1
Exhibit 4(i)
DRAFT
6/12/97
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ARISTAR, INC.
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Standard Multiple-Series
Indenture Provisions
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Dated as of ______ __, 1997
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TABLE OF CONTENTS*
Page
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ARTICLE I
Definitions and Other Provisions of General Application
SECTION 101. Definitions.................................................. 1
SECTION 102. Compliance Certificates and Opinions......................... 8
SECTION 103. Form of Documents Delivered to Trustee....................... 9
SECTION 104. Acts of Holders; Record Dates................................ 10
SECTION 105. Notices, etc., to Trustee and Company........................ 12
SECTION 106. Notice to Holders; Waiver.................................... 12
SECTION 107. Conflict with Trust Indenture Act............................ 13
SECTION 108. Effect of Headings and Table of Contents..................... 13
SECTION 109. Successors and Assigns....................................... 13
SECTION 110. Separability Clause.......................................... 13
SECTION 111. Benefits of Indenture........................................ 14
SECTION 112. Governing Law................................................ 14
SECTION 113. Legal Holidays............................................... 14
SECTION 114. Language of Notices, Etc..................................... 14
SECTION 115. Counterparts................................................. 14
ARTICLE II
Security Forms
SECTION 201. Forms Generally.............................................. 14
SECTION 202. Form of Trustee's Certificate of
Authentication.................................. 15
SECTION 203. Securities in Global Form.................................... 15
ARTICLE III
The Securities
SECTION 301. Amount Unlimited; Issuable in Series......................... 16
SECTION 302. Denominations................................................ 19
SECTION 303. Execution, Authentication, Delivery
and Dating...................................... 20
SECTION 304. Temporary Securities......................................... 22
SECTION 305. Registration, Registration of
Transfer and Exchange........................... 25
SECTION 306. Xxxxxxxxx, Xxxxxxxxx, Lost and Stolen
Securities...................................... 30
SECTION 307. Payment of Interest; Interest Rights
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* This table of contents shall not, for any purpose, be deemed to be part
of the Indenture.
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Preserved........................................ 31
SECTION 308. Persons Deemed Owners......................................... 32
SECTION 309. Cancellation.................................................. 33
SECTION 310. Computation of Interest....................................... 33
SECTION 311. Manner of Payments in Respect of
Securities....................................... 34
SECTION 312. Compliance with Certain Laws and
Regulations...................................... 34
ARTICLE IV
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture....................... 35
SECTION 402. Application of Trust Money.................................... 36
SECTION 403. Satisfaction, Discharge and
Defeasances of Securities of Any Series............... 36
SECTION 404. Reinstatement................................................. 37
SECTION 405. Definitions................................................... 38
ARTICLE V
Remedies
SECTION 501. Events of Default............................................. 39
SECTION 502. Acceleration of Maturity; Rescission
and Annulment....................................... 40
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.......................... 41
SECTION 504. Trustee May File Proofs of Claim.............................. 42
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities............................ 43
SECTION 506. Application of Money Collected................................ 43
SECTION 507. Limitation on Suits........................................... 43
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest............. 44
SECTION 509. Restoration of Rights and Remedies............................ 44
SECTION 510. Rights and Remedies Cumulative................................ 44
SECTION 511. Delay or Omission Not Waiver.................................. 45
SECTION 512. Control by Holders............................................ 45
SECTION 513. Waiver of Past Defaults....................................... 45
SECTION 514. Undertaking for Costs......................................... 46
ARTICLE VI
The Trustee
SECTION 601. Certain Duties and Responsibilities........................... 46
SECTION 602. Notice of Defaults............................................ 47
SECTION 603. Certain Rights of Trustee..................................... 47
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SECTION 604. Not Responsible for Recitals or
Issuance of Securities............................... 49
SECTION 605. May Hold Securities.......................................... 49
SECTION 606. Money Held in Trust.......................................... 49
SECTION 607. Compensation and Reimbursement............................... 49
SECTION 608. Disqualification; Conflicting Interests...................... 50
SECTION 609. Corporate Trustee Required; Eligibility...................... 50
SECTION 610. Resignation and Removal; Appointment of
Successor.......................................... 50
SECTION 611. Acceptance of Appointment by Successor....................... 52
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business............................. 53
SECTION 613. Preferential Collection of Claims
Against Company.................................... 53
SECTION 614. Appointment of Authenticating Agent.......................... 53
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company To Furnish Trustee Names and
Addresses of Holders............................... 55
SECTION 702. Preservation of Information;
Communications to Holders.......................... 56
SECTION 703. Reports by Trustee........................................... 56
SECTION 704. Reports by Company........................................... 57
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms.............................. 57
SECTION 802. Successor Corporation Substituted............................ 58
ARTICLE IX
Supplemental Indentures
SECTION 901. Supplemental Indentures Without
Consent of Holders................................. 58
SECTION 902. Supplemental Indentures With Consent
of Holders........................................... 60
SECTION 903. Execution of Supplemental Indentures......................... 61
SECTION 904. Effect of Supplemental Indentures............................ 61
SECTION 905. Conformity With Trust Indenture Act.......................... 62
SECTION 906. Reference in Securities to
Supplemental Indentures.............................. 62
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ARTICLE X
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.................... 62
SECTION 1002. Maintenance of Office or Agency............................... 62
SECTION 1003. Money for Securities Payments to be
Held in Trust.................................... 64
SECTION 1004. Additional Amounts............................................ 65
SECTION 1005. Statement as to Compliance.................................... 66
ARTICLE XI
Redemption of Securities
SECTION 1101. Applicability of Article...................................... 66
SECTION 1102. Election to Redeem; Notice to Trustee......................... 67
SECTION 1103. Selection by Trustee of Securities
to be Redeemed.................................... 67
SECTION 1104. Notice of Redemption.......................................... 68
SECTION 1105. Deposit of Redemption Price................................... 69
SECTION 1106. Securities Payable on Redemption Date......................... 69
SECTION 1107. Security Redeemed in Part..................................... 70
ARTICLE XII
Sinking Funds
SECTION 1201. Applicability of Article...................................... 70
SECTION 1202. Satisfaction of Sinking Fund
Payments With Securities.......................... 71
SECTION 1203. Redemption of Securities for Sinking Fund..................... 71
ARTICLE XIII
Meetings of Holders of Securities
SECTION 1301. Purposes for Which Meetings May Be Called..................... 72
SECTION 1302. Call, Xxxxxx and Place of Meetings............................ 72
SECTION 1303. Persons Entitled To Vote at Meetings.......................... 72
SECTION 1304. Quorum; Action................................................ 73
SECTION 1305. Determination of Voting Rights; Conduct
and Adjournment of Meetings..................... 74
SECTION 1306. Counting Votes and Recording Action
of Meetings..................................... 75
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ARTICLE XIV
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION 1401. Immunity of Incorporators,
Stockholders, Officers and Directors............ 75
ARTICLE XV
Subordination
SECTION 1501. Agreement to Subordinate...................................... 76
SECTION 1502. No Payments to Holders of Securities
in Certain Circumstances.......................... 76
SECTION 1503. Payments by Trustee or Holders of
Securities to Holders of Senior Debt.............. 78
SECTION 1504. Subrogation................................................... 78
SECTION 1505. Obligation of Company Unconditional........................... 79
SECTION 1506. Payments on Securities Permitted.............................. 80
SECTION 1507. Effectuation of Subordination by Trustee...................... 80
SECTION 1508. Knowledge of Trustee.......................................... 80
SECTION 1509. Trustee May Hold Senior Debt.................................. 81
SECTION 1510. Rights of Holders of Senior Debt
Not Impaired.................................... 81
SECTION 1511. Rights and Obligations Subject to
Power of Court.................................. 81
SECTION 1512. Definitions................................................... 81
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EXHIBIT A - FORMS OF CERTIFICATION
EXHIBIT A.1 - FORM OF CERTIFICATE TO BE GIVEN
BY PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PRIOR TO AN EXCHANGE
DATE
EXHIBIT A.2 - FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR
OR CEDEL S.A. IN CONNECTION WITH THE EXCHANGE
OF A PORTION OF A TEMPORARY GLOBAL SECURITY OR
TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
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ARISTAR, INC.
Reconciliation and Tie Between Trust Indenture Act of 1939 and
Standard Multiple-Series Indenture Provisions1
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . 608
610
Section 311(a) . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . 701
702(a)
(b) . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . 703(b)
Section 314(a) . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . 1005
(b) . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . 502
512
(a)(1)(B) . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . 104(g)
Section 317(a)(1) . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . 107
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1. This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
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ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 101. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally within an Article of this
Indenture, may be defined in that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate
securities of one or more series.
"Authorized Newspaper" means a newspaper of general
circulation in the place of publication, printed in the official language of the
country of publication and customarily
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published on each Business Day, whether or not published on Saturdays, Sundays
or holidays. Whenever successive weekly publications in an Authorized Newspaper
are authorized or required hereunder, they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.
"Bearer Security" means any Security in the form of a bearer
security established pursuant to Section 301 which is payable to bearer and is
not a Registered Security (including without limitation any Security in
temporary or definitive global bearer form).
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment
or place of publication, means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that Place of Payment
or place of publication are authorized or obligated by or pursuant to law,
regulation or executive order to close or as specified for a series of
Securities pursuant to Section 301 or as specified for any Security in such
Security.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, 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.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request", "Request of the Company", "Company Order"
or "Order of the Company" means a written request or order signed in the name of
the Company by its Chairman of the Board, its President or a Vice President, and
by its Treasurer, an Assistant Treasurer, its Controller, an Assistant
Controller, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Subsidiary" means every Subsidiary which does
not transact any substantial portion of its business or regularly maintain any
substantial portion of its operating assets outside the United States or Canada
other than (i) a Subsidiary acquired or organized after the date of this
Indenture which, prior to the date of acquisition or organization, shall have
been classified by resolution of the Board of Directors or Executive Committee
of the Board of Directors of the Company as an Unconsolidated Subsidiary unless
and until the Board of Directors or Executive Committee of the Board of
Directors of the Company shall by resolution reclassify such Subsidiary as a
Consolidated Subsidiary; and (ii) any Subsidiary of an
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Unconsolidated Subsidiary; provided, however, that an Unconsolidated Subsidiary
shall not be a successor, directly or indirectly, to any Consolidated
Subsidiary.
"Corporate Trust Office" means the office of the Trustee in
The City of New York at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is that
indicated in Section 615 of this Indenture, except that with respect to the
presentation of Securities (or Coupons, if any, representing an installment of
interest) for payment or for registration of transfer and exchange, such term
shall mean the office or the agency of the Trustee in said city at which at any
particular time its corporate agency business shall be conducted.
"corporation" includes corporations, associations, companies
and business trusts.
"Coupon" or "coupon" means any interest coupon appertaining to
a Bearer Security.
"Debt" means indebtedness of the Company or any Consolidated
Subsidiary representing money borrowed (which term shall include evidences of
indebtedness representing extensions of credit whether or not representing
obligations for money borrowed), except indebtedness owed to the Company by any
Consolidated Subsidiary or owed to any Consolidated Subsidiary by the Company or
any other Consolidated Subsidiary, and shall include indebtedness of any other
person for money borrowed when such indebtedness is guaranteed by the Company or
any Consolidated Subsidiary. The term "Debt" shall be deemed to include the
liability of the Company or any Consolidated Subsidiary in respect of any
investment or similar certificate, except to the extent such certificates are
pledged by purchasers as collateral for, and are offset by, receivables.
"Defaulted Interest" has the meaning specified in Section 307.
"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 301 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Securities of that series.
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
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"Global Security" or "global Security" means a Registered or
Bearer Security evidencing all or part of a series of Securities issued to the
Depositary for such series in accordance with Section 303.
"Holder" or "holder" means, with respect to a Registered
Security, the Person in whose name at the time a particular Registered Security
is registered in the Security Register and, with respect to a Bearer Security
and/or Coupon, the bearer thereof.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or any Vice President, and by the
Treasurer, the Controller, the Secretary or any Assistant Treasurer, Assistant
Controller or Assistant Secretary, of the Company, and delivered to the Trustee.
Each such Officers' Certificate shall contain the statements provided in Section
102, if applicable.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for or an employee of the Company and who shall be acceptable to
the Trustee. Each Opinion of Counsel shall contain the statements provided in
Section 102, if applicable.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding" or "outstanding", when used with respect to
Securities, means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
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(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
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 a
quorum is present at a meeting of Holders of Outstanding Securities or the
number of votes entitled to be cast by each Holder of a Security in respect of
such Security at any such meeting (i) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, and (ii) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest, if any, on any
Securities on behalf of the Company.
"Person" or "person" means any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of (and premium, if
any) and interest, if any, on the Securities of that series are payable as
specified in accordance with Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306
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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 to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form of a
registered security established pursuant to Section 301 which is registered in
the Security Register as to principal and any interest (including without
limitation any Security in temporary or definitive global registered form).
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of any series means the date specified
for that purpose as contemplated by Section 301, which date shall be, unless
otherwise specified pursuant to Section 301, the fifteenth day preceding such
Interest Payment Date, whether or not such day shall be a Business Day.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice chairman of the board of directors, the chairman
or any vice chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security (or
Coupon, if any, representing an installment of interest) or any installment of
principal thereof or interest thereon, means the date specified in such Security
(or Coupon) as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means any corporation at least a majority of the
outstanding voting stock of which shall at the time be owned, directly or
indirectly, by the Company or by one or more Subsidiaries or by the Company and
one or more Subsidiaries. For the purposes of this
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definition, "voting stock", as applied to the stock (or the equivalent thereof,
in the case of corporations incorporated outside the continental limits of the
United States) of any corporation, means stock (or such equivalent) of any class
or classes, however designated, having ordinary voting power for the election of
at least a majority of the members of the board of directors (or other governing
body) of such corporation, other than stock (or such equivalent) having such
power only by reason of the happening of a contingency.
"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 instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Unconsolidated Subsidiary" means any subsidiary other than a
Consolidated Subsidiary.
"United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions, the
Commonwealth of Puerto Rico and other areas subject to its jurisdiction.
"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".
"Yield to Maturity", when used with respect to any Original
Issue Discount Security, means the annual yield to maturity, if any, set forth
on the face thereof.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, except the certificate of
destruction pursuant to Section 309, shall include
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(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders; Record Dates. (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 agent xxxx appointed in writing. If Securities
of a series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
XIII, or a combination of such
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instruments and any such record. 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 or so voting at any such meeting. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
601) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be proved
by the production of such Bearer Securities or by certificate executed by any
trust company, bank, banker or other depositary, wherever situated, showing that
at the date therein mentioned such Person had on deposit with such depositary,
or exhibited to it, the Bearer Securities therein described; or such facts may
be proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, (2) such
Bearer Security is produced to the Trustee by some other Person, (3) such Bearer
Security is surrendered in exchange for a Registered Security or (4) such Bearer
Security is no longer Outstanding.
(d) The fact and date of execution of any such instrument or
writing pursuant to clause (c) above, the authority of the Person executing the
same and the principal amount and serial numbers of Bearer Securities held by
the Person so executing such instrument or writing and the date of holding the
same may also be proved in any other manner which the Trustee deems sufficient;
and the Trustee may in any instance require further proof with respect to any of
the matters referred to in this clause.
(e) The principal amount and serial numbers of Registered
Securities held by any Person and the date of holding the same shall be proved
by the Security Register.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of a Holder shall bind every future Holder of the
same Security and/or Coupon and the Holder of every Security and/or Coupon
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
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done by the Trustee or the Company in reliance thereon, whether or not notation
of such action is made upon such Security and/or Coupon.
(g) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, or in
the circumstances permitted by the Trust Indenture 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. Where the Company does not fix a record date
prior to the first solicitation of a Holder made by any Person in respect of any
such Act, the record date for any such Act shall be the 30th day (or, if later,
the date of the most recent list of Holders required to be provided pursuant to
Section 701) prior to such first solicitation. With regard to any record date,
any 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.
SECTION 105. Notices, etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office and unless otherwise herein expressly provided,
any such document shall be deemed to be sufficiently made, given,
furnished or filed upon its receipt by a Responsible Officer of the
Trustee, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company, Attention: Secretary.
SECTION 106. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event:
(i) if any of the Securities affected by such event are
Registered Securities, such notice shall be sufficiently given (unless
otherwise herein 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, within the time
prescribed for the giving of such notice, and
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(ii) if any of the Securities affected by such event are
Bearer Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided or unless otherwise specified in
such Securities) if published once in an Authorized Newspaper in New
York City and London and mailed to such Persons whose names and
addresses were previously filed with the Trustee, within the time
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as the Company shall direct the Trustee
in writing to give shall constitute a sufficient notification for every purpose
hereunder. 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.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as the
Company shall direct the Trustee in writing to give shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to give
notice by publication to Holders of Bearer Securities as provided above, nor any
defect in any notice so published, shall affect the sufficiency of any notice to
Holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act. This Indenture
is subject to, and shall be governed by, the provisions of the Trust Indenture
Act that are required to be a part of this Indenture. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be a part of and govern this Indenture, the latter
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 excluded,
the latter provision shall be deemed to apply to this Indenture as so modified
or to be excluded, as the case may be.
SECTION 108. 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 109. 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 110. 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.
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SECTION 111. Benefits of Indenture. Nothing in this Indenture
or in the Securities or Coupons, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. Governing Law. This Indenture and the Securities
and Coupons shall be governed by and construed in accordance with the laws of
the State of New York, without regard to conflicts of laws provisions thereof
other than Section 5-1401 of the New York General Obligations Law.
SECTION 113. Legal Holidays. Except as otherwise specified as
contemplated by Section 301, in any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall not be a Business Day
at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities or Coupons, if any) payment of interest or
principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be, to the next succeeding Business Day at
such Place of Payment.
SECTION 114. Language of Notices, Etc. Any request, demand,
authorization, direction, notice, consent or waiver required or permitted under
this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
SECTION 115. Counterparts. This Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
ARTICLE II
Security Forms
SECTION 201. Forms Generally. The Securities of each series
and the Coupons, if any, to be attached thereto shall be in substantially the
forms as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
and Coupons, if any, as evidenced by their execution of the Securities and
Coupons, if any. If the form of Securities of any series is established by or by
action taken pursuant to a Board Resolution, a copy of the Board Resolution
together with an appropriate record of any action taken pursuant thereto, which
Board Resolution or record of
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such action shall have attached thereto a true and correct copy of the forms of
Security approved by or pursuant to such Board Resolution, shall be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such Securities.
The definitive Securities and Coupons, if any, shall be
printed, typed, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated and
issued under the within-mentioned Indenture.
[full name of Trustee],
as Trustee
By
Authorized [Officer] [Signatory]
SECTION 203. Securities in Global Form. If Securities of a
series are issuable in global form, as specified as contemplated by Section 301,
then, notwithstanding clause (8) of Section 301 and the provisions of Section
302, such Security shall represent such of the Outstanding Securities of such
series as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities from time to time endorsed thereon
and that the aggregate amount of Outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or decrease in the amount,
of Outstanding Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or Section 304. Subject to the provisions of Section 303
and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in definitive global bearer form in the manner and upon written
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of the eighth paragraph of
Section 303 shall apply to any Security represented by a Security in global form
if such Security was never issued and sold by the Company and the Company
delivers to the Trustee the Security in global form together with written
instructions (which need not comply with Section 102 and need not be accompanied
by an Opinion of Counsel) with regard to the reduction in the principal amount
of
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Xxxxxxxxxx represented thereby, together with the written statement contemplated
by the last sentence of the eighth paragraph of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and any interest on any Security in definitive global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a definitive global Security as
shall be specified in a written statement of the Holder of such definitive
global Security or, in the case of a definitive global Security in bearer form,
of Euro-clear or CEDEL, S.A. which is produced to the Trustee by such Person.
ARTICLE III
The Securities
SECTION 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more
series. There shall be established in or pursuant to a Board Resolution, and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) the date or dates on which the principal of (and premium,
if any, on) any of the Securities of the series are payable or the
method of determination thereof and the amount or amounts of any
installment of principal payable on such dates;
(4) the rate or rates, or the method of determination thereof,
at which any of the Securities of the series shall bear interest, if
any, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Registered
Securities on any Interest Payment Date;
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(5) the place or places where the principal of (and premium,
if any) and interest, if any, on any of the Securities and Coupons, if
any, of the series shall be payable and the office or agency for the
Securities of the series maintained by the Company pursuant to Section
1002;
(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which any of the Securities and
any Coupons of the series may be redeemed, in whole or in part, at the
option of the Company;
(7) the terms of any sinking fund and the obligation, if any,
of the Company to redeem or purchase Securities of the series pursuant
to any sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of
the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(8) if other than denominations of $1,000, if registered, and
$5,000, if bearer, and any integral multiple of the applicable
denominations, the denominations in which the Securities of the series
shall be issuable;
(9) if other than the principal amount thereof, the portion of
the principal amount of any of the Securities of the series which shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(10) the application, if any, of Section 403, or such other
means of satisfaction and discharge as may be specified for the
Securities and Coupons, if any, for a series;
(11) any deletions or modifications of or additions to the
Events of Default set forth in Section 501 or covenants of the Company
set forth in Article X pertaining to the Securities of the series;
(12) the forms of the Securities and Coupons, if any, of the
series;
(13) whether the Securities of the series are to be issued as
Registered Securities or Bearer Securities (with or without Coupons),
or a combination thereof, whether Bearer Securities may be exchanged
for Registered Securities of the series and whether Registered
Securities may be exchanged for Bearer Securities of the series (if
permitted by applicable laws and regulations) and the circumstances
under which and the place or places where any such exchanges, if
permitted, may be made; and whether any Securities of the series are to
be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in definitive global form
with or without Coupons and, if so, whether beneficial owners of
interests in any such definitive global Security may exchange such
interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which and
the place or places where any such exchanges may occur, if other than
in the manner provided in Section 305;
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(14) if the Securities and Coupons, if any, of the series are
to be issued upon the exercise of warrants, the time, manner and place
for Securities to be authenticated and delivered;
(15) whether and under what circumstances and with what
procedures and documentation the Company will pay additional amounts on
any of the Securities and Coupons, if any, of the series to any Holder
who is not a United States person (including a definition of such
term), in respect of any tax, assessment or other governmental charge
withheld or deducted from a payment thereon and, if so, whether the
Company will have the option to redeem such Securities rather than pay
additional amounts (and the terms of any such option);
(16) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, the manner in which, or the Person to whom, any interest on
any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the Coupons appertaining thereto as
they severally mature and the extent to which, or the manner in which,
any interest payable on a temporary global Security on an Interest
Payment Date will be paid if other than in the manner provided in
Section 304;
(17) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities and, in
such case, the Depositary for such Global Security or Securities; and
(18) any other terms of any of the Securities of the series
(which terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series and the Coupons appertaining
to any Bearer Securities of such series shall be substantially identical except
as to denomination, the rate or rates of interest, if any, and the Maturity and
except as may otherwise be provided in or pursuant to the Board Resolution
referred to above and (subject to Section 303) set forth in the Officers'
Certificate referred to above or in any such indenture supplemental hereto.
The Securities shall be payable as to principal and interest,
if any, and any premium payable upon the redemption thereof in Dollars. At the
option of the Company, interest on the Registered Securities of any series that
bears interest may be paid by mailing a check to the address of any Holder as
such address shall appear in the Securities Register.
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 together with such Board Resolution shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the Securities of such series.
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SECTION 302. Denominations. The Securities of each series
shall be issuable in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000, if registered, and $5,000, if bearer, and in any
integral multiple of the applicable denominations. Securities of each series
shall be numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Company executing the same may
determine with the approval of the Trustee.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed in the name and on behalf of the Company by
manual or facsimile signatures of its Chairman of the Board, its President or
any of its Vice Presidents, under its corporate seal reproduced thereon attested
by the manual or facsimile signature of its Secretary or one of its Assistant
Secretaries. Any Coupons shall be executed on behalf of the Company by the
manual or facsimile signature of any such officer of the Company.
Securities and Coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any Coupons appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with the sale of a Bearer Security during the "restricted period"
as defined in United States Treasury regulation section 1.163-5(c)(2)(i)(D)(7),
no Bearer Security shall be mailed or otherwise delivered to any location in the
United States; and provided, further, that a definitive Bearer Security sold
during the restricted period may be delivered only outside the United States and
only if the Person entitled to receive such definitive Bearer Security shall
have furnished a certificate in the form set forth in Exhibit A.1 to this
Indenture, dated no earlier than 15 days prior to the earlier of the date on
which such definitive Bearer Security is delivered and the date on which any
temporary bearer Global Security first becomes exchangeable for such definitive
Bearer Security in accordance with the terms of such temporary Security and this
Indenture. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant Coupons for
interest then matured have been detached and canceled.
If all the Securities of a series are not to be originally
issued at one time, and if the Board Resolution, Officers' Certificate or
supplemental indenture establishing such series shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Securities and the determination of the terms of particular Securities of
such series such as interest rate or rates (or the method in which such rate or
rates are to be determined), if any, Stated Maturity, date of issuance and date
from which interest, if any, shall accrue.
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If the forms or terms of the Securities of the series and any
related Coupons have been established by or pursuant to one or more Board
Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating:
(a) if the forms of such Securities and any Coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 201, that such forms have been established in conformity with
the provisions of this Indenture; and
(b) if the terms of such Securities and any Coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 301, that such terms have been established in conformity with
the provisions of this Indenture.
Notwithstanding the provisions of Section 301 and of the
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 Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to such 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.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security and any Bearer Security in global form
shall be dated as of the date of original issuance of the first Security of such
series to be issued.
No Security or Coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been duly 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 309
together with a written statement (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) stating that such Security has
never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in whole or in part in the form of a
Global Security, then the Company shall execute and the Trustee shall in
accordance with this Section and the Company Order with respect to such series
authenticate and deliver the Global Security that (i) shall represent and shall
be denominated in an aggregate amount equal to the aggregate principal amount of
Outstanding Securities of such series to be represented by the Global Security,
(ii) shall be registered, if in registered form, in the name of the Depositary
for such Global Security or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or
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pursuant to such Depositary's instruction, and (iv) shall bear a legend
substantially to the following effect: "Unless and until this Security is
exchanged in whole or in part for Securities in definitive form, 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" or to such other
effect as the Depositary and the Trustee may agree.
Each Depositary designated pursuant to Section 301 for a
Global Security in registered form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation. The Trustee shall have no responsibility to determine if the
Depositary is so registered.
SECTION 304. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, (i) in registered form or (ii) in bearer form,
with one or more Coupons or without Coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced conclusively by their
execution of such Securities. Such temporary Securities may be (in the case of
Registered Securities) and shall be (in the case of Bearer Securities) in global
form.
Except in the case of temporary Global Securities in bearer
form (which are exchangeable for definitive Bearer Securities in accordance with
the provisions of the following paragraphs), if temporary Securities of any
series are issued, the Company will cause definitive Securities of that series
to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company
maintained pursuant to Section 1002 in a Place of Payment for such series for
the purpose of exchanges of Securities of such series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities
of any series (accompanied by any unmatured Coupons appertaining thereto) the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like aggregate principal amount of definitive Securities of the same
series and of like tenor and authorized denominations; provided, however, that
no definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and provided, further, that a definitive Bearer Security
(including a definitive Bearer Security in global form) shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 303.
If temporary Global Securities in bearer form of any series
are issued, any such temporary global Securities in bearer form shall, unless
otherwise provided therein, be delivered to the London office of a Depositary
(the "Common Depositary"), for the benefit of Euro-clear and CEDEL, S.A., for
credit to the respective accounts of the beneficial owners of such Securities
(or to such other accounts as they may direct).
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Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security in bearer form (the "Exchange Date"), the Company shall deliver
to the Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security in bearer form, executed by
the Company. On or after the Exchange Date, such temporary global Security in
bearer form shall be surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security in bearer form, an equal aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such temporary global Security in bearer form to be exchanged.
The definitive Securities to be delivered in exchange for any such temporary
global Security in bearer form shall be in bearer form, registered form,
definitive global form (registered or bearer), or a combination thereof, as
specified as contemplated by Section 301, and, if a combination thereof is so
specified, as requested by the beneficial owner thereof; provided, however,
that, unless otherwise specified in such temporary global Security in bearer
form, upon such presentation by the Common Depositary, such temporary global
Security in bearer form shall be accompanied by a certificate dated the Exchange
Date or a subsequent date and signed by Euro-clear as to the portion of such
temporary global Security in bearer form held for its account then to be
exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by CEDEL, S.A. as to the portion of such temporary global Security in
bearer form held for its account then to be exchanged, each in the form set
forth in Exhibit A.2 to this Indenture; and provided, further, that definitive
Bearer Securities shall be delivered in exchange for a portion of a temporary
global Security in bearer form only in compliance with the requirements of
Section 303.
Unless otherwise specified in such temporary global Security
in bearer form, the interest of a beneficial owner of Securities of a series in
a temporary global Security in bearer form shall be exchanged for definitive
Securities of the same series and of like tenor following the Exchange Date when
the beneficial owner instructs Euro-clear or CEDEL, S.A., as the case may be, to
request such exchange on his behalf and delivers to Euro-clear or CEDEL, S.A.,
as the case may be, a certificate in the form set forth in Exhibit A.1 of this
Indenture, dated no earlier than 15 days prior to the Exchange Date, copies of
which certificate shall be available from the offices of Euro-clear, CEDEL,
S.A., the Trustee, any Authenticating Agent appointed for such series of
Securities and any Paying Agent appointed for such series of Securities. Unless
otherwise specified in such temporary global Security in bearer form, any such
exchange shall be made free of charge to the beneficial owners of such temporary
global Security in bearer form, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the like
in the event that such Person does not take delivery of such definitive
Securities in person at the offices of Euro-clear or CEDEL, S.A. The definitive
Securities in bearer form to be delivered in exchange for any portion of a
temporary global Security in bearer form shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary
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global Security in bearer form on an Interest Payment Date for Securities of
such series occurring prior to the applicable Exchange Date shall be payable to
Euro-clear and CEDEL, S.A. on such Interest Payment Date upon delivery by
Euro-clear and CEDEL S.A. to the Trustee of a certificate or certificates in the
form set forth in Exhibit A.2 to this Indenture, for credit without further
interest on or after such Interest Payment Date to the respective accounts of
the Persons who are the beneficial owners of such temporary global Security in
bearer form (or to such other accounts as they may direct) on such Interest
Payment Date and who have each delivered to Euro-clear or CEDEL, S.A., as the
case may be, a certificate in the form set forth in Exhibit A.1 to this
Indenture. Any interest so received by Euro-clear and CEDEL, S.A. and not paid
as herein provided shall be returned to the Trustee immediately prior to the
expiration of two years after such Interest Payment Date in order to be repaid
to the Company in accordance with Section 1003.
SECTION 305. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 1002 a register (being the
combined register of the Security Registrar and all transfer agents designated
pursuant to Section 1002 for the purpose of registration of transfer of
Securities and sometimes collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Registered Securities and the registration
of transfers of Registered Securities. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Registered Securities and transfers of
Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained
pursuant to Section 1002 for such purpose in a Place of Payment for such series,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any
series (except a Global Security representing all or a portion of the Securities
of such series) may be exchanged for other Registered Securities of the same
series of any authorized denominations and of a like aggregate principal amount
and tenor, upon surrender of the Registered Securities to be exchanged at any
such office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive. Bearer Securities may not be issued in exchange for
Registered Securities.
The Company may establish pursuant to Section 301 that, at the
option of the Holder (subject to Section 303), Bearer Securities of any series
may be exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured Coupons and all matured Coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured Coupon
or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal
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to the face amount of such missing Coupon or Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
is furnished to each of them such security or indemnity as each may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to any Paying Agent any such missing Coupon in
respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; provided, however, that, except
as otherwise provided in Section 1002, interest represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an office or
agency located outside the United States. Notwithstanding the foregoing, in case
a Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and like tenor after the
close of Business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the Coupon relating
to such Interest Payment Date or proposed date for payment, as the case may be,
and interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any definitive global Bearer Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a definitive global Bearer Security are entitled to exchange such
interests for Securities of such series and of like tenor and principal amount
of another authorized form and denomination, as specified as contemplated by
Section 301, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such definitive global Bearer Security, executed by
the Company. On or after the earliest date on which such interests may be so
exchanged, such definitive global Bearer Security shall be surrendered by the
Common Depositary or such other depositary or Common Depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such definitive global
Bearer Security, an equal aggregate principal amount of definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such definitive global Bearer Security to be exchanged which, unless the
Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 301, shall be in
the form of Bearer Securities or Registered Securities or any combination
thereof, as shall be specified by the beneficial owner thereof; provided,
however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities of that series to
be redeemed and ending on the relevant Redemption Date; and
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provided, further, that no Bearer Security delivered in exchange for a portion
of a definitive global Security shall be mailed or otherwise delivered to any
location in the United States. If a Registered Security is issued in exchange
for any portion of a definitive global Bearer Security after the close of
business at the office or agency where such exchange occurs on (i) any Regular
Record Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, interest or Defaulted Interest, as the case may
be, will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but will be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, only to the Person to whom interest in respect of such portion of such
definitive global Bearer Security is payable in accordance with the provisions
of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Trustee or any transfer agent) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar or any transfer agent duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before any selection of Securities of that
series to be redeemed and ending at the close of business on (A) if Securities
of the series are issuable only as Registered Securities, the day of the mailing
of the relevant notice of redemption and (B) if Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor; provided, that such Registered Security shall be simultaneously
surrendered for redemption.
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 if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section
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303, the Company shall appoint a successor Depositary with respect to the
Securities of such series. If a successor Depositary for the Securities of such
series is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such ineligibility, the Company's election
pursuant to Section 301 shall no longer be effective with respect to the
Securities of such series and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security representing such series in exchange for
such Global Security.
If specified by the Company pursuant to Section 301 with
respect to a series of Securities, the Company may at any time and in its sole
discretion determine that the Securities of any series issued in the form of one
or more Global Securities shall no longer be represented by such Global Security
or Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver Securities of such
series in definitive form and in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 301 with
respect to a series of Securities, the Depositary for such series of Securities
may surrender a Global Security for such series of Securities in exchange in
whole or in part for Securities of such series in definitive form on such terms
as are acceptable to the Company and such Depositary; provided, however, that no
portion of a Global Security in registered form may be surrendered in exchange
for Securities in bearer form. Thereupon, the Company shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, shall authenticate and deliver, without
charge to the Holders,
(i) to each Person specified by such Depositary a new
Security or Securities of the series of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Global Security;
and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee will authenticate and
deliver Securities (a) in definitive registered form in authorized
denominations, if the Securities of such series are issuable as Registered
Securities, (b) in definitive bearer form in authorized denominations, with
coupons attached, if the Securities of such series are issuable as Bearer
Securities or (c) as either Registered or Bearer Securities, if the Securities
of such series are issuable in either form; provided, however, that a Bearer
Security may not be delivered in exchange for a Registered Security, and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Global Security in bearer form only in compliance with
the conditions set forth
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in Section 303 and provided, further, that delivery of a Bearer Security shall
be made only outside the United States.
Upon the exchange of a Global Security for Securities in
definitive form, such Global Security shall be canceled by the Trustee.
Registered Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee in
writing. The Trustee shall deliver such Registered Securities to the persons in
whose names such Securities are so registered.
Notwithstanding any other provisions of this Section to the
contrary, unless and until a Global Security is exchanged in whole for
Securities in definitive form, a Global Security representing all or a portion
of the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or Security with a mutilated Coupon appertaining to it
is surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding with Coupons corresponding to the Coupons, if any,
appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to each of their satisfaction of the destruction, loss or theft of any
Security or Coupon and (ii) such security or indemnity as may be required by
each of them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
or Coupon has been acquired by a bona fide purchaser, the Company shall execute
and the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security to which a destroyed,
lost or stolen Coupon appertains (upon surrender to the Trustee of such Security
with all appurtenant Coupons not destroyed, lost or stolen), a new Security of
the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen Coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security
or Coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security or Coupon, pay such Security
or Coupon; provided, however, that principal of (and premium, if any) and any
interest on Bearer Securities shall, except as otherwise provided in Section
1002, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
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Upon the issuance of any new Security or Coupon 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 or Coupon of any series issued pursuant to
this Section in lieu of any mutilated, destroyed, lost or stolen Security or
Coupon shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, 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
or Coupons 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 or
Coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect to any
series of Securities, interest on any Registered Security which is payable, and
is punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Securities of such
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series at his 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 Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security, and, subject as aforesaid, each such Security shall be so dated,
or have attached thereto such Coupons, that neither gain nor loss in interest
shall result from such transfer, exchange or substitution.
SECTION 308. Persons Deemed Owners. Prior to due presentment
of a Registered Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
such Registered Security is registered as the owner of such Registered Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 305 and 307) any 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.
Title to any Bearer Security and any Coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the Holder of any Bearer Security and the
Holder of any Coupon as the absolute owner of such Security or Coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or Coupon 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.
Notwithstanding the foregoing, with respect to any Global
Security, nothing herein shall prevent the Company, the Trustee, or any agent of
the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any Depositary, as a Holder, with
respect to such Global Security or impair, as between such Depositary and owners
of beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such Depositary (or its
nominee) as Holder of such Global Security. Neither the Company, the Trustee,
nor any agent of the Company or the Trustee, will have any responsibility or
liability for any aspects of the records relating to or
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payments made on account of beneficial ownership interests in a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
SECTION 309. Cancellation. All Securities and Coupons
surrendered for payment, redemption, registration of transfer or exchange or for
credit against any sinking fund payment shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee. All such Securities and
Coupons so delivered, and all such Securities and Coupons so surrendered to the
Trustee, shall be promptly canceled by the Trustee. All Bearer Securities and
unmatured Coupons held by the Trustee pending such cancellation shall be deemed
to be delivered for cancellation for all purposes of this Indenture and the
Securities. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly 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 and Coupons held by the
Trustee shall be disposed of in a manner selected by the Trustee and the Trustee
shall deliver a certificate evidencing such destruction to the Company.
SECTION 310. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 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 311. Manner of Payments in Respect of Securities. The
provisions of this Section shall apply to the Securities of any series unless
otherwise provided as contemplated by Section 301.
(a) The following payment provisions shall apply to any
Registered Security of any series:
(1) Except as provided in subparagraph (a)(2) below,
payment of principal of and premium, if any, on such
Registered Security will be made at the Place of Payment by
delivery of a check on the payment date or dates against
surrender of such Registered Security, and any interest on any
Registered Security will be paid at the Place of Payment by
mailing a check by first class mail to the Person entitled
thereto at the address of such Person appearing on the
Security Register.
(2) Payment of the principal of, premium, if any, and
interest, if any, on such Security may also, subject to
applicable laws and regulations, be made at such other place
or places as may be designated by the Company by any
appropriate method.
(b) Payment of the principal of and premium, if any, and
interest, if any, on any Bearer Security will be made, except as
provided in Section 304 with respect to temporary global Securities,
unless otherwise specified pursuant to Section 301 and/or
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Section 901(8), at such place or places outside the United States as
may be designated by the Company pursuant to any applicable laws or
regulations by any appropriate method on the payment date therefor
against surrender of the Bearer Security, in the case of payment of
principal and premium, if any, or the relevant Coupon, in the case of
payment of interest, if any, to a Paying Agent designated for such
series pursuant to Section 1002.
(c) Not later than 10 Business Days (with respect to any Place
of Payment) prior to each payment date, the Trustee shall deliver to
the Company a copy of its record of the respective aggregate amounts of
principal of, premium, if any, and interest, if any, on the Securities
to be made on such payment date, specifying the amounts so payable in
respect of Registered Securities and Bearer Securities.
SECTION 312. Compliance with Certain Laws and Regulations. If
any Bearer Securities are to be issued in any series of Securities, the Company
will use reasonable efforts to provide for arrangements and procedures designed
pursuant to then applicable laws and regulations, if any, to ensure that such
Bearer Securities are sold or resold, exchanged, transferred and paid only in
compliance with such laws and regulations and without adverse consequences to
the Company, the Holders and the Trustee.
ARTICLE IV
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect (except as to
any surviving rights of (as applicable) registration of transfer or exchange of
Securities and Coupons, if any, of any series herein expressly provided for),
and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when
(1) either
(A) all Securities and Coupons theretofore
authenticated and delivered (other than (i) Securities and
Coupons which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii)
Securities and Coupons for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities and Coupons not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
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(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (B)(i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount sufficient to
pay and discharge the entire indebtedness on such Securities
and Coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and
interest, if any, to the date of such deposit (in the case of
Securities and Coupons which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607, the
obligations of the Company to any Authenticating Agent under Section 614 and, if
money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Sections 401 and 403 shall be held in trust and applied by
it, in accordance with the provisions of the Securities and Coupons, if any, and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and any interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
SECTION 403. Satisfaction, Discharge and Defeasances of
Securities of Any Series. If this Section is specified, as contemplated by
Section 301, to be applicable to Securities and Coupons, if any, of any series,
the Company will be deemed to have been Discharged (as defined below) from its
obligations with respect to Securities and Coupons, if any, of such series when
(1) either
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(A) with respect to all Outstanding Securities and
Coupons of such series, the Company has deposited or caused to
be deposited with the Trustee as a trust fund specifically
pledged as security for, and dedicated solely to, the benefit
of the Holders of the Securities and Coupons, if any, of such
series, (i) money in an amount as will, or (ii) U.S.
Government Obligations (as defined below) as will, together
with the predetermined and certain income to accrue thereon
without consideration of any reinvestment thereof, or (iii) a
combination of (i) and (ii) as will (in a written opinion with
respect to (ii) or (iii) of independent public accountants
delivered to the Trustee), be sufficient to pay and discharge
the entire indebtedness on all Outstanding Securities and
Coupons of such series for principal (and premium, if any) and
interest, if any, to the Stated Maturity or any Redemption
Date as contemplated by the last paragraph of this Section
403, as the case may be; or
(B) with respect to all Outstanding Securities and
Coupons of such series, the Company has properly fulfilled
such other means of satisfaction and discharge as is specified
by Section 301 to be applicable to the Securities and Coupons,
if any, of such series; and
(2) the Company has paid or caused to be paid all other sums
payable with respect to the Outstanding Securities and Coupons, if any,
of such series;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of the entire indebtedness on all Outstanding Securities and
Coupons, if any, of any such series have been complied with; and
(4) with respect to subsection 1(A) above, the Company shall
have delivered to the Trustee (A) a ruling directed to the Company and
the Trustee received from the United States Internal Revenue Service to
the effect that the Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of the Company's exercise of its option under this Section 403
and will be subject to Federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such
deposit and discharge had not occurred, (B) an Opinion of Counsel to
the same effect as the ruling described in clause (A) above and based
upon a change in law, or (C) an instrument, in form reasonably
satisfactory to the Trustee, wherein the Company, notwithstanding the
deposit and discharge, pursuant to this Section 403, of its
indebtedness in respect of Securities of any series, or any portion of
the principal amount thereof, shall assume the obligation (which shall
be absolute and unconditional) to irrevocably deposit with the Trustee
such additional sums of money, if any, or additional U.S. Government
Obligations (meeting the requirements of this Article IV), if any, or
any combination thereof, at such time or times, as shall be necessary,
together with the money and/or U.S. Government Obligations theretofore
so deposited, to pay when due the principal of and premium, if any, and
interest due and to become due on such Securities or portions thereof;
provided, however, that such instrument may state that the obligation
of the Company to make additional deposits as aforesaid shall be
subject to the delivery to the Company by the Trustee of a notice
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asserting the deficiency accompanied by an opinion of an independent
public accountant of nationally recognized standing, selected by the
Trustee, showing the calculation thereof.
Any deposits with the Trustee referred to in Section 403(1)(A)
above shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Securities and Coupons, if any, of such series are to be redeemed prior to their
Stated Maturity, whether pursuant to any mandatory redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow
trust agreement will provide therefor and the Company will make arrangements for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company.
SECTION 404. Reinstatement. If the Trustee is unable to apply
any money or U.S. Government Obligations in accordance with Section 401 or 403
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 and Coupons, if any, of such series shall be revived and reinstated
as though no deposit had occurred pursuant to Section 401 or 403 until such time
as the Trustee is permitted to apply all such money or U.S. Governmental
Obligations in accordance with Section 401 or 403; provided, however, that if
the Company has made any payment of interest on or principal of (and premium, if
any, on) any Securities and Coupons, if any, of such series because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such series of Securities and Coupons, if any, to receive such
payment from the money or U.S. Government Obligations held by the Trustee.
SECTION 405. Definitions. The following terms, as used in this
Article IV, shall have the following meanings:
"Discharged" means that the Company will be deemed to have
paid and discharged the entire indebtedness represented by, and
obligations under, the Securities and Coupons, if any, of the series as
to which Section 403 is specified as applicable as aforesaid and to
have satisfied all the obligations under this Indenture relating to the
Securities and Coupons, if any, of such series (and the Trustee, at the
expense of the Company, will execute proper instruments acknowledging
the same), except (A) the rights of Holders thereof to receive, from
the trust fund described in Section 403(1)(A) above, payment of the
principal of (and premium, if any) and the interest, if any, on such
Securities and Coupons, if any, when such payments are due, (B) the
Company's obligations with respect to such Securities and Coupons, if
any, under Sections 305 and 306 (insofar as applicable to Securities of
such series), 402, 1002 and 1003 (last paragraph only) and the
Company's obligations to the Trustee under Sections 607 and 610 and (C)
the rights, powers, trusts, duties and immunities of the Trustee
hereunder, will survive such discharge.
"U.S. Government Obligations" means securities that 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
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instrumentality of the United States of America the timely payment of
which is unconditionally guaranteed as a full faith and credit
obligation of the United States of America, which, in either case under
clauses (i) or (ii), are not callable or redeemable at the option of
the issuer thereof, and will also include a depository receipt issued
by a bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specified 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 received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such
depository receipt.
ARTICLE V
Remedies
SECTION 501. Events of Default. "Event of Default", wherever
used herein with respect to Securities of any series, means any one of the
following events, unless it is either inapplicable to a particular series or it
is specifically deleted or modified in or pursuant to the supplemental indenture
or Board Resolution establishing such series of Securities or in the form of
Security for such series:
(a) the failure of the Company to pay any installment of
interest on any of the Securities of that series, when and as the same
shall become payable, which failure shall have continued unremedied for
a period of 30 days;
(b) the failure of the Company to pay the principal of (and
premium, if any, on) any of the Securities of that series, when and as
the same shall become payable, whether at Stated Maturity as therein
expressed, by call for redemption, pursuant to any sinking fund, by
declaration as authorized by this Indenture or otherwise;
(c) the failure of the Company to observe and perform any
other of the covenants or agreements on the part of the Company
contained in this Indenture (other then a covenant or agreement
included in this Indenture solely for the benefit of a series of
Securities other than that series), which failure shall have continued
unremedied for a period of 90 days after written notice shall have been
given, by registered or certified mail, to the Company by the Trustee,
or shall have been given to the Company and the Trustee by the Holders
of 25% or more in principal amount of the Securities of that series
then Outstanding, specifying such failure and requiring the Company to
remedy the same and stating that such notice is a "Notice of Default"
hereunder;
(d) the entry of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Company in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State
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bankruptcy, insolvency or other similar law, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of the Company or for any substantial part of its
property, or ordering the winding up or liquidation of its affairs and
the continuance of any such decree or order unstayed and in effect for
a period of 90 consecutive days;
(e) the commencement by the Company of a voluntary case under
the Federal bankruptcy laws, as now constituted or hereafter amended,
or any other applicable Federal or State bankruptcy, insolvency or
other similar law, or the consent by it to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Company or for any
substantial part of its property, or the making by it of any assignment
for the benefit of its creditors, or the admission by the Company in
writing of its inability to pay its debts generally as such debts
become due;
(f) an event of default, as defined in any mortgage, indenture
(including this Indenture), trust agreement or other instrument
securing, evidencing or providing for any Debt of the Company as a
result of which Debt of the Company in excess of $25,000,000 aggregate
principal amount shall be or become due and payable prior to the date
on which the same would otherwise become due and payable (except that
such amount shall be $20,000,000 in respect of a default on Securities
of another series) and such acceleration shall not have been annulled
or rescinded within 30 days of notice of such acceleration to the
Company; provided, however, that, if such event of default with respect
to such other series of Securities or under such indenture or
instrument, as the case may be, shall be remedied or cured by the
Company or waived by the holders of such other series of Securities or
the holders of such indebtedness, as the case may be, pursuant to this
Indenture or such indenture or instrument, as the case may be, then
unless the Maturity of the Securities of such series shall have been
accelerated as provided herein, the Event of Default hereunder by
reason thereof shall be deemed likewise to have been thereupon
remedied, cured or waived without further action upon the part of
either the Trustee or the holders of such series; or
(g) any other Event of Default provided with respect to the
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
of all of the Securities of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified amount) shall
become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has
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been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding Securities of that
series, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities or, in the case of
Original Issue Discount Securities, the Securities' Yield to
Maturity, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if the Company shall fail for
a period of 30 days to pay any installment of interest on the Securities of any
series or shall fail to pay the principal of (and premium, if any, on) any of
the Securities of any series when and as the same shall become due and payable,
whether at Stated Maturity, or by call for redemption, pursuant to any sinking
fund, by declaration as authorized by this Indenture, or otherwise, the Company
will, upon demand of the Trustee, pay to it, for the benefit of the Holders of
such Securities and Coupons, if any, the whole amount then due and payable on
such Securities and Coupons, if any, for principal (and premium, if any) and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any
overdue interest, at the rate or rates prescribed therefor in such Securities
(or, in the case of Original Issue Discount Securities, the Securities' Yield to
Maturity) and Coupons, if any, 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.
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If an Event of Default with respect to Securities and Coupons,
if any, 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 enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities and Coupons, if any, 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 and
Coupons, if any, in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, if any, upon presentation of the Securities 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 607;
SECOND: to the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest, if any, on the
Securities in respect of which or for
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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 for principal (and premium, if any) and
interest, if any, respectively; and
THIRD: the balance, if any, ratably to the Person or Persons
entitled thereto.
SECTION 507. 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) an Event of Default with respect to Securities of such
series shall have occurred and be continuing and such Holder has
previously given written notice to the Trustee of such continuing Event
of Default;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
the right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture (including without limitation the provisions of Section 512)
to affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security or any Coupon shall have the right, which
is absolute and unconditional, to receive payment of the principal of (and
premium, if any, on) and (subject to Section 307) any interest on such Security
or Coupon 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.
SECTION 509. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined
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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 had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 306, 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 511. 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 any acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders. The Holders of not less than
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,
(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders not taking part
in such direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series, or
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(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist with
respect to such series, and any Event of Default with respect to such series
arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 514. Undertaking for Costs. 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, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company.
ARTICLE VI
The Trustee
SECTION 601. Certain Duties and Responsibilities. (a) Except
during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provision of this Indenture are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and 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.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
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(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in principal
amount of the Outstanding Securities of any series, determined as
provided in Sections 101, 104 and 512, relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 602. Notice of Defaults. If a default occurs hereunder
with respect to Securities of any series, the Trustee shall give the Holders of
Securities of such series notice of such default actually known to the Trustee
as and to the extent provided by the Trust Indenture Act; provided, however,
that in the case of any default of the character specified in Section 501(c)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof and if such default is
corrected within such period, the Trustee may conclude, consistent with the
Trust Indenture Act, that notice of such a default need not be provided to such
Holders of Securities. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee. Subject to the
provisions of Section 601:
(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 believed by it to be genuine and to have been signed
or presented by the proper party or parties;
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(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be 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 negligence or 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 reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may, in good faith, deem reasonable in the circumstances, and, if
the Trustee shall determine to make such further inquiry or
investigation, any further evidence which may be requested by the
Trustee pursuant to the provisions of this paragraph shall be furnished
by the Company; and
(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.
SECTION 604. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. 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 605. May Hold Securities. The Trustee, 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
or warrants to purchase Securities and, subject
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to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar or
such other agent.
SECTION 606. Money Held in Trust. Money held by the Trustee or
any Paying Agent in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee or any Paying Agent shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement. The Company
agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (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, damage, claim, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, premium, if any, or
interest, if any, on particular Securities.
SECTION 608. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire any conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall comply with the relevant provisions
thereof.
SECTION 609. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
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SECTION 610. 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 611.
(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 611 shall not have been delivered to the resigning 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.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608
after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee for a series shall cease to be
eligible under Section 609 and shall fail to resign after written
request therefor by the Company or by any Holder of Securities of such
series, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Trustee
for any cause, with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series) and
each successor Trustee or Trustees shall comply with the applicable requirements
of Section 611. 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
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amount of the Outstanding Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 611, 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.
(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 giving notice of such event to all Holders of Securities of such series as
provided by Section 106. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that 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
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resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. 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 into which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate business of
the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities or the Coupons, if any), the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent. The Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue or upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 306, 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 having a
combined capital and surplus of not less than the equivalent of $50,000,000 and
subject
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to supervision or examination by Federal or State authority or the equivalent
foreign authority, in the case of an Authenticating Agent who is not organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia. 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 such Authenticating Agent, shall
continue to be an Authenticating Agent; provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or such Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, 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 for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated and
issued under the within-mentioned Indenture.
[full name of Trustee]
__________________
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As Trustee
By ________________________________
As Authenticating Agent
By ________________________________
Authorized [Officer] [Signatory]
If all of the Securities of a series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
or other place where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 102 and need not
be accompanied by an Opinion of Counsel), shall appoint in accordance with this
Section an Authenticating Agent (which may be an Affiliate of the Company if
eligible to be appointed as an Authenticating Agent hereunder) having an office
in such Place of Payment or other place designated by the Company with respect
to such series of Securities.
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company To Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than January 15 and July 15 in
each year (commencing with the first January 15 or July 15 after the
first issuance of Securities pursuant to this Indenture), a list, in
such form as the Trustee may reasonably require, of all information in
the possession or control of the Company or any Paying Agent as to the
names and addresses of the Holders of each series of Registered
Securities as of the preceding January 1 or July 1, as the case may be,
(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, and
(c) such information concerning the Holders of Bearer
Securities which is known to the Company; provided, however, that the
Company shall have no obligation to investigate any matter relating to
any Holder of a Bearer Security or a Coupon.
SECTION 702. Preservation of Information; Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and
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addresses of Holders contained in the most recent list furnished to the Trustee
as provided in Section 701 and the names and addresses of Holders received by
the Trustee in its capacity as Security Registrar. The Trustee may destroy any
list furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided by the Trust Indenture Act.
(c) Every Holder of Securities or Coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 312 of the Trust
Indenture Act, 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 312(b) of the Trust Indenture
Act.
SECTION 703. Reports by Trustee. (a) On or before July 15 of
each year commencing with the first July 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit to the Holders
of Securities, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, a brief report if required by Section 313(a) of the Trust
Indenture Act, dated as of a date no more than 60 nor less than 45 days prior
thereto. The Trustee also shall comply with Section 313(b) of the Trust
Indenture Act and shall transmit to Holders, in the manner and to the extent
provided is said Section 313(c), such other reports, if any, as may be required
pursuant to the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange 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.
SECTION 704. Reports by Company. The Company shall file with
the Trustee and the Commission, and transmit to Holders, such information,
documents and reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant to
such Act; provided that any such information, documents or reports required to
be filed with the Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission.
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ARTICLE VIII
Consolidation, Merger, Conveyance,
Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms. The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company, unless:
(1) in case the Company shall consolidate with or merge into
another corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the corporation
formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form reasonably satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium,
if any) and interest, if any, on all the Outstanding Securities of all
series and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) if a supplemental indenture is required in connection with
such transaction, the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 802. Successor Corporation Substituted. Upon any
consolidation by the Company with or merger by the Company into any other
corporation or any conveyance, transfer or lease of the properties and assets of
the Company substantially as an entirety in accordance with Section 801, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor corporation had
been named as the Company herein, and thereafter, the predecessor corporation
shall be relieved of the performance and observance of all obligations and
covenants under this Indenture and the Securities (and any Coupons appertaining
thereto), including but not limited to the obligation to make payment of the
principal of (and premium, if any) and interest, if any, on all the Outstanding
Securities of all series (and any Coupons appertaining thereto), and, in the
event of such conveyance, transfer or lease, may be liquidated and dissolved.
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ARTICLE IX
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities;
(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;
(3) to add any additional Events of Default with respect to
all or any series of the Securities (and, if such Event of Default is
applicable to less than all series of Securities specifying the series
to which such Event of Default is applicable);
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance of Securities in bearer form, registrable or not registrable
as to principal, and with or without interest coupons; to change or
eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities
to be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations; provided that any such addition or change
shall not adversely affect the interests of the Holders of Securities
of any series or any related Coupons in any material respect;
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision;
(6) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301;
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or
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facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611(b);
(8) if allowed under applicable laws and regulations, to
permit payment in the United States of principal, premium or interest
on Bearer Securities or Coupons, if any;
(9) to provide for the issuance of uncertificated Securities
of one or more series in addition to or in place of certificated
Securities; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture; provided such other
provisions as may be made shall not adversely affect the interests of
the Holders of Securities of any series in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount
of the Outstanding Securities of all series affected by such supplemental
indenture (acting as one class), by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or 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 any
instalment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date),
(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 certain defaults hereunder and their
consequences provided for in this Indenture,
(3) change any obligation of the Company, with respect to
Outstanding Securities of a series, to maintain an office or agency in
the places and for the purposes specified in Section 1002 for such
series, or
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(4) modify any of the provisions of this Section or Section
513 except to increase any such percentage or to provide with respect
to any particular series the right to condition the effectiveness of
any supplemental indenture as to that series on the consent of the
Holders of a specified percentage of the aggregate principal amount of
Outstanding Securities of such series (which provision may be made
pursuant to Section 301 without the consent of any Holder) 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, or the deletion of this proviso, in accordance
with the requirements of Sections 611(b) and 901(7).
For purposes of this Section 902, if the Securities of any
series are issuable upon the exercise of warrants, each holder of an unexercised
and unexpired warrant with respect to such series shall be deemed to be a Holder
of Outstanding Securities of such series in the amount issuable upon the
exercise of such warrant. For such purposes, the ownership of any such warrant
shall be determined by the Company in a manner consistent with customary
commercial practices. The Trustee for such series shall be entitled to rely on
an Officers' Certificate as to the principal amount of Securities of such series
in respect of which consents shall have been executed by holders of such
warrants.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders 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 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties, immunities or liabilities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
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SECTION 905. Conformity With Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
Covenants
SECTION 1001. Payment of Principal, Premium and Interest. The
Company covenants and agrees for the benefit of each series of Securities and
Coupons, if any, that it will duly and punctually pay the principal of (and
premium, if any, on) each of the Securities and Coupons, if any, of that series,
and the interest, if any, which shall have accrued thereon, in accordance with
the terms of the Securities and Coupons, if any, of such series and this
Indenture.
SECTION 1002. Maintenance of Office or Agency. If Securities
of a series are issuable only as Registered Securities, until all the Securities
of each such series shall have been paid or payment thereof provided for, the
Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, until all the
Securities of each such series shall have been paid or payment thereof provided
for, the Company will maintain (A) in The City of New York, an office or agency
where any Registered Securities of that series may be presented or surrendered
for payment, where any Registered Securities of that series may be surrendered
for registration of transfer, where Securities of that series may be surrendered
for exchange, where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related Coupons may be presented or surrendered
for payment in the circumstances described in this paragraph (and not
otherwise), (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Securities of that series and related Coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Securities of that series pursuant to Section 1004);
provided, however, that if the Securities of that series are listed on The
International Stock Exchange of the United Kingdom and the Republic of Ireland
Limited, the Luxembourg Stock Exchange or any other
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stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located in Europe, an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee and the Holders of the location, and
any change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect of
any series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations and surrenders of Securities of that series may be
made and notices and demands may be made or served at the Corporate Trust Office
of the Trustee, except that Bearer Securities of that series and the related
Coupons may be presented and surrendered for payment (including payment of any
additional amounts payable on Bearer Securities of that series pursuant to
Section 1004) at the London office of the Trustee (or an agent with a London
office appointed by the Trustee and acceptable to the Company), and the Company
hereby appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands. Presentation of Coupons for payment or other
demands for payment of Bearer Securities must be made outside the United States,
and no payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that
payment of principal of and any premium and interest on any Bearer Security
(including any additional amounts payable on Securities of such series pursuant
to Section 1004) shall be made at the office of the Company's Paying Agent in
The City of New York, if (but only if) (i) despite the appointment of Paying
Agents outside the United States, payment of the full amount of such principal,
premium, interest or additional amounts, as the case may be, at the offices of
all such Paying Agents maintained for the purpose by the Company in accordance
with this Indenture is illegal or effectively precluded by exchange controls or
other similar restrictions, (ii) such payment is then permitted by applicable
laws and (iii) in appointing a Paying Agent in The City of New York, the Company
would not suffer any fiscal or other sanction under applicable laws as a result
of such appointment or of any payment being made through such Paying Agent.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee and the Holders of any such designation or rescission and
of any change in the location of any such other office or agency.
SECTION 1003. 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, if any) or interest, if any,
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on any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest, if any, 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, at or prior to the opening of business on
each due date of the principal of (and premium, if any) or interest, if any, on
any Securities of that series, deposit with a Paying Agent a sum sufficient to
pay the principal (and premium, if any) or interest, if any, so becoming due,
such sum to be held as provided by the Trust Indenture Act, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent 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 (i) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
Anything in this Section 1003 to the contrary notwithstanding,
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, if any) or interest, if any, on any Security of any series and
remaining unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security and Coupons, if any, shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, shall at the expense and at the written direction 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 The
City of New York, notice that such money remains unclaimed and that, after a
date specified herein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Additional Amounts. If the Securities of a
series provide for the payment of additional amounts, the Company will pay to
the Holder of any Security of
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such series or any Coupon appertaining thereto additional amounts as provided
and subject to the conditions set forth therein. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of or any
premium or interest on, or in respect of, any Security of any series or payment
of any related Coupon or the net proceeds received on the sale or exchange of
any Security of any series, such mention shall be deemed to include mention of
the payment of additional amounts provided for in this Section to the extent
that, in such context, additional amounts are, were or would be payable in
respect thereof pursuant to the provisions of this Section and express mention
of the payment of additional amounts (if applicable) in any provisions hereof
shall not be construed as excluding additional amounts in those provisions
hereof where such express mention is not made.
If the Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to each date of
payment of principal and any premium or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's Paying Agent
or Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
Coupons who are United States Aliens (as defined in the Securities) without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of that series. If any such withholding shall
be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
Securities or Coupons and the Company will pay to the Trustee or such Paying
Agent the additional amounts required by this Section. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on an Officers' Certificate furnished
pursuant to this Section.
SECTION 1005. Statement as to Compliance. On or before March
31 of each year following the date hereof, the Company shall deliver to the
Trustee a certificate of the principal executive officer, principal financial
officer or principal accounting officer of the Company, stating whether or not
to the best knowledge of such officer the Company is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which such officer may have
knowledge.
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ARTICLE XI
Redemption of Securities
SECTION 1101. Applicability of Article. Securities (including
any Coupons) 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 301 for Securities (including any Coupons)
of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities (including any Coupons) shall
be evidenced by a Board Resolution or by an action taken pursuant to a Board
Resolution. In case of any redemption at the election of the Company of less
than all the Securities (including any Coupons) of any series, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities
(including any Coupons) of such series to be redeemed. In the case of any
redemption of Securities (including any Coupons) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities
(including any Coupons) or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance with
such restriction.
SECTION 1103. Selection by Trustee of Securities to be
Redeemed. If less than all the Securities (including any Coupons) of any series
are to be redeemed, the particular Securities (including any Coupons) to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities (including any Coupons) of such
series not previously called for redemption, by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Securities
(including any Coupons) of that series or any integral multiple thereof) of the
principal amount of Securities (including any Coupons) of such series of a
denomination larger than the minimum authorized denomination for Securities
(including any Coupons) of that series.
In any case where Securities (including any Coupons) of such
series are registered in the same name, the Trustee in its discretion may treat
the aggregate principal amount so registered as if it were represented by one
Security of such series. If the Securities of any series (including any Coupons)
to be redeemed consist of Securities having different Stated Maturities or
different rates of interest (or methods of computing interest), then the Company
may, in the written notice delivered to the Trustee pursuant to Section 1102,
direct that the Securities (including any Coupons) of such series to be redeemed
shall be selected from among groups of such Securities having specified Stated
Maturities or rates of interest (or methods of computing interest) and the
Trustee shall thereafter select the particular Securities (including any
Coupons) to be redeemed in the manner set forth above from among the groups of
such Securities so specified.
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The Trustee shall promptly notify the Company in writing of
the Securities (including any Coupons) selected for redemption and, in the case
of any Securities (including any Coupons) selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
(including any Coupons) shall relate, in the case of any Securities (including
any Coupons) redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities (including any Coupons) which has been or is
to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall
be given not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, as provided in Section 106.
Each such notice of redemption shall specify the Redemption
Date, the Redemption Price, the Place or Places of Payment, that the Securities
of such series are being redeemed at the option of the Company pursuant to
provisions contained in the terms of the Securities of such series or in a
supplemental indenture establishing such series, if such be the case, together
with a brief statement of the facts permitting such redemption, that on the
Redemption Date the Redemption Price will become due and payable upon each
Security redeemed, that payment will be made upon presentation and surrender of
the applicable Securities, that all Coupons, if any, maturing subsequent to the
date fixed for redemption shall be void, that any interest accrued to the
Redemption Date will be paid as specified in said notice, and that on and after
said Redemption Date any interest thereon or on the portions thereof to be
redeemed will cease to accrue. If less than all the Securities of any series are
to be redeemed the notice of redemption shall specify the numbers of the
Securities of such series to be redeemed, and, if only Bearer Securities of any
series are to be redeemed, and if such Bearer Securities may be exchanged for
Registered Securities, the last date on which exchanges of Bearer Securities for
Registered Securities not subject to redemption may be made. In case any
Security of any series is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the Redemption Date, upon surrender of such Security and
any Coupons appertaining thereto, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof and with appropriate
Coupons will be issued, or, in the case of Registered Securities providing
appropriate space for such notation, at the option of the Holders, the Trustee,
in lieu of delivering a new Security or Securities as aforesaid, may make a
notation on such Security of the payment of the redeemed portion thereof.
Notice of redemption of Securities and Coupons, if any, to be
redeemed at the election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price. On or before the
opening of business on any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and
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(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities and Coupons, if any, which are to be redeemed on
that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities shall cease to bear interest and the Coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of Coupons
for such interest, and provided, further, that, unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by Coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those Coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security (or, in the case of any Original Issue Discount
Securities, the Security's Yield to Maturity).
SECTION 1107. Security Redeemed in Part. Any Security
(including any Coupons appertaining thereto) which is to be redeemed only in
part shall be surrendered at a Place of Payment therefor (with, if the Company
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security
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(including any Coupons appertaining thereto) without service charge, a new
Security (including any Coupons appertaining thereto) or Securities (including
any Coupons appertaining thereto) of the same series and Stated Maturity and
like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security (including any Coupons appertaining thereto) so
surrendered.
ARTICLE XII
Sinking Funds
SECTION 1201. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
(including any Coupons) of a series except as otherwise specified as
contemplated by Section 301 for Securities (including any Coupons) of such
series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities (including any Coupons) 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 (including any Coupons)
of any series is herein referred to as an "optional sinking fund payment". If
provided for by the terms of Securities (including any Coupons) of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities (including any Coupons) of any series as provided for
by the terms of Securities (including any Coupons) of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments With
Securities. The Company (1) may deliver Outstanding Securities (including any
Coupons) of a series (other than any previously called for redemption) and (2)
may apply as a credit Securities (including any Coupons) of a series which have
been redeemed (or called for redemption and for which the Redemption Price,
together with accrued interest, if any, has been deposited pursuant to Section
1105), either at the election of the Company pursuant to the terms of such
Securities (including any Coupons) or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities
(including any Coupons), in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Securities (including any Coupons) of
such series required to be made pursuant to the terms of such Securities
(including any Coupons) as provided for by the terms of such series; provided
that such Securities (including any Coupons) have not been previously so
credited. Such Securities (including any Coupons) shall be received and credited
for such purpose by the Trustee at the Redemption Price specified in such
Securities (including any Coupons) for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for any series of
Securities (including any Coupons), the Company will deliver to the Trustee an
Officers' Certificate specifying the amount
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of the next ensuing sinking fund payment for that series pursuant to the terms
of that series, the portion thereof, if any, which is to be satisfied by payment
of cash and the portion thereof, if any, which is to be satisfied by delivering
and crediting Securities (including any Coupons) of that series pursuant to
Section 1202 and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities (including any Coupons) to be so delivered. If such Officers'
Certificate shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Company shall thereupon be obligated
to pay the amount therein specified. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities (including any
Coupons) to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such
Securities (including any Coupons) shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE XIII
Meetings of Holders of Securities
SECTION 1301. Purposes for Which Meetings May Be Called. If
Securities of a series are issuable as Bearer Securities, a meeting of Holders
of Securities of such series may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1302. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 1301, to be held at such time and at such
place in the Borough of Manhattan, The City of New York, or in London, as the
Trustee shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Company, by or pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1301, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or in London, for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
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SECTION 1303. Persons Entitled To Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series, or
(2) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
SECTION 1304. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series. In
the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In any other case the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1302(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Subject to the foregoing, at
the reconvening of any such further adjourned meeting, the Persons entitled to
vote 25% in aggregate principal amount of the Outstanding Securities of such
series shall constitute a quorum for the taking of any action set forth in the
notice of the original meeting. Notice of the reconvening of an adjourned
meeting which was adjourned for lack of a quorum shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, and subject
to the provisions described in the next succeeding paragraph, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the lesser of (i)
the Holders of a majority in principal amount of the Outstanding Securities of
that series and (ii) 66-2/3% in principal amount of Outstanding Securities of
such series represented and voting at such meeting or adjourned meeting;
provided, however, that any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the lesser of (i) the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series and (ii) a
majority in principal amount of Outstanding Securities of such series
represented and voting at such meeting or adjourned meeting. Any resolution
passed or decision taken at any meeting of Holders of Securities of any series
duly held in accordance with this Section shall be binding on all the Holders of
Securities of such series and the related Coupons, whether or not present or
represented at the meeting.
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With respect to any consent, waiver or other action which this
Indenture expressly provides may be given by the Holders of a specified
percentage of Outstanding Securities of all series affected thereby (acting as
one class), only the principal amount of Outstanding Securities of any series
represented at a meeting or adjourned meeting duly reconvened at which a quorum
was present, held in accordance with this Section, and voting in favor of such
action, shall be counted for purposes of calculating the aggregate principal
amount of Outstanding Securities of all series affected thereby favoring such
action.
SECTION 1305. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of a series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holder of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1302(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1302 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
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Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Securities of any series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1302 and, if applicable, Section 1304.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE XIV
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 1401. Immunity of Incorporators, Stockholders,
Officers and Directors. No recourse shall be had for the payment of the
principal of (or premium, if any, on) or interest, if any, on, any Security of
any series (or any Coupon appertaining thereto), or any part thereof, or for any
claim based thereon or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or agreement of this
Indenture, against any incorporator, direct or indirect stockholder, officer or
director, as such, past, present or future, of the Company, or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitutional provision, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that this Indenture and all the Securities
of all series (and any Coupons appertaining thereto) are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be
incurred by, any incorporator, direct or indirect stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, because of the incurring of the indebtedness hereby authorized or
under or by reason of any of the obligations, covenants, promises or agreements
contained in this Indenture or in any of the Securities of any series (or any
Coupons appertaining thereto) or to be implied herefrom or therefrom, and that
all liability, if any, of that character against every such incorporator,
stockholder, officer and director is, by the acceptance of the Securities of any
series (or any Coupons appertaining thereto), and as a condition of, and as part
of the consideration for, the execution of this Indenture and the issue of the
Securities (and any Coupons appertaining thereto), expressly waived and
released.
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ARTICLE XV
Subordination
SECTION 1501. Agreement to Subordinate. Anything to the
contrary herein notwithstanding, the Company covenants and agrees, and each
Holder of Securities of any series (or any Coupons appertaining thereto) by
acceptance thereof likewise covenants and agrees, that the indebtedness
represented by the Securities of such series (and any Coupons appertaining
thereto) and the payment of the principal of (and premium, if any, on) and
interest, if any, on each and all of the Securities of such series (and any
Coupons appertaining thereto) shall be subordinate and junior in right of
payment, to the extent and in the manner hereinafter set forth, to the prior
payment in full of all Senior Debt (as defined below), whether outstanding at
the date hereof or incurred after the date hereof, but shall in all respects
rank pari passu with all other Subordinated Debt (as defined below).
SECTION 1502. No Payments to Holders of Securities in Certain
Circumstances. (a) In the event of any sale under or in accordance with any
judgment or decree rendered in any proceeding by or on behalf of any Holder of
Securities (or any Coupons appertaining thereto) or in the event of any
distribution, division or application, partial or complete, voluntary or
involuntary, by operation of law or otherwise, of all or any part of the assets
of the Company, or the proceeds thereof, to creditors of the Company occurring
by reason of any liquidation, dissolution or winding up of the Company, or in
the event of any receivership, insolvency, bankruptcy, liquidation,
readjustment, reorganization or other similar proceeding relative to the Company
or its debts or properties, then in any such event the holders of any and all
Senior Debt shall be preferred in the payment of their claims over the Holders
of Securities (or any Coupons appertaining thereto), and such Senior Debt shall
be first paid and satisfied in full before any payment or distribution of any
kind or character, whether in cash, property or securities (other than
securities which are subordinate and junior in right of payment to the payment
of all Senior Debt which may at the time be outstanding), shall be made upon the
Securities (or any Coupons appertaining thereto); and in any such event any
dividend or distribution of any kind or character, whether in cash, property or
securities (other than in securities which are subordinate and junior in right
of payment to the payment of all Senior Debt which may at the time be
outstanding) which shall be made upon or in respect of the indebtedness
evidenced by the Securities (or any Coupons appertaining thereto), or any
renewals or extensions thereof, shall be paid over to the holders of such Senior
Debt, pro rata, for application in payment thereof unless and until such Senior
Debt shall have been paid and satisfied in full; and
(b) In the event that pursuant to the provisions hereof any
Security is declared or becomes due and payable before its Stated Maturity
because of an occurrence of an Event of Default (under circumstances when
paragraph (a) of this Section 1502 shall not be applicable), no amount shall be
paid by the Company in respect of the principal of or interest, if any, on the
Securities (or any Coupons appertaining thereto) in excess of current interest
payments as provided herein, except at the Stated Maturity thereof or in
accordance with any regular mandatory prepayments as contemplated by Section 301
for Securities of any series (or any Coupons appertaining thereto) (all subject
to paragraph (a) of this Section 1502), unless and until
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all Senior Debt outstanding at the time such Security so becomes due and payable
because of any such event shall have been paid in full or payment thereof shall
have been provided for in a manner satisfactory to the holders of such
outstanding Senior Debt; and
(c) Without limiting the effect of any of the other provisions
of this Article XV, during the continuance of any default with respect to any
Senior Debt, no payment of principal, sinking fund, interest or premium shall be
made on or with respect to the indebtedness evidenced by the Securities (or any
Coupons appertaining thereto) or any renewals or extensions hereof, if either
(1) notice of such default in writing or by telegram has been given to the
Company by any holder or holders of any Senior Debt, provided that judicial
proceedings shall be commenced with respect to such default within 120 days
thereafter or (2) judicial proceedings shall be pending in respect of such
default.
The Company covenants and agrees, for the benefit of each and
every present and future holder of Senior Debt, that in the event that pursuant
to the provisions hereof any Security is declared or becomes due and payable
because of an occurrence of an Event of Default, then each holder of any Senior
Debt then outstanding shall have the right to declare immediately due and
payable on demand all or any part of such Senior Debt owing and payable to such
holder, regardless of any other maturity or terms of said Senior Debt; and if
and when any such default has occurred, or any notice of default under the terms
hereof may be served upon the Company, then in each such event the Company shall
and hereby agrees that it will immediately notify the holders of the Senior Debt
of such default or notice thereof, as the case may be.
SECTION 1503. Payments by Trustee or Holders of Securities to
Holders of Senior Debt. In the event that any payment by, or distribution of
assets of, the Company of any kind or character, whether in cash, property or
securities, shall be received by the Trustee or the Holders of Securities (or
any Coupons appertaining thereto) before all Senior Debt is paid in full,
contrary to the provisions of Section 1502, such payment or distribution shall
be paid over to the holders of such Senior Debt or their representative or
representatives or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Debt may have been issued, ratably
as aforesaid, for application to the payment of all Senior Debt remaining unpaid
until all such Senior Debt shall have been paid in full, after giving effect to
any concurrent payment or distribution (or provision therefor) to the holders of
such Senior Debt.
SECTION 1504. Subrogation. Subject to the payment in full of
all Senior Debt, the Holders of Securities (and any Coupons appertaining
thereto) shall be subrogated to the rights of the holders of Senior Debt to
receive payments or distributions of cash, property or securities of the Company
applicable to the Senior Debt until all amounts owing on the Securities (and any
Coupons appertaining thereto) shall be paid in full, and, as between the
Company, its creditors other than holders of Senior Debt, and the Holders of
Securities (and any Coupons appertaining thereto), no such payment or
distribution made to the holders of Senior Debt by virtue of this Article XV
which otherwise would have been made to the Holders of Securities (and any
Coupons appertaining thereto) shall be deemed to be a payment by the Company on
account of the Senior Debt, it being understood that the provisions of this
Article XV are and are intended solely for the purpose of defining the relative
rights of the Holders of Securities
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(and any Coupons appertaining thereto), on the one hand, and the holders of
Senior Debt, on the other hand.
SECTION 1505. Obligation of Company Unconditional. Nothing
herein shall impair, as between the Company and the Holders of Securities (and
any Coupons appertaining thereto), the right of the Holder of any Security or
any Coupon, which is absolute and unconditional, to receive payment of the
principal (and premium, if any) and interest, if any, thereon in accordance with
their terms, or shall prevent the Trustee or any Paying Agent from applying any
moneys deposited with it hereunder to the payment of principal of (or premium,
if any) or interest, if any, on any of the Securities (or any Coupons
appertaining thereto), in each case except as otherwise provided in this Article
XV, nor shall anything herein prevent any Holder of Securities (or any Coupons
appertaining thereto) from exercising all remedies otherwise permitted by
applicable law or hereunder upon default hereunder, subject to the rights, if
any, of holders of Senior Debt as herein provided. Each and every holder of
Securities (or any Coupons appertaining thereto) by acceptance thereof shall
undertake and agree for the benefit of each holder of Senior Debt to execute,
verify, deliver and file any proofs of claim, consents, assignments or other
instruments which any holder of Senior Debt may at any time require in order to
prove and realize upon any rights or claims pertaining to the Securities (or any
Coupons appertaining thereto) and to effectuate the full benefit of the
subordination contained in this Article XV.
Upon any payment or distribution of assets of the Company
referred to in this Article XV, the Trustee and the Holders of Securities (or
any Coupons appertaining thereto) shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which any such
dissolution, winding up, liquidation or reorganization proceeding affecting the
affairs of the Company is pending or upon a certificate of the liquidating
trustee or agent or other person making any payment or distribution to the
Trustee or to the Holders of Securities (or any Coupons appertaining thereto)
for the purpose of ascertaining the persons entitled to participate in such
payment or distribution, the holders of the Senior Debt and other indebtedness
of the Company, the amount thereof or payable thereon, the amount paid or
distributed thereon and all other facts pertinent thereto or to this Article XV.
In the event that the Trustee determines, in good faith, that further evidence
is required with respect to the right of any person as a holder of Senior Debt
to participate in any payment or distribution pursuant to this Article XV, the
Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such person,
as to the extent to which such person is entitled to participate in such payment
or distribution, and as to other facts pertinent to the rights of such person
under this Article XV, and if such evidence is not furnished, the Trustee may
defer any payment to such person pending judicial determination as to the right
of such person to receive such payment.
SECTION 1506. Payments on Securities Permitted. Nothing
contained in this Article XV or elsewhere in this Indenture, or in any of the
Securities (or any Coupons appertaining thereto), shall (a) affect the
obligation of the Company to make, or prevent the Company from making, at any
time except in the event of any event specified in Section 1502, payments at any
time of principal of (or premium, if any) or interest, if any, on the Securities
of any series (or any Coupons appertaining thereto) or of any sinking fund
payments with respect to the Securities of any series, or (b) prevent the
application by the Trustee or any Paying Agent
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of any moneys held by the Trustee or such Paying Agent in trust for the benefit
of the holders of Securities of any series (and any Coupons appertaining
thereto) as to which notice of redemption shall have been mailed or published at
least once prior to the happening of an event specified in paragraph (b) or (c)
of Section 1502 to the payment of or on account of the principal of (and
premium, if any on) and interest, if any, on such Securities (and any Coupons
appertaining thereto), or (c) prevent the application by the Trustee or any
Paying Agent of any moneys deposited prior to the happening of any event
specified in paragraph (b) or (c) of Section 1502 with the Trustee or such
Paying Agent in trust for the purpose of paying a specified installment or
installments of interest on the Securities of any series (or any Coupons
appertaining thereto), to the payment of such installments of interest on the
Securities of any series (or any Coupons appertaining thereto).
SECTION 1507. Effectuation of Subordination by Trustee. Each
holder of Securities (or any Coupons appertaining thereto), by his acceptance
thereof, authorizes and directs the Trustee in his behalf to take such action as
may be necessary or appropriate to effectuate the subordination provided in this
Article XV and appoints the Trustee his attorney-in-fact for any and all such
purposes.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt and, with respect to the holders of Senior Debt, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XV, and no implied
covenants or obligations with respect to the holders of Senior Debt shall be
read into this Indenture against the Trustee. Subject to the provisions of
Section 601, the Trustee shall not be liable to any holder of Senior Debt if it
shall mistakenly pay over or deliver to holders of Securities (or any Coupons
appertaining thereto), the Company or any other person moneys or assets to which
any holder of Senior Debt shall be entitled by virtue of this Article XV or
otherwise.
SECTION 1508. Knowledge of Trustee. Notwithstanding the
provisions of this Article XV or any other provisions of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment of moneys to or by the Trustee, or the
taking of any other action by the Trustee, unless and until the Trustee shall
have received written notice thereof from the Company, any Holder, any Paying
Agent or the holder or representative of any class of Senior Debt.
Prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 601, shall be entitled in all respects to
assume that no such facts exist; provided, that if on a date not less than one
day prior to the date upon which by the terms hereof any such moneys may become
payable for any purpose (including, without limitation, the payment of the
principal of or interest, if any, on any Securities (or any Coupons appertaining
thereto)), the Trustee shall not have received with respect to such moneys the
notice provided for in this Section 1508, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such moneys and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such prior date.
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SECTION 1509. Trustee May Hold Senior Debt. The Trustee shall
be entitled to all the rights set forth in this Article XV with respect to any
Senior Debt at the time held by it, to the same extent as any other holder of
Senior Debt, and nothing in Section 613 or elsewhere in this Indenture shall
deprive the Trustee of any of its rights as such holder.
SECTION 1510. Rights of Holders of Senior Debt Not Impaired.
No right of any present or future holder of any Senior Debt to enforce the
subordination herein shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or by any non-compliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
SECTION 1511. Rights and Obligations Subject to Power of
Court. The right of the holders of Senior Debt and the obligations of the
Trustee and the Holders of Securities (and any Coupons appertaining thereto) set
forth in this Article XV are subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred
in this Indenture upon the Senior Debt and the holders thereof with respect to
the Securities (and any Coupons appertaining thereto) and the holders thereof by
a plan of reorganization under applicable bankruptcy law.
SECTION 1512. Definitions. The following terms shall have the
following meanings:
"Senior Debt" means all Debt of the Company except
Subordinated Debt.
"Subordinated Debt" means the Company's 8.875% Senior
Subordinated Notes Due 1998, the Company's 7 1/2% Senior Subordinated
Notes Due 1999 and any other Debt which is subordinate and junior in
right of payment to any other Debt of the Company by the terms of the
instrument creating or evidencing such Subordinated Debt.
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EXHIBIT A
[FORMS OF CERTIFICATION]
[FORM OF CERTIFICATE TO BE GIVEN BY PERSON
ENTITLED TO RECEIVE BEARER SECURITY OR TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE]
EXHIBIT A.1.
ARISTAR, INC.
[Insert title or sufficient description
of Securities to be delivered]
(the "Securities")
This is to certify that, as of the date hereof, and except as
set forth below, the above-referenced Securities held by you for our account are
owned by (i) (a) persons that are not individual citizens or residents of the
United States, (b) a corporation or partnership organized in or under the laws
of the United States or any state thereof or the District of Columbia, (c) an
estate or trust the income of which is subject to United States federal income
taxation regardless of its source or (d) a trust the administration of which is
subject to the primary supervision of a court within the United States and for
which one or more United States fiduciaries have the authority to control all
substantial decisions ("United States persons"), (ii) United States persons that
(a) are foreign branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own accounts or for resale or (b) acquired the Securities
through foreign branches of United States financial institutions and that hold
the Securities through such United States financial institutions on the date
hereof (and in the case of either (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise the issuer or the issuer's agent that it will comply with the
requirements of Section
79
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) financial institutions for
purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in addition, if we are a
financial institution described in this clause (iii) (whether or not also
described in clause (i) or (ii)), we certify that we have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions, the Commonwealth of Puerto Rico, and other areas subject to its
jurisdiction.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date and,
in the absence of any such notification, it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to
$________________ principal amount of such Securities, in respect of which we
are not able to certify as above and as to which we understand exchange and
delivery of definitive Securities (or, if relevant, exercise of any rights or
collection of any interest) cannot be made until we do so certify.
We understand that this certification is required in
connection with certain tax laws of the United States. In connection therewith,
if administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
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Dated:_________________________
[To be dated no earlier
than 15 days prior to the
Exchange Date or the first
interest payment date
prior to the Exchange
Date, as relevant]
By: ___________________________
As, or as agent for, the
beneficial owner(s) of the
Securities to which this
certificate relates.
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EXHIBIT A.2
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR OR CEDEL, S.A. IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL
SECURITY OR TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE]
ARISTAR, INC.
[Insert title or sufficient description of Securities to be delivered]
(the "Securities")
This is to certify that, based solely on certifications we
have received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount set forth below (our "Member Organizations"),
substantially as set forth in the Temporary Global Security with respect to the
Securities, as of the date hereof, $___________ principal amount of the
above-captioned Securities is owned by (i) (a) persons that are not individual
citizens or residents of the United States, (b) a corporation or partnership
organized in or under the laws of the United States or any state thereof or the
District of Columbia, (c) an estate or trust the income of which is subject to
United States federal income taxation regardless of its source or (d) a trust
the administration of which is subject to the primary supervision of a court
within the United States and for which one or more United States fiduciaries
have the authority to control all substantial decisions ("United States
persons"), (ii) United States persons that (a) are foreign branches of United
States financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own accounts
or for resale or (b) acquired the Securities through foreign branches of United
States financial institutions and that hold the Securities through such United
States financial institutions on the date hereof (and in the case of either (a)
or (b), each such United States financial institution has agreed, on its own
behalf
82
or through its agent, that we may advise the issuer or the issuer's agent that
it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) financial institutions for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)), which financial institutions described in this clause (iii)
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions, the Commonwealth of Puerto Rico and other areas subject to its
jurisdiction.
We further certify (i) that we are not making available
herewith for exchange (or, if relevant, exercise of any rights or collection of
any interest) any portion of the Temporary Global Security excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange (or, if relevant, exercise of any rights or
collection of any interest) are no longer true and cannot be relied upon as the
date hereof.
We understand that this certification is required in
connection with certain tax laws of the United States. In connection therewith,
if administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we
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irrevocably authorize you to produce this certification to any interested party
in such proceedings.
*Dated: , 199 Yours faithfully,
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
Brussels office as operator
of the Euro-clear System
or
XXXXX, X.X.
By:
---------------------------
* [Not earlier than the Exchange
Date or the first interest
payment date prior to the
Exchange Date, as relevant.]
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