of that series then
Outstanding by notice in writing to the Company and the Trustee, may declare the
unpaid principal of and interest accrued thereon to the date of acceleration
and, premium and other amounts, if any, thereon (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) on all the Securities of
that series then Outstanding to be due and payable immediately and, upon any
such declaration, all the Securities of that series then Outstanding (or
specified principal amount) shall become and be immediately due and payable.
If an Event of Default specified in clause (5) or (6) of Section 5.01
occurs, all unpaid principal of, interest, premium and other amounts, if any,
accrued on all the Securities of that series then Outstanding shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder of any Security of that series.
41
Upon payment of all such principal and interest, all of the Company's
obligations under the Securities of that series shall terminate and upon payment
of the Securities of all series this Indenture shall terminate in either case,
except those obligations under Section 6.07.
At any time after a declaration of acceleration of Maturity with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter provided in this Article, the Holders of a majority in principal
amount of the Outstanding Securities of that series by notice to the Trustee may
rescind an acceleration and its consequences if (i) all existing Events of
Default with respect to Securities of that series, other than the nonpayment of
the principal of and interest on the Securities of that series that has become
due solely by such declaration of acceleration, have been cured or waived as
provided herein; provided that no such rescission shall affect any subsequent
Default or Event of Default or impair any right consequent thereon, (ii) the
Company has paid or deposited with the Trustee a sum sufficient to pay in
Applicable Currency: (A) all overdue interest on all Securities of that series,
(B) to the extent payment thereof is lawful, the principal of (and premium and
other amounts, if any, on) any Securities of that series which have become due
otherwise than by such declaration of acceleration and interest thereon from the
date such principal became due at a rate per annum equal to the rate borne by
the Securities of such series (or, in the case of Original Issue Discount
Securities, the Securities' yield to maturity) and (C) to the extent the payment
of such interest is lawful, interest at a rate per annum equal to the rate borne
by the Securities of such series (or, in the case of an Original Issue Discount
Security, the Securities' annual bond-equivalent yield to maturity) on overdue
installments of interest and overdue principal that has become due otherwise
than by such declaration of acceleration have been paid, (iii) the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction and (iv) all payments due to the Trustee and any predecessor
Trustee under Section 6.07 have been made.
Section 5.03 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE. The Company covenants that if:
(1) the Company defaults in the payment
of any interest or other amount due from time to time on any Security of any
series when such interest or other amount becomes due and payable and such
default continues for a period of 30 days, or
(2) the Company defaults in the payment
of the principal of, or premium, if any, on any Security of any series when the
same shall become due and payable at Maturity or upon redemption, or
(3) the Company defaults is made in the
payment of any sinking or analogous obligation when the same becomes due by the
terms of the Securities of any series, and any such default continues for any
period of grace provided with respect to the Securities of such series,
42
then the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium and other amounts, if any) and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium and other amounts, if any) and on
any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to secure any other proper remedy.
Section 5.04 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or the property of the Company or its
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole
amount of principal (and premium and other amounts, if any) and interest owing
and unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel) and of the
Holders allowed in such judicial proceedings, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute the same;
and
(iii) unless prohibited by law of applicable
regulations, to vote on behalf of the Holders of the Securities of such series
in any election of a trustee in bankruptcy or other person performing similar
functions; and any custodian, receiver,
43
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding, except as aforesaid,
for the election of a trustee in bankruptcy or other person performing similar
functions.
Section 5.05 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.06 APPLICATION OF MONEY COLLECTED. Any money collected
by the Trustee pursuant to this Article in respect of the Securities of any
series shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on account of
principal, premium or other amounts, if any, or interest, upon presentation of
the Securities in respect of which moneys have been collected and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.07
applicable to the Securities of such series;
SECOND: To the payment of the amounts then due and unpaid for principal
of, and premium and other amounts, if any, and interest on the Securities of
such series in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities of such series for principal, and
premium and other amounts, if any, and interest, respectively; and
THIRD: To the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.06. At least ten (10) days before such record
44
date, theTrustee shall mail to each Holder and the Company a notice that states
the record date, the payment date and the amount to be paid.
Section 5.07 LIMITATION ON SUITS. No Holder of any Security of any
series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(1) such Holder has previously given
written notice to the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of at least twenty-five
percent in principal amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders shall have
offered to the Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such
written request has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of Holders of Securities of
any series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other of such Holders, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all Holders of Securities of the affected series.
Section 5.08 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM, OTHER AMOUNTS AND INTEREST. Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of, premium, other
amounts, if any, and (subject to Section 3.07) interest on such Security on the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
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Section 5.09 RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding has been instituted.
Section 5.10 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.06, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11 DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12 CONTROL BY HOLDERS. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such series, PROVIDED that:
(1) such direction shall not be in
conflict with any rule of law or with this Indenture or any supplemental
indenture relating to such Securities;
(2) the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction; and
(3) subject to Section 6.01, the
Trustee need not take any action which might involve the Trustee in personal
liability or be unduly prejudicial to the Holders not joining therein.
Section 5.13 WAIVER OF PAST DEFAULTS. The Holders of not less than
a majority in principal amount of the Outstanding Securities of any series may
by written notice to the Trustee on behalf of the Holders of all the Securities
of such series waive
46
any Default or Event of Default with respect to such series and its
consequences, except a Default or Event of Default:
(1) in respect of the payment of the
principal of or premium, other amounts, if any, or interest on any Security of
such series, or
(2) in respect of a covenant or other
provision hereof which under Article Nine cannot be modified or amended without
the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such Default or Event of Default shall cease to
exist and shall be deemed to have been cured, for every purpose of this
Indenture and the Securities of such series; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
Section 5.14 UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Security by its acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than ten percent in principal amount
of the Outstanding Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of or premium or
other amounts, if any, or interest on any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE 6
THE TRUSTEE
Section 6.01 CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
(a) Except during the continuance of an Event of Default, the
Trustee's duties and responsibilities under this Indenture shall be governed by
Section 315(a) of the Trust Indenture Act.
(b) In case an Event of Default has occurred and is continuing,
and is known to the Trustee, the Trustee shall exercise 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 man would exercise or use under the
circumstances in the conduct of his own affairs.
47
(c) None of the provisions of Section 315(d) of the Trust
Indenture Act shall be excluded from this Indenture.
(d) Every provision of this Indenture which pertains to the
Trustee shall be subject to this Section 6.01.
Section 6.02 NOTICE OF DEFAULTS. Within 90 days after the
occurrence of any Default or Event of Default with respect to the Securities of
any series, the Trustee shall give to all Holders of Securities of such series,
as their names and addresses appear in the Security Register, notice of such
Default or Event of Default known to the Trustee, unless such Default or Event
of Default shall have been cured or waived; PROVIDED, HOWEVER, that, except in
the case of a Default or Event of Default in the payment of the principal of or
premium, other amounts, if any, or interest on any Security of such series, or
in the deposit of any sinking fund payment with respect to Securities of that
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 and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interest of the Holders of
Securities of such series.
Section 6.03 CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions
of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors of the Company may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee
48
satisfactory security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(f) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such Events
of Default which may have occurred, 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, approval or other paper or document, or the books and records of the
Company, unless requested in writing to do so by the Holders of a majority in
principal amount of the Outstanding Securities of any series; PROVIDED, HOWEVER,
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is not, in the opinion of the Trustee, reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding; the reasonable expense of every
such investigation shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it;
(i) except with respect to Section 10.01, the Trustee shall have
no duty to inquire as to the performance of the Company with respect to the
covenants contained in Article 10. In addition, the Trustee shall not be deemed
to have knowledge of an Event of Default except (i) any Default or Event of
Default occurring pursuant to Sections 10.01, 5.01(1) or 5.01(2) or (ii) any
Default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge; and
(j) delivery of reports, information and documents to the Trustee
under Section 7.04 is for informational purposes only and the Trustee's receipt
of the foregoing shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on a certificate from the Company's
principal executive officer, principal financial officer or principal accounting
officer).
Section 6.04 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee
49
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities, except that the Trustee represents that it is duly authorized
to execute and deliver this Indenture, authenticate the Securities and perform
its obligations hereunder, and that the statements made by it or to be made by
it in a Statement of Eligibility and Qualification on Form T-1 supplied to the
Company are true and accurate. Neither the Trustee nor any Authenticating Agent
shall be accountable for the use or application by the Company of Securities or
the proceeds thereof.
Section 6.05 MAY HOLD SECURITIES. The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.06 MONEY HELD IN TRUST. Money held by the Trustee in
trust hereunder (including amounts held by the Trustee as Paying Agent) 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 upon in writing with the Company.
Section 6.07 COMPENSATION AND REIMBURSEMENT. The Company agrees:
(1) to pay to the Trustee from time to
time reasonable compensation as negotiated between the Company and the Trustee
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly
provided herein, to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and
to hold it harmless against, any loss, liability, damage, claim or expense,
including taxes (other than taxes based upon or determined or measured by the
income of the Trustee), incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.01(5) or Section 5.01(6), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for
50
the services are intended to constitute expenses of administration under any
applicable Bankruptcy Law.
The provisions of this Section 6.07 shall survive this Indenture and
the resignation or removal of the Trustee.
Section 6.08 DISQUALIFICATION; CONFLICTING INTERESTS. The Trustee
shall be disqualified only where such disqualification is required by Section
310(b) of the Trust Indenture Act. Nothing shall prevent the Trustee from filing
with the Commission the application referred to in the second to last paragraph
of Section 310(b) of the Trust Indenture Act.
Section 6.09 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall
at all times be a Trustee hereunder which shall be eligible to act as Trustee
under Section 310(a)(1) of the Trust Indenture Act having a combined capital and
surplus (together with its parent) of at least $100,000,000 and subject to
supervision or examination by federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither of the Company nor any Person directly
or indirectly controlling, controlled by, or under common control with the
Company may serve as Trustee. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
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(d) If at any time:
(i) the Trustee shall fail to comply with Section 310(b)
of the Trust Indenture Act after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security of such series of
Securities for at least six months unless the Trustee's duty to resign is stayed
in accordance with the provisions of Section 310(b) of the Trust Indenture Act;
or
(ii) the Trustee shall cease to be eligible under Section
6.09 and shall fail to resign after written request therefor by the Company or
by any such Holder of a Security who has been a bona fide Holder of a Security
of such series of Securities for at least six months; or
(iii) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, (i) the Company by Board Resolutions may remove the
Trustee with respect to all Securities, or (ii) subject to Section 315(e) of the
Trust Indenture Act, any Holder who has been a bona fide Holder of a Security of
such series of Securities for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities and the appointment of
a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by Board
Resolutions, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, upon its acceptance of such
appointment in accordance with the applicable requirements of Section 6.11,
become the successor Trustee with respect to the Securities of such series and
to that extent supersede the successor Trustee appointed by the Company with
respect to such Securities. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by Section 6.11, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
52
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
Section 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of some (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
such series shall execute and deliver an indenture supplemental hereto wherein
each successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to,
and to vest in, each successor Trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder
53
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under the Trust Indenture Act and this Article 6.
Section 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, PROVIDED such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor (by merger,
conversion, consolidation or otherwise as permitted hereunder) to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
COMPANY. The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
Section 6.14 APPOINTMENT OF AUTHENTICATING AGENT. At any time when
any of the Securities remain Outstanding the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of, and subject to the direction of,
the Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.05, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus (together with its parent) of
54
not less than $100,000,000 and subject to supervision or examination by federal
or State authority. If such Authenticating Agent publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, PROVIDED such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the parties hereto or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation as negotiated between the Company and such
Authenticating Agent for its services under this Section.
If an appointment with respect to one or more series of Securities is
made pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
Form of Authenticating Agent's
Certificate of Authentication
Dated: ____________________
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This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
____________________________________
As Trustee
By ____________________________________
As Authenticating Agent
By ____________________________________
Authorized Signatory
Section 6.15 COMPLIANCE WITH TAX LAWS. The Trustee hereby agrees
to comply with all U.S. Federal income tax information reporting and withholding
requirements applicable to it with respect to payments of premium, other amounts
(if any) and interest on the Securities of any series, whether acting as
Trustee, Security Registrar, Paying Agent or otherwise with respect to the
Securities of any series.
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND THE COMPANY
Section 7.01 THE COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS. With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee therefor:
(a) semi-annually, not later than 15 days after the Regular Record
Date for each series of Securities, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities as
of such Regular Record Date (unless the Trustee has such information), or if
there is no Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
PROVIDED, HOWEVER, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
Section 7.02 PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list
56
furnished to the Trustee as provided in Section 7.01 and the names and addresses
of Holders received by the Trustee in its capacity as Security Registrar, if so
acting for the relevant series of Securities. The Trustee may destroy any list
furnished to it as provided in Section 7.01 upon receipt of a new list so
furnished.
(b) If three or more Holders of Securities of any particular
series (herein referred to as "APPLICANTS") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security of that series for a period of at least six months preceding the date
of such application, and such application states that the applicants desire to
communicate with other Holders of Securities of that series with respect to
their rights under this Indenture or under such Securities and is accompanied by
a copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five Business Days after the receipt
of such application, at its election, either:
(i) afford such applicants access to the
information preserved at the time by the Trustee in accordance with Section
7.02(a); or
(ii) inform such applicants as to the approximate
number of Holders of Securities of that series whose names and addresses appear
in the information preserved at the time by the Trustee in accordance with
Section 7.02(a), and as to the approximate cost of mailing to such Holders the
form of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Securities of that series whose name and address appears
in the information preserved at the time by the Trustee in accordance with
Section 7.02(a) a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of that series or
would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities of such series, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the
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Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders of the Securities of such series in accordance with Section 7.02(b),
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 7.02(b).
Section 7.03 REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the
year after the Securities of any series have been issued, the Trustee shall
transmit by mail to all Holders of Securities of each series as provided in
Section 313(c) of the Trust Indenture Act, a brief report dated as of May 15, if
required by and in compliance with Section 313(a) of the Trust Indenture Act.
The Trustee shall also comply with Section 313(b) of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders of Securities of a series, be filed by the Trustee with
each stock exchange or inter-dealer quotation system upon which any Securities
are listed, with the Commission and with the Company. The Company will notify
the Trustee when any Securities are listed on any stock exchange or any
inter-dealer quotation system.
Section 7.04 REPORTS BY THE COMPANY. The Company shall file with
the Trustee and transmit to holders of each series of Securities such
information, documents and other reports and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act, whether or not such Securities are governed by
such Act; PROVIDED that any such information, documents or reports required to
be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within fifteen (15) days after the same is so
required to be filed with the Commission (unless the Company files such
documents with the Commission via XXXXX, in which case the Company is not
required to transmit such information, documents or reports to the Trustee or
the holders of the Notes).
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ARTICLE 8
CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER
Section 8.01 WHEN THE COMPANY MAY MERGE, ETC. Except as may be
otherwise provided as contemplated by Section 3.01 relating to Securities of a
series, the Company shall not consolidate with, or merge with or into, any other
Person (whether or not the Company shall be the surviving corporation or
entity), or convey, transfer or lease all or substantially all of its properties
and assets as an entirety or substantially as an entirety to any Person or group
of affiliated Persons, in one transaction or a series of related transactions,
unless:
(1) either the Company shall be the
continuing Person or the Person (if other than the Company) formed by such
consolidation or with which or into which the Company is merged or the Person
(or group of affiliated Persons) to which all or substantially all the
properties and assets of the Company as an entirety or substantially as an
entirety are conveyed, transferred or leased shall be a corporation or other
entity (or group of affiliated corporations or entities) organized and existing
under the laws of the United States of America or any State thereof or the
District of Columbia and shall expressly assume, by operation of law or by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all the obligations of the Company under
the Securities and this Indenture; and
(2) immediately after giving effect to
such transaction or series of related transactions, no Event of Default, and no
Default, shall have occurred and be continuing.
Notwithstanding the foregoing, the Company may consolidate with, or
merge with or into, an Affiliate incorporated for the purpose of incorporating
the Company in another jurisdiction of the United States of America or any State
thereof or the District of Columbia without complying with the requirement that,
immediately after giving effect to the transaction or series of related
transactions, there is no Default and no Event of Default continuing.
Notwithstanding the foregoing, (a) the Company may convey, transfer or
lease all or substantially all of its properties and assets as an entirety to
any Subsidiary or Subsidiaries, in one transaction or a series of related
transactions, and (b) the transfer by the Company, in a single transaction or
series of transactions, of all or substantially all of its cash, cash
equivalents and marketable securities of non-affiliates for which the Company
receives fair market value, as determined by the Company's Board of Directors,
will not constitute a sale of all or substantially all of the Company's assets.
If the Company consolidates with or merges into any other corporation
or entity or conveys, transfers or leases all or substantially all of its
property and assets as described in the preceding paragraph, the successor
corporation or entity succeeds to and is substituted for the Company, and may
exercise its rights and powers under this Indenture, then thereafter, except in
the case of a lease, the Company will be relieved of all obligations and
covenants under this Indenture and all outstanding debt securities.
Section 8.02 OPINION OF COUNSEL. The Company shall deliver to the
Trustee prior to the proposed transaction(s) covered by Section 8.01 an
Officers' Certificate and an Opinion of Counsel stating that the transaction(s)
and such supplemental indenture comply with this Indenture and that all
conditions precedent to the consummation of the transaction(s) under this
Indenture have been met.
59
Section 8.03 SUCCESSOR CORPORATION SUBSTITUTED. Upon any
consolidation by the Company with or merger by the Company into any other
corporation or other entity or any conveyance, transfer or lease all or
substantially all of the property and assets of the Company as an entirety or
substantially as an entirety in accordance with Section 8.01, the successor
corporation or other entity formed by such consolidation or into which the
Company is merged or the successor corporation or entity or affiliated group of
corporations or entities 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
corporation or corporations or entity or entities had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor
corporation or corporations or entity or entities shall be relieved of all
obligations and covenants under this Indenture and the Securities and in the
event of such consolidation, merger, conveyance or transfer, except in the case
of a lease, any such predecessor corporation may be dissolved and liquidated.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without notice to or the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form reasonably
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of
another corporation to the Company and the assumption by any such successor of
the covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the
Company for the benefit of the Holders of all or any series of Securities (and
if such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of
Default with respect to all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the benefit
of such series); or
(4) to add or change any of the
provisions of this Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons; or
(5) to change or eliminate any of the
provisions of this Indenture, PROVIDED that any such change or elimination shall
become effective
60
only when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of
Securities of any series as permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the
acceptance of appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 6.11(b); or
(9) to cure any ambiguity, defect or
inconsistency or to correct or supplement any provision herein which may be
inconsistent with any other provision herein; or
(10) to make any change that does not
materially adversely affect the interests of the Holders of Securities of any
series then Outstanding; or
(11) to add guarantees with respect to
any or all of the Securities; or
(12) to provide for uncertificated
Securities in addition to or in place of certificated Securities (PROVIDED that
the uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Internal Revenue Code or in a manner such that the
uncertificated Securities are described in Section 163(f)(2)(B) of such Code);
or
(13) to modify, eliminate or add to the
provisions of this Indenture to such extent as shall be necessary to effect or
maintain the qualification of this Indenture under the Trust Indenture Act, or
under any similar federal statute hereafter enacted.
Upon request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in (and subject to the last sentence
of) Section 9.03, the Trustee shall join with the Company in the execution of
any supplemental indenture authorized or permitted by the terms of this
Indenture.
Section 9.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With
the written consent of the Holders of a majority in aggregate principal amount
of the Outstanding Securities of each series affected by such supplemental
indenture (with the Securities of each series voting as a class), by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee shall, subject to Section 9.03, enter
into an indenture or indentures supplemental
61
hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; PROVIDED, HOWEVER, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the
principal of, or premium, other amounts, if any, or any installment of principal
of or premium, other amounts, if any, or interest on, any Security, or reduce
the principal amount (or accreted value, as the case may be) thereof or the rate
of interest thereon or accretions or any premium or other amounts payable upon
the redemption, repurchase or repayment thereof, or change the manner in which
the amount of any of the foregoing is determined, or reduce the amount of the
principal (or accreted value, as the case may be) that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to Section
5.02, or change the Applicable Currency for, or impair the right to receive
payment of principal of a premium, interest or other amounts, if any, on any
Holder's Securities on or after their respective due dates or to institute suit
for the enforcement of any such payment, or change any obligation of the
Company to maintain an office or agency in the places and for the purposes set
forth in Section 10.01; or
(2) reduce the percentage in principal
amount of the Outstanding Securities of any series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of whose Holders
is required for any waiver of compliance with certain provisions of this
Indenture or Defaults or Events of Default hereunder and their consequences
provided for in this Indenture; or
(3) modify any of the provisions of
this Section, Section 5.13 or Section 10.07, 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, Section
5.13 and Section 10.07, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11(b) and 9.01(8); or
(4) modify any conversion ratio or
otherwise impair conversion rights with respect to such Outstanding Securities,
if any, except as expressly permitted by the terms of such Outstanding
Securities; or
(5) modify any redemption provisions
applicable to such Outstanding Securities; or
(6) directly or indirectly release any
of the collateral or securities interest or guarantee in respect of such
Outstanding Securities, except as expressly permitted by the terms of such
Outstanding Securities; or
(7) directly or indirectly release any
guarantee in respect of such Outstanding Securities, except as expressly
permitted by the terms of such Outstanding Securities; or
62
(8) change any obligations to pay
additional amounts provided in the terms of such Outstanding Securities.
A supplemental indenture which changes or eliminates any covenant or
other provisions of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 9.03 EXECUTION OF SUPPLEMENTAL INDENTURES. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article,
subject to the last sentence of this Section 9.03. In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 9.04 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
Section 9.05 CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 9.06 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
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ARTICLE 10
COVENANTS
Section 10.01 PAYMENTS OF SECURITIES. With respect to each series
of Securities, the Company will duly and punctually pay the principal of (and
premium or other amounts, if any) and interest on such Securities in accordance
with their terms and this Indenture, and will duly comply with all the other
terms, agreements and conditions contained in, or made in this Indenture for the
benefit of, the Securities of such series.
Section 10.02 MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain an office or agency in each Place of Payment where Securities may be
surrendered for registration of transfer or exchange or for presentation for
payment, where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in 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 address of the Trustee as set forth in Section 1.05 hereof.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Section 10.03 COMPLIANCE CERTIFICATES.
(a) The Company shall deliver to the Trustee within 120 days after
the end of each fiscal year of the Company (which fiscal year currently ends on
the Sunday closest to December 31), a brief certificate signed on behalf of the
Company by either the principal executive officer, principal financial officer
or principal account officer of the Company as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture.
For purposes of this paragraph, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this
Indenture. Such certificate need not comply with Section 1.02.
(b) The Company shall deliver to the Trustee forthwith upon
becoming aware of a Default or Event of Default, an Officers' Certificate
setting forth the details of such Default or Event of Default and the action
that
64
the Company proposes to take with respect thereto and the specific section or
sections of this Indenture in connection with which such Default or Event of
Default has occurred.
Section 10.04 WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim, and will actively
resist any and all efforts to be compelled to take the benefit or advantage of,
any stay or extension law or any usury law or other law, which would prohibit or
forgive the Company from paying all or any portion of the principal of and/or
interest on the Securities as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 10.05 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. If
the Company shall at any time act as its own Paying Agent with respect to any
series of Securities, it will, on or before each due date of the principal of
(and premium and other amounts, if any) or interest on any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum, in the Applicable Currency, sufficient to pay the principal (and
premium and other amounts, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
(and premium and other amounts, if any) or interest on any Securities of that
series, deposit with a Paying Agent a sum, in the Applicable Currency,
sufficient to pay the principal (and premium and other amounts, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium, other amounts, if any, or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure to so act.
The Company will cause each Paying Agent for any series of Securities
(other than the Trustee) to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the
payment of the principal of (and premium and other amounts, if any) or interest
on Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(2) give the Trustee notice of any
default by the Company in the making of any payment of principal (and premium
and other amounts, if any) or interest on the Securities of that series; and
65
(3) at any time during the continuance
of any such default, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium and
other amounts, if any) or interest on any Security of any series and remaining
unclaimed for one year after such principal (and premium and other amounts, if
any) or interest has become due and payable shall, subject to any applicable
escheat laws, be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee of such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in New York, New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 10.06 MAINTENANCE OF EXISTENCE. Except as provided with
respect to a series of Securities and as provided in Article 8, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence and its rights (charter and statutory),
licenses and franchises; PROVIDED, HOWEVER, that the Company shall not be
required to preserve any such right, license or franchise if the Board of
Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
Section 10.07 WAIVER OF CERTAIN COVENANTS. The Company may omit in
any particular instance to comply with any term, provision or condition set
forth in Article 8, Article 10 (other than Sections 10.01, 10.02 or 10.05) or
any covenant specified as contemplated under Section 3.01 with respect to the
Securities of any series if before the time for such compliance the Holders of
not less than a majority in principal amount of the Outstanding Securities of
such series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall
66
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.01 APPLICABILITY OF ARTICLE. Securities of any series
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 3.01 for Securities of any series) in accordance with this Article;
PROVIDED, HOWEVER, that if any provision of any such form of Security shall
conflict with any provision of this Article, the provision of such form of
Security shall govern.
Section 11.02 ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election
of the Company to redeem any Securities shall be evidenced by a Board
Resolution. In case of any redemption at the election of the Company of less
than all the Securities of any series, the Company shall, at least 35 and not
more than 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 11.03 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. If
less than all the Securities of any series are to be redeemed, the particular
Securities to be redeemed shall be selected prior to the giving of the
applicable notice of redemption to Holders by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, substantially
pro rata, by lot or by any other method as the Trustee considers fair and
appropriate and that complies with the requirements of the principal national
securities exchange, if any, on which such Securities are listed, and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series;
PROVIDED that in case the Securities of such series have different terms and
maturities, the Securities to be redeemed shall be selected by the Company and
the Company shall give notice thereof to the Trustee.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of the Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or is
to be redeemed.
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Section 11.04 NOTICE OF REDEMPTION. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding
Securities of any series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amounts) of the particular Securities
to be redeemed;
(4) that on the Redemption Date the
Redemption Price will become due and payable upon each such Security to be
redeemed and, if applicable, that interest or original issue discount thereon
will cease to accrue or accrete on and after said date;
(5) the place or places where such
Securities are to be surrendered for payment of the Redemption Price;
(6) that the redemption is for a
sinking fund, if such is the case; and
(7) the CUSIP number, if any, of the
Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 11.05 DEPOSIT OF REDEMPTION PRICE. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 10.05) an amount of money in the Applicable
Currency sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.
Unless any Security by its terms prohibits any sinking fund payment
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
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Section 11.06 SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the Applicable Currency, and from and after such date
(unless the Company shall default in the payment of the Redemption Price or
accrued interest) such Securities shall cease to bear interest. 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, together with
accrued interest to the Redemption Date; PROVIDED, HOWEVER, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
or Special Record Dates according to their terms and the provisions of Section
3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium and other amounts,
if any) shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
Section 11.07 SECURITIES REDEEMED IN PART. Any Security which is to
be redeemed only in part shall be surrendered at an office or agency of the
Company at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Security Registrar therefor 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 and Stated Maturity, of any authorized denomination as requested
by such Holder, and having the same terms and conditions and in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.01 APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series, except as otherwise specified as contemplated by Section 3.01 for
Securities of such series; PROVIDED, HOWEVER, that if any provision of any such
form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "MANDATORY SINKING
FUND PAYMENT," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "OPTIONAL
SINKING FUND PAYMENT." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.02.
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Each sinking fund payment shall be applied to the redemption of Securities of
any series as provided for by the terms of Securities of such series.
Section 12.02 SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES. The Company (1) may deliver Outstanding Securities of a series
(other than any Securities previously called for redemption) and (2) may apply
as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; PROVIDED that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 12.03 REDEMPTION OF SECURITIES FOR SINKING FUND. Not less
than 45 days (or such shorter period reasonably acceptable to the Trustee) prior
to each sinking fund payment date for any series of Securities, the Company will
deliver to the Trustee an Officers' Certificate specifying the amount of the
next ensuing sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by payment of cash
in the Applicable Currency and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 12.02 and will also deliver to the Trustee any Securities to be so
delivered (which have not been previously delivered). Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 11.03 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided in
Section 11.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
11.06 and 11.07.
ARTICLE 13
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01 APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. Unless as otherwise specified as contemplated
by Section 3.01 for Securities of such series, provision is made for the
inapplicability of, in whole or in part, or any modification to, either or both
of (a) defeasance of the Securities of a series under Section 13.02 or (b)
covenant defeasance of the Securities of a series under Section 13.03, then the
provisions of such Section or Sections, as the case may be, together with the
other provisions of this Article, shall be applicable to the Securities of such
series and the Company may at its option by a Board Resolution, at any time,
with respect to the Securities of such series elect to have either Section 13.02
(unless inapplicable) or Section 13.03 (unless inapplicable) be applied to the
Outstanding
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Securities of such series upon compliance with the applicable conditions set
forth below in this Article.
Section 13.02 DEFEASANCE AND DISCHARGE. Upon the Company's exercise
of its option provided in Section 13.01 to defease the Outstanding Securities of
a particular series, the Company shall be discharged from its obligations with
respect to the Outstanding Securities of such series on the date the applicable
conditions set forth in Section 13.04 are satisfied (hereinafter, "DEFEASANCE").
Defeasance shall mean that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same); PROVIDED, HOWEVER, that the following rights,
obligations, powers, trusts, duties and immunities shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of Outstanding
Securities of such series to receive, solely from the trust fund provided for in
Section 13.04, payments in respect of the principal of (and premium and other
amounts, if any) and interest on such Securities when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 3.03,
3.05, 3.06, 3.07, 7.01, 7.02, 10.01, 10.02, the last paragraph of Section 10.05,
and Sections 13.05 and 13.06, as well as any obligation under the terms of the
Securities of such series to maintain a registrar or paying agent, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company's obligations with respect thereto, and (D) this Article. Subject to
compliance with this Article, the Company may exercise its option with respect
to defeasance under this Section 13.02 notwithstanding the prior exercise of its
option with respect to covenant defeasance under Section 13.03 in regard to the
Securities of such series.
Section 13.03 COVENANT DEFEASANCE. Upon the Company's exercise of
its option provided in Section 13.01 to obtain a covenant defeasance with
respect to the Outstanding Securities of a particular series, the Company shall
be released from its obligations under the covenants contained in Article 8 of
this Indenture and in any applicable supplemental indenture (unless otherwise
provided therein) with respect to the Outstanding Securities of such series on
and after the date the applicable conditions set forth in Section 13.04 are
satisfied (hereinafter, "COVENANT DEFEASANCE"). Covenant defeasance shall mean
that, with respect to the Outstanding Securities of such series, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly by reason of any reference elsewhere herein or by reason of any
reference to any other provision herein or in any other document, and such
omission to comply shall not constitute an Event of Default under Section
5.01(4) or any such supplemental indenture with respect to Outstanding
Securities of such series, and the remainder of this Indenture and of the
Securities of such series shall be unaffected thereby.
Section 13.04 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to defeasance under Section 13.02 and covenant
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defeasance under Section 13.03 with respect to the Outstanding Securities of a
particular series:
(1) The Company shall irrevocably have
deposited or caused to be deposited with the Trustee, under the terms of an
irrevocable trust agreement in form and substance reasonably satisfactory to
such Trustee, as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, (A) money in the Applicable Currency
in an amount, or (B) if the Applicable Currency of such Securities is U.S.
dollars, U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than the due date of any payment, money in an amount, or (C)
a combination thereof, in each case sufficient, after payment of all federal,
state and local taxes or other charges or assessments in respect thereof payable
by the Trustee, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, (i) the principal of (and
premium and other amounts, if any, on) and each installment of principal of (and
premium and other amounts, if any) and interest on the Outstanding Securities of
such series on the Stated Maturity of such principal or installment of principal
or interest and (ii) any mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such series on the day on which such
payments are due and payable in accordance with the terms of this Indenture and
of such Securities.
(2) No Default or Event of Default with
respect to the Securities of such series shall have occurred and be continuing
on the date of such deposit or shall occur as a result of such deposit.
(3) Such deposit, defeasance or
covenant defeasance shall not result in a breach or violation of, or constitute
a default under this Indenture, or any other material debt agreement or
instrument to which the Company is a party or by which it is bound.
(4) In the case of an election with
respect to Section 13.02, the Company shall have delivered to the Trustee either
(a) a ruling directed to the Trustee received from the Internal Revenue Service
to the effect that the Holders of the Outstanding Securities of such series will
not recognize income, gain or loss for federal income tax purposes as a result
of such defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such defeasance had not occurred or (B) an Opinion of Counsel, based on such
ruling or on a change in the applicable federal income tax law since the date of
this Indenture, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for federal income tax purposes
as a result of such defeasance and will be subject to federal income tax on the
same amounts, in the same
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manner and at the same times as would have been the case if such defeasance had
not occurred.
(5) In the case of an election with
respect to Section 13.03, the Company shall have delivered to the Trustee an
Opinion of Counsel or a ruling directed to the Trustee received from the
Internal Revenue Service to the effect that the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for federal
income tax purposes as a result of such covenant defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not occurred.
(6) Such defeasance or covenant
defeasance shall be effected in compliance with any additional terms, conditions
or limitations which may be imposed on the Company in connection therewith
pursuant to Section 3.01.
(7) The Company shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for relating to either the defeasance
under Section 13.02 or the covenant defeasance under Section 13.03 (as the case
may be) have been complied with.
Section 13.05 DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST. Subject to the provisions of the last paragraph of Section 10.05, all
money and Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee, collectively for purposes of this
Section 13.05, the "TRUSTEE") pursuant to Section 13.04 in respect of the
Outstanding Securities of a particular series shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company if acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal (and premium and other amounts, if any) and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 13.04 or the principal and interest received in
respect thereof, other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon a Company Request any
money or Government Obligations held by it as provided in Section 13.04 with
respect to Securities of any series which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited for the purpose for which
such money or Government Obligations were deposited.
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Section 13.06 REINSTATEMENT. If the Trustee or the Paying Agent is
unable to apply any money or U.S. Government Obligations, as the case may be, in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, including, without limitation, any
prohibition imposed as a result of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally under any
applicable United States federal or State laws, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 13.02 or 13.03 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money or U.S. Government Obligations, as the case may be, held in trust
pursuant to Section 13.05 with respect to such Securities in accordance with
this Article; PROVIDED, HOWEVER, that if the Company makes any payment of
principal of or any premium, other amounts, if any, or interest on any such
Security following such reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holders of such Securities to receive
such payment from the money or U.S. Government Obligations, as the case may be,
so held in trust.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
TRIARC COMPANIES, INC.
By: _________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: _________________________________
Name:
Title:
