GENERAL MOTORS NOVA SCOTIA FINANCE COMPANY
as Issuer,
GENERAL MOTORS CORPORATION,
as Guarantor,
and
CITIBANK, N.A.,
as Trustee
INDENTURE
Dated as of [ ], 2001
Debt Securities
TABLE OF CONTENTS*
----------------------
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions.....................................................2
SECTION 1.02. Notice to Securityholders.......................................9
ARTICLE 2
ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
SECTION 2.01. Amount Unlimited; Issuable in Series............................9
SECTION 2.02. Form of Trustee's Certificate of Authentication................12
SECTION 2.03. Form, Execution, Authentication, Delivery and Dating of
Securities....................................................13
SECTION 2.04. Denominations; Record Date.....................................15
SECTION 2.05. Exchange and Registration of Transfer of Securities............16
SECTION 2.06. Temporary Securities...........................................18
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Securities................19
SECTION 2.08. Cancellation..................................................20
SECTION 2.09. Computation of Interest........................................20
SECTION 2.10. Securities in Global Form......................................20
SECTION 2.11. Medium-term Securities.........................................21
ARTICLE 3
GUARANTEE OF SECURITIES
SECTION 3.01. Unconditional Guarantee........................................22
SECTION 3.02. Execution of Guarantees........................................23
ARTICLE 4
REDEMPTION OF SECURITIES
SECTION 4.01. Redemption of Securities; Applicability of Article.............24
SECTION 4.02. Notice of Redemption; Selection of Securities..................24
SECTION 4.03. Payment of Securities Called for Redemption....................25
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* The Table of Contents is not part of the Indenture.
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PAGE
ARTICLE 5
PARTICULAR COVENANTS OF THE ISSUER AND THE GUARANTOR
SECTION 5.01. Payment of Principal, Premium, Interest and Additional
Amounts.......................................................26
SECTION 5.02. Offices for Notices and Payments, Etc..........................27
SECTION 5.03. Provisions as to Paying Agent..................................28
SECTION 5.04. Luxembourg Publications........................................29
SECTION 5.05. Statement by Officers as to Default............................29
SECTION 5.06. Statement by Officers as to Default............................29
SECTION 5.07. Limitations on Liens...........................................30
SECTION 5.08. Limitation on Sale and Lease-back..............................31
SECTION 5.09. Definitions Applicable to Sections and .......................32
ARTICLE 6
SECURITYHOLDER LISTS AND REPORTS
BY THE ISSUER AND THE TRUSTEE
SECTION 6.01. Securityholder Lists...........................................33
SECTION 6.02. Preservation and Disclosure of Lists...........................34
SECTION 6.03. Reports by the Issuer and the Guarantor........................35
SECTION 6.04. Reports by the Trustee.........................................36
ARTICLE 7
REMEDIES ON DEFAULT
SECTION 7.01. Events of Default..............................................37
SECTION 7.02. Payment of Securities on Default; Suit Therefor................39
SECTION 7.03. Application of Moneys Collected by Trustee.....................41
SECTION 7.04. Proceedings by Securityholders.................................42
SECTION 7.05. Remedies Cumulative and Continuing.............................43
SECTION 7.06. Direction of Proceedings.......................................44
SECTION 7.07. Notice of Defaults.............................................44
SECTION 7.08. Undertaking to Pay Costs.......................................45
ARTICLE 8
CONCERNING THE TRUSTEE
SECTION 8.01. Duties and Responsibilities of Trustee.........................46
SECTION 8.02. Reliance on Documents, Opinions, Etc...........................47
SECTION 8.03. No Responsibility for Recitals, Etc............................48
SECTION 8.04. Ownership of Securities or Coupons.............................48
SECTION 8.05. Moneys to Be Held in Trust.....................................48
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PAGE
SECTION 8.06. Compensation and Expenses of Trustee...........................49
SECTION 8.07. Officers' Certificate as Evidence..............................49
SECTION 8.08. Conflicting Interest of Trustee................................50
SECTION 8.09. Eligibility of Trustee.........................................50
SECTION 8.10. Resignation or Removal of Trustee..............................50
SECTION 8.11. Acceptance by Successor Trustee................................52
SECTION 8.12. Successor by Merger, Etc.......................................53
SECTION 8.13. Limitations on Rights of Trustee as Creditor...................53
ARTICLE 9
CONCERNING THE SECURITYHOLDERS
SECTION 9.01. Action by Securityholders......................................54
SECTION 9.02. Proof of Execution by Securityholders..........................54
SECTION 9.03. Who Are Deemed Absolute Owners.................................55
SECTION 9.04. Corporation or Guarantor Owned Securities Disregarded..........55
SECTION 9.05. Revocation of Consents; Future Securityholders Bound...........56
SECTION 9.06. Securities in a Foreign Currency...............................56
ARTICLE 10
SECURITYHOLDERS' MEETINGS
SECTION 10.01. Purposes of Meetings.........................................57
SECTION 10.02. Call of Meetings by Trustee..................................57
SECTION 10.03. Call of Meetings by Issuer, Guarantor or Securityholders.....58
SECTION 10.04. Qualification for Voting.....................................59
SECTION 10.05. Regulations..................................................59
SECTION 10.06. Voting.......................................................59
ARTICLE 11
SUPPLEMENTAL INDENTURES
SECTION 11.01. Supplemental Indentures Without Consent of
Securityholders..............................................60
SECTION 11.02. Supplemental Indentures with Consent of Securityholders.......62
SECTION 11.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures......................................63
SECTION 11.04. Notation on Securities........................................64
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PAGE
ARTICLE 12
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 12.01. Issuer May Consolidate, Etc., on Certain Terms................64
SECTION 12.02. Successor Corporation Substituted.............................65
SECTION 12.03. Merger, Consolidation or Sale of Assets by the
Guarantor....................................................66
SECTION 12.04. Successor Corporation to the Guarantor........................66
SECTION 12.05. Opinion of Counsel to Be Given Trustee........................66
ARTICLE 13
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 13.01. Discharge of Indenture .......................................67
SECTION 13.02. Satisfaction, Discharge and Defeasance of Securities of
Any Series...................................................67
SECTION 13.03. Deposited Moneys to Be Held in Trust by Trustee...............69
SECTION 13.04. Paying Agent to Repay Moneys Held.............................69
SECTION 13.05. Return of Unclaimed Moneys....................................70
ARTICLE 14
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
SECTION 14.01. Indenture and Securities Solely Corporate Obligations.........70
ARTICLE 15
MISCELLANEOUS PROVISIONS
SECTION 15.01. Benefits of Indenture Restricted to Parties and
Securityholders..............................................71
SECTION 15.02. Provisions Binding on Issuer and Guarantor's
Successors...................................................71
SECTION 15.03. Addresses for Notices, Etc....................................71
SECTION 15.04. Evidence of Compliance with Conditions Precedent..............71
SECTION 15.05. Legal Holidays................................................72
SECTION 15.06. Trust Indenture Act to Control................................72
SECTION 15.07. Execution in Counterparts.....................................72
SECTION 15.08. New York Contract.............................................72
SECTION 15.09. Submission to Jurisdiction; Service of Process................73
SECTION 15.10. Judgment Currency.............................................73
SECTION 15.11. Severability of Provisions....................................74
SECTION 15.12. Issuer and Guarantor Released from Indenture
Requirements under Certain Circumstances.....................74
iv
THIS INDENTURE, dated as of the day of [ ], 2001
among GENERAL MOTORS NOVA SCOTIA FINANCE COMPANY, an unlimited liability
company duly organized and existing under the laws of Nova Scotia (the
"Issuer"), GENERAL MOTORS CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (the "Guarantor") and
Citibank, N.A., a banking association duly incorporated and existing under the
laws of the United States of America, as trustee hereunder (the "Trustee,"
which term shall include any successor trustee appointed pursuant to Article
Eight).
WITNESSETH:
WHEREAS, the Issuer deems it necessary to issue from time to time for
its lawful purposes securities (hereinafter called the "Securities" or, in the
singular, "Security") evidencing its unsecured indebtedness and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of the Securities in one or more series, unlimited as to principal
amount, to bear such rates of interest, to mature at such time or times and to
have such other provisions as shall be fixed as hereinafter provided; and
WHEREAS, the Guarantor desires to make the Guarantees (as herein
defined) as provided herein and has duly authorized the execution and delivery
of this Indenture; and
WHEREAS, all acts and things necessary to constitute these presents a
valid indenture and agreement according to its terms, have been done and
performed, and the execution of this Indenture has in all respects been duly
authorized;
NOW, THEREFORE:
In order to declare the terms and conditions upon which the Securities
are authenticated, issued and received, and in consideration of the premises,
of the purchase and acceptance of the Securities by the Holders thereof and of
the sum of one dollar to it duly paid by the Trustee at the execution of these
presents, the receipt whereof is hereby acknowledged, the Issuer and the
Guarantor covenant and agree with the Trustee, for the equal and proportionate
benefit of the respective Holders from time to time of the Securities, as
follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The terms defined in this Section (except
as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture which are defined in the Trust Indenture Act of
1939 or which are by reference therein defined in the Securities Act of 1933,
as amended, shall have the meanings (except as herein otherwise expressly
provided or unless the context otherwise clearly requires) assigned to such
terms in said Trust Indenture Act and in said Securities Act as in force at the
date of this Indenture as originally executed. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a
whole, including the Exhibits to this instrument, and not to any particular
article, Section or other subdivision. Certain terms used wholly or principally
within an Article of this Indenture may be defined in that Article.
ADDITIONAL AMOUNTS:
The term "Additional Amounts" shall mean any Additional Amounts which
are required by a Security or by or pursuant to a Board Resolution under
circumstances specified therein, to be paid by the Issuer or Guarantor in
respect of certain taxes, assessments or governmental charges imposed on
certain Holders of Securities and which are owing to such Holders of
Securities.
AUTHORIZED NEWSPAPER:
The term "Authorized Newspaper" shall mean a newspaper in an official
language of the country of publication of general circulation in the place in
connection with which the term is used. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof which
is made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
BOARD OF DIRECTORS:
The term "Board of Directors" shall mean the Board of Directors of the
Issuer or the Guarantor or the Finance Committee of the Issuer or the Guarantor
or any committee established by the Board of Directors or Finance Committee of
the Issuer or Guarantor.
2
BOARD RESOLUTION:
The term "Board Resolution" shall mean a resolution certified by the
Secretary or Assistant Secretary of the Issuer or the Guarantor 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:
The term "Business Day" shall mean, with respect to any Security, a
day (other than a Saturday or Sunday) that in the city (or in any of the
cities, if more than one) in which amounts are payable as specified on the face
of the form of such Security, is neither a legal holiday nor a day on which
banking institutions are authorized or required by law, regulation or executive
order to close.
CORPORATE TRUST OFFICE:
The term "Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business shall be administered.
COUPON:
The term "Coupon" shall mean any interest coupon appertaining to a
Security.
COUPON SECURITY:
The term "Coupon Security" shall mean any Security authenticated and
delivered with one or more Coupons appertaining thereto.
DEPOSITORY:
The term "Depository" shall mean, 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 Depository by the Issuer pursuant
to Section 2.01 until a successor Depository shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Depository" shall
mean or include each Person who is then a Depository hereunder, and if at any
time there is more than one such Person, "Depository" as used with respect to
the Securities of any such series shall mean the Depository with respect to the
Securities of that series.
3
EVENT OF DEFAULT:
The term "Event of Default" shall mean any event specified as such in
Section 7.01.
GLOBAL SECURITY:
The term "Global Security" shall mean a Registered Security or an
Unregistered Security evidencing all or part of a series of Securities issued
to the Depository for such series in accordance with Section 2.03.
GUARANTEES:
The term "Guarantee" means the guarantees of the Guarantor to be
endorsed on the Securities authenticated and delivered hereunder.
GUARANTOR:
The term "Guarantor" shall mean the person named as the "Guarantor" in
the first paragraph of this instrument until a successor corporation to such
Guarantor shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Guarantor" shall mean such successor corporation.
HOLDER:
The terms "Holder," "Holder of Securities," "Securityholder" or other
similar terms, shall mean (a) in the case of any Registered Security, the
person in whose name at the time such Security is registered on the
registration books kept for that purpose in accordance with the terms hereof,
and (b) in the case of any Unregistered Security, the bearer of such Security.
INDENTURE:
The term "Indenture" shall mean 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.
INTEREST PAYMENT DATE:
The term "Interest Payment Date" when used with respect to any
Security, means the stated maturity of an installment of interest on such
Security.
4
ISSUE DATE:
The term "Issue Date" shall mean, with respect to Securities of any
tranche, whether evidenced by a Registered Security or an Unregistered
Security, the date such Securities are authenticated pursuant to Section 2.03.
ISSUER:
The term "Issuer" shall mean the person named as the "Issuer" 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 "Issuer" shall mean such successor corporation.
ISSUER ORDER:
The term "Issuer Order" shall mean any request, order or confirmation
signed by a person designated pursuant to Section 2.03 to the Trustee, which
may be transmitted by telex, by telecopy or in writing.
MATURITY DATE:
The term "Maturity Date" when used with respect to any Security, shall
mean the stated maturity of the Security.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate" shall mean a certificate signed by
the Chairman of the Board of Directors or the President or any Executive Vice
President or any Senior Vice President or any Vice President or the Treasurer
and by the Secretary or any Assistant Secretary or, if the other signatory is
other than the Treasurer, any Assistant Treasurer of the Issuer or the
Guarantor, as the case may be.
OPINION OF COUNSEL:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel, who may be an employee of or counsel to the Issuer or the
Guarantor, or who may be other counsel acceptable to the Trustee.
5
ORIGINAL ISSUE DISCOUNT SECURITIES:
The term "Original Issue Discount Securities" shall mean any
Securities which are initially sold at a discount from the principal amount
thereof and which provide upon Event of Default for declaration of an amount
less than the principal amount thereof to be due and payable upon acceleration
thereof.
OUTSTANDING:
The term "outstanding" when used with reference to Securities, shall,
subject to the provisions of Section 8.08 and Section 9.04, mean, as of any
particular time, all Securities authenticated and delivered by the Trustee
under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Issuer or the Guarantor)
or shall have been set aside and segregated in trust by the Issuer or the
Guarantor (if the Issuer or Guarantor shall act as Paying Agent), provided,
that if such Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as in Article Four provided, or
provisions satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Securities in lieu of and in substitution for which other
Securities shall have been authenticated and delivered pursuant to the terms of
Article Two, unless proof satisfactory to the Trustee is presented that any
such Securities are held by bona fide Holders in due course.
PAYING AGENT:
The term "Paying Agent" shall mean initially Citibank, N.A., and
subsequently, any other paying agent appointed by the Issuer from time to time
in respect of the Securities.
PERSON:
The term "person" shall mean any individual, corporation, company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
6
PLACE OF PAYMENT:
The term "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, (and Additional Amounts, if any) on the
Securities of that series are payable.
REGISTERED SECURITY:
The term "Registered Security" shall mean any Security registered on
the Security registration books of the Issuer.
REGULAR RECORD DATE:
The term "Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the date specified
for that purpose as contemplated by Sections 2.01 and 2.04.
RESPONSIBLE OFFICER:
The term "responsible officer" when used with respect to the Trustee
shall mean any officer assigned by the Trustee to administer its corporate
trust matters.
SECURITY REGISTER AND SECURITY REGISTRAR:
The term "Security Register" and "Security Registrar" shall have the
respective meanings specified in Section 2.05.
TRUST INDENTURE ACT OF 1939:
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture
Act of 1939, as amended.
UNITED STATES:
The term "United States" shall mean the United States of America
(including the States and the District of Columbia) and its possessions
(including the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands).
7
UNREGISTERED SECURITY:
The term "Unregistered Security" shall mean any Security other than a
Registered Security.
U.S. DOLLAR:
The term "U.S. Dollar" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States of America as at the time shall
be legal tender for the payment of public and private debts.
SECTION 1.02. Notice to Securityholders. Except as otherwise expressly
provided herein or in the provisions of any Security, where this Indenture
provides for notice to Holders of Securities of any event, such notice shall be
sufficiently given if in writing and mailed, first class, postage prepaid, to
each Holder at such Holder's address as it appears in the Securities Register,
not later than the latest date, and not earlier than the earliest date
prescribed for such notice.
Neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Security shall affect the sufficiency
of such notice with respect to other Holders of Securities.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
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.
ARTICLE 2
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
8
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution of the Issuer and of the
Guarantor, as the case may be, and set forth in an Officers' Certificate of the
Issuer and of the Guarantor, as the case may be, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series:
(a) the designation of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(b) 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 2.05, 2.06, 2.07, 4.02 or 11.04);
(c) the date or dates on which the principal of the Securities of the
series is payable;
(d) the rate or rates, which may be fixed or variable, at which the
Securities of the series shall bear interest, if any, and if the rate or rates
are variable, the manner of calculation thereof, the date or dates from which
such interest shall accrue, the Interest Payment Dates on which such interest
shall be payable and, in the case of Registered Securities, the Regular Record
Date for the determination of Holders of such Securities to whom interest is
payable on any Interest Payment Date;
(e) the place or places (in addition to such place or places specified
in this Indenture) where the principal of (and premium, if any), interest, if
any, and Additional Amounts, if any, on Securities of the series shall be
payable;
(f) the right, if any, of the Issuer to redeem Securities, in whole or
in part, at its option and the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of the
series may be redeemed pursuant to any sinking fund or otherwise;
(g) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption, 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, purchased or repaid, in
whole or in part, pursuant to such obligation;
9
(h) if other than U.S. Dollars, the currency or currencies, or units
based on or related to foreign currencies, including the Euro, in which the
Securities of the series shall be denominated and in which payments of
principal of (premium, if any), interest, if any, on and any other amounts
payable with respect to such Securities shall or may be payable; or in the
manner in which such currency, currencies or composite currencies will be
determined; and if the principal of (and premium, if any) and interest, if any,
on the Securities of such series are to be payable, at the election of the
Issuer or a holder thereof, in a currency or currencies, including composite
currencies, other than that or those in which the Securities are stated to be
payable, the currency or currencies in which payment of the principal of (and
premium, if any) and interest, if any, on Securities of such series as to which
such election is made shall be payable, and the periods within which and the
terms and conditions upon which such election is to be made;
(i) if the amount of principal of and interest on the Securities of
the series may be determined with reference to an index based on a currency or
currencies other than that in which the Securities of the series are
denominated, the manner in which such amounts shall be determined;
(j) the denominations in which Securities of the series shall be
issuable, if other than U.S.$l,000 or integral multiples thereof with respect
to Registered Securities and denominations of U.S.$1,000 and U.S.$5,000 for
Unregistered Securities;
(k) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof or which the Trustee shall
be entitled to claim pursuant to Section 7.02;
(l) whether the Securities of the series will be issuable as
Registered Securities or Unregistered Securities (with or without Coupons), or
both, any restrictions applicable to the offer, sale or delivery of
Unregistered Securities and, if other than as provided for in Section 2.05, the
terms upon which Unregistered Securities of the series may be exchanged for
Registered Securities of such series and vice versa; and 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 Depository for such Global Security or
Securities and whether any Global Securities of the series are to be issuable
initially in temporary form and whether any Global Securities of the series are
to be issuable in definitive 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
10
circumstances under which and the place or places where any such exchanges may
occur, if other than in the manner provided in Section 2.05;
(m) whether and under what circumstances and to which Holders the
Issuer will pay Additional Amounts on the Securities of the series in respect
of any tax, assessment or governmental charge withheld or deducted and, if so,
whether the Issuer will have the option to redeem such Securities in the event
it becomes obligated to pay such Additional Amounts;
(n) the provisions, if any, for the defeasance of the Securities of
the series;
(o) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
(p) any trustees, depositaries, authenticating or paying agents,
transfer agents, registrars or any other agents with respect to the Security of
such series;
(q) the Guarantees of the Securities of such series pursuant to
Article Three hereof; and
(r) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except (i) as to denomination, (ii) that Securities of any series may be
issuable as either Registered Securities or Unregistered Securities and (iii)
as may otherwise be provided in or pursuant to such Board Resolution and set
forth in such Officers' Certificate or in any such indenture supplemental
hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or any Assistant Secretary of the Issuer or
the Guarantor, as the case may be, and delivered to the Trustee at the same
time as or prior to the delivery of the Officers' Certificate setting forth the
terms of the series.
SECTION 2.02. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in the following form:
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
11
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
CITIBANK, N.A.,
as Trustee,
By:___________________
Authorized Signatory
SECTION 2.03. Form, Execution, Authentication, Delivery and Dating of
Securities. The Securities of each series and the Coupons, if any, to be
attached thereto, shall be in the forms approved from time to time by or
pursuant to a Board Resolution, or established in one or more indentures
supplemental hereto, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Issuer may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be required
to comply with any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on which the Securities may
be listed, or to conform to usage.
Each Security and Coupon shall be executed on behalf of the Issuer by
its [Chairman of the Board of Directors or any Vice Chairman of the Board of
Directors or its President or any Executive Vice President or any Senior Vice
President or any Vice President and by its Treasurer or any Assistant Treasurer
or its Secretary or any Assistant Secretary], under its Corporate seal. Such
signatures may be the manual or facsimile signatures of the present or any
future such officers. The seal of the Issuer may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities.
Each Security and Coupon bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Security, or
the Security to which such Coupon appertains. At any time and from time to time
after the execution and delivery of this Indenture, the Issuer may deliver
Securities of any series executed by the Issuer and, having endorsed thereon
the Guarantees executed by the Guarantor and, in the case of Coupon Securities,
having attached thereto appropriate Coupons, to the Trustee for authentication,
together with an Issuer Order for the authentication and delivery of such
Securities, and the Trustee in accordance with such Issuer Order shall
authenticate and deliver such Securities. If the form or terms of the
Securities or Coupons of the series have been established in or pursuant to one
or more Board Resolutions as permitted by
12
this Section and Section 2.01, in authenticating such Securities, and accepting
the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
8.01) shall be fully protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities, Guarantees or Coupons has been
established by or pursuant to Board Resolution as permitted by Section 2.01,
that such form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities and Guarantees have been
established by or pursuant to Board Resolution as permitted by Section 2.01,
that such terms have been established in conformity with the provisions of this
Indenture; and
(c) that each such Security and Coupon, when authenticated and
delivered by the Trustee and issued by the Issuer in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Issuer, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles; and that when the
Guarantees endorsed on the Securities have been executed by the Guarantor and
the Securities have been authenticated by the Trustee and issued by the Issuer,
the Guarantees will constitute valid and legally binding obligations of the
Guarantor, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general applicability
relating to or affecting the enforcement of creditors' rights and to general
equity principles. If such form or terms has been so established, the Trustee
shall not be required to authenticate such Securities or Guarantees if the
issue of such Securities or Guarantees pursuant to this Indenture will affect
the Trustee's own rights, duties or immunities under the Securities and the
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Every Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided in or
pursuant to the Board Resolution or supplemental indenture referred to in
Section 2.01 or, if no such terms are specified, the date of its original
issuance.
No Security 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
13
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. No Guarantee shall be or become valid or obligatory for any purpose
until such certificate by the Trustee shall have been duly executed in the
Security on which such Guarantee is endorsed. Notwithstanding the foregoing, if
any Security shall have been duly authenticated and delivered hereunder but
never issued and sold by the Issuer, and the Issuer shall deliver such Security
to the Trustee for cancellation as provided in Section 2.08 together with a
written statement (which need not comply with Section 15.04 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Issuer, 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 Issuer shall establish pursuant to Section 2.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Issuer shall execute and the Trustee shall
in accordance with this Section and the Issuer Order with respect to such
series authenticate and deliver the Global Security or Securities 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 or Securities, (ii) shall be registered, if
in registered form, in the name of the Depository for such Global Security or
Securities or the nominee of such Depository, and (iii) shall be delivered by
the Trustee to such Depository or pursuant to such Depository's instructions.
Each Depository designated pursuant to Section 2.01 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depository, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or regulation.
The Guarantees to be endorsed on the Securities of each series shall
be in substantially the form set forth in Section 3.01, or as shall be
established by or pursuant to one or more Board Resolutions of the Guarantor
(as set forth in a Board Resolution or, to the extent established pursuant to
rather than set forth in a Board Resolution, an Officers' Certificate of the
Guarantor detailing such establishment) 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 any law or with any rules made pursuant thereto or with any rules of any
securities exchange or to conform to general usage or as may, consistently
herewith, be determined by the officers executing such Guarantees, as evidenced
by their execution of such Guarantees.
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SECTION 2.04. Denominations; Record Date. The Securities shall be
issuable as Registered Securities or Unregistered Securities in such
denominations as may be specified as contemplated in Section 2.01. In the
absence of any such specification with respect to any series, such Securities
shall be issuable in the denominations contemplated by Section 2.01.
The term "record date" as used with respect to an Interest Payment
Date (except a date for payment of defaulted interest) shall mean such day or
days as shall be specified in the terms of the Registered Securities of any
particular series as contemplated by Section 2.01; provided, however, that in
the absence of any such provisions with respect to any series, such term shall
mean the fifteenth day next preceding such Interest Payment Date.
The person in whose name any Registered Security is registered at the
close of business on the Regular Record Date with respect to an Interest
Payment Date shall be entitled to receive the interest payable and Additional
Amounts, if any, payable on such Interest Payment Date notwithstanding the
cancellation of such Registered Security upon any transfer or exchange thereof
subsequent to such Regular Record Date and prior to such Interest Payment Date;
provided, however, that if and to the extent the Issuer and the Guarantor shall
default in the payment of the interest and Additional Amounts, if any, due on
such Interest Payment Date, such defaulted interest and Additional Amounts, if
any, shall be paid to the persons in whose names outstanding Registered
Securities are registered on a subsequent record date established by notice
given by mail by or on behalf of the Issuer to the Holders of Securities of the
series in default not less than fifteen days preceding such subsequent record
date, such record date to be not less than five days preceding the date of
payment of such defaulted interest.
SECTION 2.05. Exchange and Registration of Transfer of Securities.
Registered Securities of any series may be exchanged for a like aggregate
principal amount of Registered Securities of other authorized denominations of
such series. Registered Securities to be exchanged shall be surrendered at the
office or agency to be designated and maintained by the Issuer for such purpose
in the Borough of Manhattan, The City of New York, in accordance with the
provisions of Section 5.02, and the Issuer shall execute and register and the
Trustee shall authenticate and deliver in exchange therefor the Registered
Security or Registered Securities which the Holder making the exchange shall be
entitled to receive.
If the Securities of any series are issued in both registered and
unregistered form, except as otherwise specified pursuant to Section 2.01, at
the option of the Holder thereof, Unregistered Securities of any series may be
exchanged for Registered Securities of such series of any authorized
denominations and of a
15
like aggregate principal amount, upon surrender of such Unregistered Securities
to be exchanged at the agency of the Issuer that shall be maintained for such
purpose in accordance with Section 5.02, with, in the case of Unregistered
Securities that are Coupon Securities, all unmatured Coupons and all matured
Coupons in default thereto appertaining. At the option of the Holder thereof,
if Unregistered Securities of any series are issued in more than one authorized
denomination, except as otherwise specified pursuant to Section 2.01, such
Unregistered Securities may be exchanged for Unregistered Securities of such
series of other authorized denominations and of a like aggregate principal
amount, upon surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in accordance
with Section 5.02 or as specified pursuant to Section 2.01, with, in the case
of Unregistered Securities that are Coupon Securities, all unmatured Coupons
and all matured Coupons in default thereto appertaining. Unless otherwise
specified pursuant to Section 2.01, Registered Securities of any series may not
be exchanged for Unregistered Securities of such series. Whenever any
Securities are so surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
The Issuer (or its designated agent (the "Security Registrar")) shall
keep, at such office or agency, a Security Register (the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Issuer shall register Securities and shall register the transfer of Registered
Securities as in this Article Two provided. The Security Register shall be in
written form or in any other form capable of being converted into written form
within a reasonable time. At all reasonable times the Security Register shall
be open for inspection by the Trustee. Upon due presentment for registration of
transfer of any Registered Security of a particular series at such office or
agency, the Issuer shall execute and the Issuer or the Security Registrar shall
register and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Registered Security or Registered Securities of
such series for an equal aggregate principal amount.
Unregistered Securities and Coupons shall be transferable by delivery.
All Securities presented for registration of transfer or for exchange,
redemption or payment, as the case may be, shall (if so required by the Issuer
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Issuer and the Trustee
duly executed by, the Holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Registered Securities, but the Issuer may require payment of a sum
16
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith.
The Issuer shall not be required to exchange or register a transfer of
(a) any Registered Securities of any series for a period of fifteen days next
preceding any selection of such Registered Securities of such series to be
redeemed, or (b) any Security of any such series selected for redemption except
in the case of any such series to be redeemed in part, the portion thereof not
to be so redeemed.
All Securities issued upon any transfer or exchange of Securities
shall have a Guarantee or Guarantees endorsed thereon and shall be valid
obligations of the Issuer, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon such transfer
or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, neither the Issuer nor the Trustee (which shall
rely on an Officers' Certificate and an Opinion of Counsel) shall be required
to exchange any Unregistered Security for a Registered Security if such
exchange would result in adverse Federal income tax consequences to the Issuer
(including the inability of the Issuer to deduct from its income, as computed
for Federal income tax purposes, the interest payable on any Securities) under
then applicable United States Federal income tax laws.
SECTION 2.06. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Issuer may execute and upon receipt of
an Issuer Order the Trustee shall authenticate and deliver temporary Securities
of such series (printed or lithographed). Temporary Securities of any series
shall be issuable in any authorized denominations, and in the form approved
from time to time by or pursuant to a Board Resolution but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all
as may be determined by the Issuer. Every temporary Security shall be executed
by the Issuer, have endorsed thereon the Guarantees executed by the Guarantor,
which shall be substantively of the tenor and substantially in the form of the
definitive Guarantees, and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Securities. Without unnecessary delay the Issuer shall execute and
shall furnish definitive Securities of such series having endorsed thereon the
Guarantees executed by the Guarantor and thereupon any or all temporary
Registered Securities of such series may be surrendered in exchange therefor
without charge at the office or agency to be designated and maintained by the
Issuer for such purpose in the Borough of Manhattan, The City of New York, in
accordance with the provisions of Section 5.02 and in the case of Unregistered
Securities at any agency maintained by the Issuer for such purpose as specified
pursuant to Section 2.01, and the Trustee shall
17
authenticate and deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of the same series of
authorized denominations and in the case of such Securities that are Coupon
Securities, having attached thereto the appropriate Coupons. Until so exchanged
the temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series. The provisions of
this Section 2.06 are subject to any restrictions or limitations on the issue
and delivery of temporary Unregistered Securities of any series that may be
established pursuant to Section 2.01 (including any provision that Unregistered
Securities of such series initially be issued in the form of a single global
Unregistered Security to be delivered to a depositary or agency of the Issuer
located outside the United States and the procedures pursuant to which
definitive Unregistered Securities of such series would be issued in exchange
for such temporary global Unregistered Security).
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Securities. In case
any temporary or definitive Security of any series or, in the case of a Coupon
Security, any Coupon appertaining thereto, shall become mutilated or be
destroyed, lost or stolen, the Issuer in the case of a mutilated Security or
Coupon shall, and in the case of a lost, stolen or destroyed Security or Coupon
may, in its discretion, execute, and upon receipt of an Issuer Order the
Trustee shall authenticate and deliver, a new Security of the same series as
the mutilated, destroyed, lost or stolen Security or, in the case of a Coupon
Security, a new Coupon Security of the same series as the mutilated, destroyed,
lost or stolen Coupon Security or, in the case of a Coupon, a new Coupon
Security of the same series as the Coupon Security to which such mutilated,
destroyed, lost or stolen Coupon appertains, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed, lost
or stolen or in exchange for the Coupon Security to which such mutilated,
destroyed, lost or stolen Coupon appertains, with all appurtenant Coupons not
destroyed, lost or stolen. In every case the applicant for a substituted
Security or Coupon shall furnish to the Issuer, to the Guarantor and to the
Trustee such security or indemnity as may be required by them to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer, to the Guarantor and to the Trustee evidence
to their satisfaction of the destruction, loss or theft of such Security or
Coupon, as the case may be, and of the ownership thereof. The Trustee may
authenticate any such substituted Security and deliver the same upon the
written request or authorization of any officer of the Issuer. Upon the
issuance of any substituted Security or Coupon, the Issuer 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 connected therewith
and in addition a further sum not exceeding ten dollars for each Security so
issued in substitution.
18
In case any Security or Coupon which has matured or is about to mature shall
become mutilated or be destroyed, lost or stolen, the Issuer may, instead of
issuing a substituted Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Security or
Coupon) if the applicant for such payment shall furnish the Issuer, the
Guarantor and the Trustee with such security or indemnity as they may require
to save them harmless and, in case of destruction, loss or theft, evidence to
the satisfaction of the Issuer, the Guarantor and the Trustee of the
destruction, loss or theft of such Security or Coupon and of the ownership
thereof.
Every substituted Security with, in the case of any such Security that
is a Coupon Security, its Coupons, issued pursuant to the provisions of this
Section by virtue of the fact that any Security or Coupon is destroyed, lost or
stolen shall, with respect to such Security or Coupon, constitute an additional
contractual obligation of the Issuer containing the Guarantees as herein
provided, whether or not the destroyed, lost or stolen Security or Coupon shall
be found at any time, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities, and
the Coupons appertaining thereto, duly issued hereunder.
All Securities and any Coupons appertaining thereto shall be held and
owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities and Coupons appertaining thereto and shall, to the extent
permitted by law, preclude any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
SECTION 2.08. Cancellation. All Securities surrendered for payment,
redemption, exchange or registration of transfer, and all Coupons surrendered
for payment as the case may be, shall, if surrendered to the Issuer or the
Guarantor or any agent of the Issuer or any agent of the Guarantor or the
Trustee, be delivered to the Trustee and promptly cancelled by it or, if
surrendered to the Trustee, be cancelled by it, and no Securities or Coupons
shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee shall destroy cancelled Securities
and Coupons and deliver a certificate of destruction to the Issuer.
SECTION 2.09. Computation of Interest. Except as otherwise specified
as contemplated by Section 2.01 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
19
SECTION 2.10. Securities in Global Form. If Securities of a series are
issuable in global form, as specified by Section 2.01, then, notwithstanding
Section 2.01(i) and the provisions of Section 2.04, 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 Issuer Order to be delivered to the Trustee
pursuant to Section 2.03 or Section 2.06. Subject to the provisions of Section
2.03 and, if applicable, Section 2.06, 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 Issuer Order. If an Issuer Order pursuant to Section 2.03 or 2.06
has been, or simultaneously is, delivered, any instructions by the Issuer with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 15.04 and need not be
accompanied by an Opinion of Counsel. The beneficial owner of a Security
represented by a definitive Global Security in bearer form may, upon no less
than 30 days written notice to the Trustee, given by the beneficial owner
through a Depository, exchange its interest in such definitive Global Security
for a definitive Bearer Security or Securities, or a definitive Registered
Security or Securities, of any authorized denomination, subject to the rules
and regulations of such Depository and its members. No individual definitive
Bearer Security will be delivered in or to the United States.
The provisions of the last sentence of the fourth to the last
paragraph of Section 2.03 shall apply to any Security represented by a Security
in global form if such Security was never issued and sold by the Issuer and the
Issuer delivers to the Trustee the Security in global form together with
written instructions (which need not comply with Section 15.04 and need not be
accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of the fourth to the last paragraph
of Section 2.03.
Unless otherwise specified as contemplated by Section 2.01, 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.
SECTION 2.11. Medium-term Securities. Notwithstanding any contrary
provision herein, if all Securities of a series are not to be originally issued
at one
20
time, it shall not be necessary to deliver the Issuer Order, Officers'
Certificate, supplemental indenture or Opinion of Counsel otherwise required
pursuant to Sections 15.04, 2.01 2.03 and 2.06 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.
An Officers' Certificate or supplemental indenture, delivered pursuant
to this Section 2.11 in the circumstances set forth in the preceding paragraph
may provide that Securities which are the subject thereof will be authenticated
and delivered by the Trustee on original issue from time to time upon the
written order of persons designated in such Officers' Certificate or
supplemental indenture and that such persons are authorized to determine,
consistent with such Officers' Certificate or any applicable supplemental
indenture such terms and conditions of said Securities as are specified in such
Officers' Certificate or supplemental indenture, provided that the foregoing
procedure is acceptable to the Trustee.
ARTICLE 3
GUARANTEE OF SECURITIES
SECTION 3.01. Unconditional Guarantee. The Guarantor hereby
unconditionally guarantees to each holder of a Security of each series
authenticated and delivered by the Trustee, the due and punctual payment of the
principal of (including any amount in respect of original issue discount), and
interest, if any (together with any Additional Amounts payable pursuant to the
terms of such Security), on such Security and the due and punctual payment of
the sinking fund payments, if any, and analogous obligations, if any, provided
for pursuant to the terms of such Security, when and as the same shall become
due and payable, whether at maturity or upon redemption or upon declaration of
acceleration or otherwise according to the terms of such Security and of this
Indenture. In case of default by the Issuer in the payment of any such
principal (including any amount in respect of original issue discount),
interest (together with any Additional Amounts payable pursuant to the terms of
such Security), sinking fund payment, or analogous obligation, the Guarantor
agrees duly and punctually to pay, the same. The Guarantor hereby agrees that
its obligations hereunder shall be absolute and unconditional irrespective of
any extension of the time for payment of any such Security, any modification of
any such Security, any invalidity, irregularity or unenforceability of any such
Security or this Indenture, any failure to enforce the same or any waiver,
modification or indulgence granted to the Issuer with respect thereto by the
holder of such Security or the Trustee, or any other circumstances which may
otherwise constitute a legal or equitable
21
discharge of a surety or guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Issuer, any right to require a demand or proceeding
first against the Issuer, protest or notice with respect to any such Security
or the indebtedness evidenced thereby and all demands whatsoever, and covenants
that this guarantee will not be discharged as to any such Security except by
payment in full of the principal of (including any amount payable in respect of
original issue discount), and interest, if any (together with any Additional
Amounts payable pursuant to the terms of such Security), thereon.
The Guarantor irrevocably waives any and all rights to which it may be
entitled, by operation of law or otherwise, upon making any payment hereunder
(i) to be subrogated to the rights of a Holder against the Issuer with respect
to such payment or otherwise to be reimbursed, indemnified or exonerated by the
Issuer in respect thereof or (ii) to receive any payment, in the nature of
contribution or for any other reason, from any other obligor with respect to
such payment.
The guarantee set forth in this Section shall not be valid or become
obligatory for any purpose with respect to a Security of any series until the
certificate of authentication on such Security shall have been signed by the
Trustee.
SECTION 3.02. Execution of Guarantees. To evidence its guarantee
specified in Section 3.01 to the holders of Securities of any series, the
Guarantor hereby agrees to execute the Guarantees in substantially the form
above recited to be endorsed on each Security of such series authenticated and
delivered by the Trustee. Such Guarantees shall be executed on behalf of the
Guarantor by both its Chairman or its Vice Chairman or its President or any
Vice President and its Treasurer or any Assistant Treasurer or its Secretary or
any Assistant Secretary, under its corporate seal which may, but need not, be
attested, prior to the authentication of the Security on which it is endorsed,
and the delivery of such Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of such Guarantees on behalf
of the Guarantor. The seal of the Guarantor may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Guarantees. Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect the validity or
enforceability of any Guarantee that has been duly authenticated and delivered
by the Trustee.
Such signatures may be the manual or facsimile signatures of such
officers and may be imprinted or otherwise reproduced on the Guarantees. In
case any officer of the Guarantor who shall have signed any of the Guarantees
shall cease to be an officer before the Security on which such Guarantees are
endorsed shall
22
have been authenticated and delivered by the Trustee or disposed of by the
Issuer, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Guarantees had not ceased to
be such officer, and any Guarantees may be signed on behalf of the Guarantor by
such persons as, at the actual date of the execution of such Guarantees, shall
be the proper officers of the Guarantor, although at the date of such Security
or of the execution of this Indenture any such person was not such an officer.
ARTICLE 4
REDEMPTION OF SECURITIES
SECTION 4.01. Redemption of Securities; Applicability of Article.
Redemption of Securities of any series as permitted or required by the terms
thereof shall be made in accordance with such terms and this Article; provided,
however, that if any provision of any series of Securities shall conflict with
any provision of this Article, the provision of such series of Securities shall
govern.
The notice date for a redemption of Securities shall mean the date on
which notice of such redemption is given in accordance with the provisions of
Section 4.02 hereof.
SECTION 4.02. Notice of Redemption; Selection of Securities. The
election of the Issuer to redeem any Securities shall be evidenced by an
Officers' Certificate. In case the Issuer shall desire to exercise the right to
redeem all, or, as the case may be, any part of a series of Securities pursuant
to the terms and provisions applicable to such series, it shall fix a date for
redemption and shall mail a notice of such redemption at least thirty and not
more than sixty days prior to the date fixed for redemption to the Holders of
the Securities of such series which are Registered Securities to be redeemed as
a whole or in part at their last addresses as the same appear on the Security
Register. Such mailing shall be by prepaid first class mail. Any notice which
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder shall have received such notice. In
any case, failure to give notice by mail, or any defect in the notice to the
Holder of any Security of a series designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Security of such series.
Notice of redemption to the Holders of Unregistered Securities to be
redeemed as a whole or in part, who have filed their names and addresses with
the Trustee as described in Section 6.04, shall be given by mailing notice of
such redemption, by first class mail, postage prepaid, at least thirty days and
not more
23
than sixty days prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Issuer, the Trustee shall make such information available
to the Issuer for such purpose). Notice of redemption to any other Holder of an
Unregistered Security of such series shall be published in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and in an
Authorized Newspaper in London (and, if required by Section 5.04, in an
Authorized Newspaper in Luxembourg), in each case, once in each of two
successive calendar weeks, the first publication to be not less than thirty nor
more than sixty days prior to the date fixed for redemption. Any notice which
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder shall have received such notice. In
any case, failure to give notice by mail, or any defect in the notice to the
Holder of any Security of a series designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Security of such series.
Each such notice of redemption shall specify the provisions of such
Securities under which such redemption is made, that the conditions precedent,
if any, to such redemption have occurred, shall describe the same and the date
fixed for redemption, the redemption price at which such Securities are to be
redeemed, the Place of Payment, that payment will be made upon presentation and
surrender of such Securities and, in the case of Coupon Securities, of all
Coupons appertaining thereto maturing after the date fixed for redemption, that
interest and Additional Amounts, if any, accrued to the date fixed for
redemption will be paid as specified in said notice, and that on and after said
date interest, if any, thereon or on the portions thereof to be redeemed will
cease to accrue. If less than all of the Securities of a series are to be
redeemed any notice of redemption published in an Authorized Newspaper shall
specify the numbers of the Securities to be redeemed. In case any Security 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 upon
surrender of such Security, a new Security or Securities in principal amount
equal to the unredeemed portion thereof will be issued of the same series.
At least one Business Day prior to the redemption date specified in
the notice of redemption given for Unregistered Securities as provided in this
Section and on or prior to the redemption date specified in the notice of
redemption given for all Securities other than Unregistered Securities, the
Issuer will deposit in trust with the Trustee or with one or more paying agents
an amount of money sufficient to redeem on the redemption date all the
Securities or portions of Securities so called for redemption at the
appropriate redemption price, together with accrued interest, if any, to the
date fixed for redemption. The Issuer will give the Trustee
24
notice of each redemption at least forty-five days prior to the date fixed for
redemption (unless a shorter notice is acceptable to the Trustee) as to the
aggregate principal amount of Securities to be redeemed.
If less than all of the Securities of a series are to be redeemed, the
Trustee shall select, pro rata or by lot or in such other manner as it shall
deem reasonable and fair, the numbers of the Securities to be redeemed in whole
or in part.
SECTION 4.03. Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities with respect to which such notice has been given shall become due
and payable on the date and at the Place of Payment stated in such notice at
the applicable redemption price, together with interest, if any (and Additional
Amounts, if any), accrued to the date fixed for redemption, and on and after
said date (unless the Issuer shall default in the payment of such Securities at
the redemption price, together with interest, if any, and Additional Amounts,
if any, accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue. On presentation and
surrender of such Securities subject to redemption at said Place of Payment in
said notice specified, the said Securities or the specified portions thereof
shall be paid and redeemed by the Issuer at the applicable redemption price,
together with interest, if any, and Additional Amounts, if any, accrued thereon
to the date fixed for redemption. Interest, if any (and Additional Amounts, if
any), maturing on or prior to the date fixed for redemption shall continue to
be payable (but without interest thereon unless the Issuer shall default in
payment thereof) in the case of Coupon Securities to the bearers of the Coupons
for such interest upon surrender thereof, and in the case of Registered
Securities to the Holders thereof registered as such on the Security Register
on the relevant record date subject to the terms and provisions of Section
2.04. At the option of the Issuer payment may be made by check to (or to the
order of) the Holders of the Securities or other persons entitled thereto
against presentation and surrender of such Securities.
If any Coupon Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the date fixed for
redemption, the surrender of such missing Coupon or Coupons may be waived by
the Issuer and the Trustee, if there be furnished to each of them such security
or indemnity as they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to the Holder
thereof, at the expense of the Issuer, a new Security or Securities, of
authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the Security so presented of the same series.
25
ARTICLE 5
PARTICULAR COVENANTS OF THE ISSUER AND THE GUARANTOR
As to the Issuer:
SECTION 5.01. Payment of Principal, Premium, Interest and Additional
Amounts. The Issuer will duly and punctually pay or cause to be paid the
principal of (and premium, if any), interest, if any, and Additional Amounts,
if any, on each of the Securities at the place, at the respective times and in
the manner provided in the terms of the Securities and in this Indenture. The
interest on Coupon Securities (together with any Additional Amounts) shall be
payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. The
interest, if any, on any temporary bearer Securities (together with any
Additional Amounts) shall be paid, as to the installments of interest evidenced
by Coupons attached thereto, if any, only upon presentation and surrender
thereof, and, as to the other installments of interest, if any, only upon
presentation of such Securities for notation thereon of the payment of such
interest. The interest on Registered Securities (together with any Additional
Amounts) shall be payable only to the Holders thereof and at the option of the
Issuer may be paid by mailing checks for such interest payable to or upon the
order of such Holders at their last addresses as they appear on the Security
Register for such Securities.
SECTION 5.02. Offices for Notices and Payments, Etc. As long as any of
the Securities of a series remain outstanding, the Issuer will designate and
maintain, in the Borough of Manhattan, The City of New York, an office or
agency where the Registered Securities of such series may be presented for
registration of transfer and for exchange as in this Indenture provided, an
office or agency where notices and demands to or upon the Issuer in respect of
the Securities of such series or of this Indenture may be served, and an office
or agency where the Securities of such series may be presented for payment. The
Issuer will give to the Trustee notice of the location of each such office or
agency and of any change in the location thereof. In case the Issuer shall fail
to maintain any such office or agency in the Borough of Manhattan, The City of
New York, or shall fail to give such notice of the location or of any change in
the location thereof, presentations may be made and notices and demands may be
served at the corporate trust office of the Trustee in the Borough of
Manhattan, The City of New York, and the Issuer hereby appoints the Trustee as
its agent to receive all such presentations, notices and demands.
If Unregistered Securities of any series are outstanding, the Issuer
will maintain or cause the Trustee to maintain one or more agencies in a city
or cities located outside the United States (including any city in which such
an agency is
26
required to be maintained under the rules of any stock exchange on which the
Securities of such series are listed) where such Unregistered Securities, and
Coupons, if any, appertaining thereto may be presented for payment. No payment
on any Unregistered Security or Coupon will be made upon presentation of such
Unregistered Security or Coupon at an agency of the Issuer within the United
States nor will any payment be made by transfer to an account in, or by mail to
an address in, the United States, except, at the option of the Issuer, if the
Issuer shall have determined that, pursuant to applicable United States laws
and regulations then in effect such payment can be made without adverse tax
consequences to the Issuer. Notwithstanding the foregoing, payments in U.S.
Dollars with respect to Unregistered Securities of any series and Coupons
appertaining thereto which are payable in U.S. Dollars may be made at an agency
of the Issuer maintained in the Borough of Manhattan, The City of New York if
such payment in U.S. Dollars at each agency maintained by the Issuer outside
the United States for payment on such Unregistered Securities is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Issuer hereby initially designates Citibank, N.A., located at its
Corporate Trust Office as the Security Registrar and as the office or agency of
the Issuer in the Borough of Manhattan, The City of New York, where the
Securities may be presented for payment and, in the case of Registered
Securities, for registration of transfer and for exchange as in this Indenture
provided and where notices and demands to or upon the Issuer in respect of the
Securities of any series or of this Indenture may be served.
SECTION 5.03. Provisions as to Paying Agent. (a) Whenever the Issuer
shall appoint a paying agent other than the Trustee with respect to the
Securities of any series, it will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section:
(i) that it will hold sums held by it as such agent for the
payment of the principal of (and premium, if any), interest, if any,
or Additional Amounts, if any, on the Securities of such series in
trust for the benefit of the Holders of the Securities of such
series, or Coupons appertaining thereto, as the case may be, entitled
thereto and will notify the Trustee of the receipt of sums to be so
held,
(ii) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to
make any payment of the principal of (or premium, if any), interest,
if any, or Additional Amounts, if any, on the Securities of such
series when the same shall be due and payable, and
27
(iii) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such paying agent.
(b) If the Issuer or the Guarantor shall act as paying agent, it will,
on or before each due date of the principal of (and premium, if any), interest,
if any, or Additional Amounts, if any, on the Securities of any series set
aside, segregate and hold in trust for the benefit of the Holders of the
Securities of such series entitled thereto a sum sufficient to pay such
principal (and premium if any), interest, if any, or Additional Amounts, if
any, so becoming due. The Issuer or the Guarantor, as the case may be, will
promptly notify the Trustee of any failure to take such action.
(c) Anything in this Section to the contrary notwithstanding, the
Issuer or the Guarantor may, at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for such series by it or any paying agent
hereunder as required by this Section, such sums to be held by the Trustee upon
the trusts herein contained.
(d) Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 13.03 and 13.04.
SECTION 5.04. Luxembourg Publications. In the event of the publication
of any notice pursuant to Section 4.02, 7.07, 8.10, 8.11, 10.02, 11.02 or
13.05, the party making such publication shall also, to the extent that notice
is required so to be given to Holders of Securities of any series by applicable
Luxembourg law or stock exchange regulation, make a similar publication the
same number of times in Luxembourg.
SECTION 5.05. Statement by Officers as to Default. The Issuer will
deliver to the Trustee, on or before a date not more than four months after the
end of each fiscal year of the Issuer (which, on the date of execution hereof,
ends on December 31) ending after the date hereof, commencing with the fiscal
year ended in 2001, an Officers' Certificate, stating whether or not to the
best knowledge of the signers thereof the Issuer is in default in the
performance or observance of any of the terms, provisions and conditions of
this Indenture to be performed or observed by it and, if the Issuer shall be in
default, specifying all such defaults and the nature thereof of which they may
have knowledge.
As to Guarantor:
28
SECTION 5.06. Statement by Officers as to Default. The Guarantor will
deliver to the Trustee, on or before a date not more than four months after the
end of each fiscal year of the Guarantor (which, on the date of execution
hereof, ends on December 31) ending after the date hereof, commencing with the
fiscal year ended in 2001, an Officers' Certificate, stating whether or not to
the best knowledge of the signers thereof the Guarantor is in default in the
performance or observance of any of the terms, provisions and conditions of
this Indenture to be performed or observed by it and, if the Guarantor shall be
in default, specifying all such defaults and the nature thereof of which they
may have knowledge.
SECTION 5.07. Limitations on Liens. For the benefit of the Securities,
the Guarantor will not, nor will it permit any Manufacturing Subsidiary to,
issue or assume any Debt secured by a Mortgage upon any Principal Domestic
Manufacturing Property of the Guarantor or any Manufacturing Subsidiary or upon
any shares of stock or indebtedness of any Manufacturing Subsidiary (whether
such Principal Domestic Manufacturing Property, shares of stock or indebtedness
are now owned or hereafter acquired) without in any such case effectively
providing concurrently with the issuance or assumption of any such Debt that
the Securities (together with, if the Guarantor shall so determine, any other
indebtedness of the Guarantor or such Manufacturing Subsidiary ranking equally
with the Guarantees and then existing or thereafter created) shall be secured
equally and ratably with such secured Debt, unless the aggregate amount of Debt
issued or assumed and so secured by Mortgages, together with all other Debt of
the Guarantor and its Manufacturing Subsidiaries which (if originally issued or
assumed at such time) would otherwise be subject to the foregoing restrictions,
but not including Debt permitted to be secured under clauses (i) through (vi)
of the immediately following paragraph, does not at the time exceed 20% of the
stockholders' equity of the Guarantor and its consolidated subsidiaries, as
determined in accordance with generally accepted accounting principles and
shown on the audited consolidated balance sheet contained in the latest
published annual report to the stockholders of the Guarantor.
The above restrictions shall not apply to Debt secured by (i)
Mortgages on property, shares of stock or indebtedness of any corporation
existing at the time such corporation becomes a Manufacturing Subsidiary; (ii)
Mortgages on property existing at the time of acquisition of such property by
the Guarantor or a Manufacturing Subsidiary, or Mortgages to secure the payment
of all or any part of the purchase price of such property upon the acquisition
of such property by the Guarantor or a Manufacturing Subsidiary or to secure
any Debt incurred prior to, at the time of, or within 180 days after, the later
of the date of acquisition of such property and the date such property is
placed in service, for the purpose of financing all or any part of the purchase
price thereof, or Mortgages to secure any Debt incurred for the purpose of
financing the cost to the Guarantor or a
29
Manufacturing Subsidiary of improvements to such acquired property; (iii)
Mortgages securing Debt of a Manufacturing Subsidiary owing to the Guarantor or
to another Subsidiary; (iv) Mortgages on property of a corporation existing at
the time such corporation is merged or consolidated with the Guarantor or a
Manufacturing Subsidiary or at the time of a sale, lease or other disposition
of the properties of a corporation as an entirety or substantially as an
entirety to the Guarantor or a Manufacturing Subsidiary; (v) Mortgages on
property of the Guarantor or a Manufacturing Subsidiary in favor of the United
States of America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States of America or any
State thereof, or in favor of any other country, or any political subdivision
thereof, to secure partial, progress, advance or other payments pursuant to any
contract or statute or to secure any indebtedness incurred for the purpose of
financing all or any part of the purchase price or the cost of construction of
the property subject to such Mortgages; or (vi) any extension, renewal or
replacement (or successive extensions, renewals or replacements) in whole or in
part of any Mortgage referred to in the foregoing clauses (i) to (v),
inclusively; PROVIDED, HOWEVER, that the principal amount of Debt secured
thereby shall not exceed by more than 115% the principal amount of Debt so
secured at the time of such extension, renewal or replacement and that such
extension, renewal or replacement shall be limited to all or a part of the
property which secured the Mortgage so extended, renewed or replaced (plus
improvements on such property).
SECTION 5.08. Limitation on Sale and Lease-back. For the benefit of
the Securities, the Guarantor will not, nor will it permit any Manufacturing
Subsidiary to, enter into any arrangement with any person providing for the
leasing by the Guarantor or any Manufacturing Subsidiary of any Principal
Domestic Manufacturing Property owned by the Guarantor or any Manufacturing
Subsidiary on the date that the Securities are originally issued (except for
temporary leases for a term of not more than five years and except for leases
between the Guarantor and a Manufacturing Subsidiary or between Manufacturing
Subsidiaries), which property has been or is to be sold or transferred by the
Guarantor or such Manufacturing Subsidiary to such person, unless either (i)
the Guarantor or such Manufacturing Subsidiary would be entitled, pursuant to
the provisions of the covenant on limitation on liens described above, to
issue, assume, extend, renew or replace Debt secured by a Mortgage upon such
property equal in amount to the Attributable Debt in respect of such
arrangement without equally and ratably securing the Guarantees; provided,
however, that from and after the date on which such arrangement becomes
effective the Attributable Debt in respect of such arrangement shall be deemed
for all purposes under the covenant on limitation on liens described in Section
5.07 and this covenant on limitation on sale and lease- back to be Debt subject
to the provisions of the covenant on limitation on liens described above (which
provisions include the exceptions set forth in clauses(i)
30
through (vi) of such covenant), or (ii) the Guarantor shall apply an amount in
cash equal to the Attributable Debt in respect of such arrangement to the
retirement (other than any mandatory retirement or by way of payment at
maturity), within 180 days of the effective date of any such arrangement, of
Debt of the Guarantor or any Manufacturing Subsidiary (other than Debt owned by
the Guarantor or any Manufacturing Subsidiary) which by its terms matures at or
is extendible or renewable at the option of the obligor to a date more than
twelve months after the date of the creation of such Debt.
SECTION 5.09. Definitions Applicable to Sections 5.07 and 5.08. The
following definitions shall be applicable to the covenants contained in
Sections 5.07 and 5.08 hereof:
(a) "Attributable Debt" means, at the time of determination as to any
lease, the present value (discounted at the actual rate, if stated, or, if no
rate is stated, the implicit rate of interest of such lease transaction as
determined by the chairman, president, any vice chairman, any vice president,
the treasurer or any assistant treasurer of the Guarantor), calculated using
the interval of scheduled rental payments under such lease, of the obligation
of the lessee for net rental payments during the remaining term of such lease
(excluding any subsequent renewal or other extension options held by the
lessee). The term "net rental payments" means, with respect to any lease for
any period, the sum of the rental and other payments required to be paid in
such period by the lessee thereunder, but not including, however, any amounts
required to be paid by such lessee (whether or not designated as rental or
additional rental) on account of maintenance and repairs, insurance, taxes,
assessments, water rates, indemnities or similar charges required to be paid by
such lessee thereunder or any amounts required to be paid by such lessee
thereunder contingent upon the amount of sales, earnings or profits or of
maintenance and repairs, insurance, taxes, assessments, water rates,
indemnities or similar charges; provided, however, that, in the case of any
lease which is terminable by the lessee upon the payment of a penalty in an
amount which is less than the total discounted net rental payments required to
be paid from the later of the first date upon which such lease may be so
terminated and the date of the determination of net rental payments, "net
rental payments" shall include the then current amount of such penalty from the
later of such two dates, and shall exclude the rental payments relating to the
remaining period of the lease commencing with the later of such two dates.
(b) "Debt" means notes, bonds, debentures or other similar evidences
of indebtedness for money borrowed.
(c) "Manufacturing Subsidiary" means any Subsidiary (i) substantially
all the property of which is located within the continental United States of
31
America, (ii) which owns a Principal Domestic Manufacturing Property and (iii)
in which the Guarantor's investment, direct or indirect and whether in the form
of equity, debt, advances or otherwise, is in excess of U.S.$2,500,000,000 as
shown on the books of the Guarantor as of the end of the fiscal year
immediately preceding the date of determination; PROVIDED, HOWEVER, that
"Manufacturing Subsidiary" shall not include Xxxxxx Electronics Corporation and
its Subsidiaries, General Motors Acceptance Corporation and its Subsidiaries
(or any corporate successor of either of them) or any other Subsidiary which is
principally engaged in leasing or in financing installment receivables or
otherwise providing financial or insurance services to the Guarantor or others
or which is principally engaged in financing the Guarantor's operations outside
the continental United States of America.
(d) "Mortgage" means any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
encumbrance.
(e) "Principal Domestic Manufacturing Property" means any
manufacturing plant or facility owned by the Guarantor or any Manufacturing
Subsidiary which is located within the continental United States of America
and, in the opinion of the Board of Directors, is of material importance to the
total business conducted by the Guarantor and its consolidated affiliates as an
entity.
(f) "Subsidiary" means any corporation of which at least a majority of
the outstanding stock having by the terms thereof ordinary voting power to
elect a majority of the board of directors of such corporation (irrespective of
whether or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time owned by the Guarantor, or by one or more
Subsidiaries, or by the Guarantor and one or more Subsidiaries.
ARTICLE 6
SECURITYHOLDER LISTS AND REPORTS BY THE ISSUER
AND THE TRUSTEE
SECTION 6.01. Securityholder Lists. Each of the Issuer and the
Guarantor covenants and agrees that it will furnish or cause to be furnished to
the Trustee with respect to the Securities of each series:
(a) semiannually, not later than each Interest Payment Date (in the
case of any series having semiannual Interest Payment Dates) or not later than
the dates determined pursuant to Section 2.01 (in the case of any series not
having
32
semiannual Interest Payment Dates) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities of
such series as of the Regular Record Date (or as of such other date as may be
determined pursuant to Section 2.01 for such series) therefor, and
(b) at such other times as the Trustee may request in writing, within
thirty days after receipt by the Issuer of any such request, a list in such
form as the Trustee may reasonably require of the names and addresses of the
Holders of Securities of a particular series specified by the Trustee as of a
date not more than fifteen days prior to the time such information is
furnished; provided, however, that if and so long as the Trustee shall be the
Security Registrar any such list shall exclude names and addresses received by
the Trustee in its capacity as Security Registrar, and if and so long as all of
the Securities of any series are Registered Securities, such list shall not be
required to be furnished.
SECTION 6.02. Preservation and Disclosure of Lists. (a) The Trustee
shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of each series of
Securities (i) contained in the most recent list furnished to it as provided in
Section 6.01, (ii) received by the Trustee in its capacity as Security
Registrar or a Paying Agent, or (iii) filed with it within the preceding two
years pursuant to Section 5.04(c). The Trustee may destroy any list furnished
to it as provided in Section 6.01 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities (hereinafter referred
to as "applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security of such series
for a period of at least six months preceding the date of such application, and
such application states that the applicants' desire to communicate with other
Holders of Securities of a particular series (in which case the applicants must
hold Securities of such series) or with Holders of all Securities with respect
to their rights under this Indenture or under such Securities and it is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five business
days after the receipt of such application, at its election, either:
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section, or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as the case
may be, whose names and addresses appear in the information preserved
at the
33
time by the Trustee, in accordance with the provisions of subsection
(a) of this Section, and as to the approximate cost of mailing to
such Securityholders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of such series or all Securities, as the case
may be, whose name and address appear in the information preserved at the time
by the Trustee in accordance with the provisions of subsection (a) of this
Section a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the Securities and Exchange
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of such series
or all Securities, as the case may be, or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If said
Commission, after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to sustain any of
such objections or if, after the entry of an order sustaining one or more of
such objections, said Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met, and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the
same, agrees with the Issuer and the Trustee that neither the Issuer nor the
Trustee nor any agent of the Issuer or of the Trustee shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with the provisions of
subsection (b) of this Section, 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 said subsection
(b).
SECTION 6.03. Reports by the Issuer and the Guarantor. The Issuer and
the Guarantor respectively covenant:
(a) to file with the Trustee within fifteen days after the Issuer or
the Guarantor, as the case may be, is required to file the same with the
Securities and
34
Exchange Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as said Commission may from time to time by rules and regulations prescribe)
which the Issuer or the Guarantor, as the case may be, may be required to file
with said Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Issuer or the Guarantor, as the case may be,
is not required to file information, documents or reports pursuant to either of
such sections, then to file with the Trustee and said Commission, in accordance
with rules and regulations prescribed from time to time by said Commission,
such of the supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Securities Exchange Act of 1934
in respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations.
(b) to file with the Trustee and the Securities and Exchange
Commission, in accordance with the rules and regulations prescribed from time
to time by said Commission, such additional information, documents, and reports
with respect to compliance by the Issuer and the Guarantor, as the case may be,
with the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations;
(c) to transmit by mail to all the Holders of Securities of each
series, as the names and addresses of such Holders appear on the Security
Register, within thirty days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by the
Issuer or the Guarantor, as the case may be, with respect to each such series
pursuant to subsections (a) and (b) of this Section as may be required by rules
and regulations prescribed from time to time by the Securities and Exchange
Commission; and
(d) If Unregistered Securities of any series are outstanding, to file
with the listing agent of the Issuer with respect to such series such documents
and reports of the Issuer or the Guarantor, as the case may be, as may be
required from time to time by the rules and regulations of any stock exchange
on which such Unregistered Securities are listed.
SECTION 6.04. Reports by the Trustee. (a) On or before April 1, 2002
and on or before April 1 of each year thereafter, so long as any Securities of
any series are outstanding hereunder, the Trustee shall transmit to the Holders
of Securities of such series, in the manner provided by Section 311(c) of the
Trust Indenture Act of 1939, a brief report dated as of the preceding February
15, as may be required by Sections 311(a) and (b) of the Trust Indenture Act of
1939.
35
(b) A copy of each such report shall, at the time of such transmission
to Holder of Securities of a particular series, be filed by the Trustee with
each stock exchange upon which the Securities of such series are listed and
also with the Securities and Exchange Commission. The Issuer agrees to notify
the Trustee when and as the Securities of any series become listed on any stock
exchange.
ARTICLE 7
REMEDIES ON DEFAULT
SECTION 7.01. Events of Default. In case one or more of the following
Events of Default with respect to a particular series of Securities shall have
occurred and be continuing, that is to say:
(a) default in the payment of the principal of (or premium, if any,
on) any of the Securities of such series as and when the same shall become due
and payable either at maturity, upon redemption, by declaration or otherwise;
or
(b) default in the payment of any installment of interest, if any, or
in the payment of any Additional Amounts upon any of the Securities of such
series as and when the same shall become due and payable, and continuance of
such default for a period of thirty days; or
(c) failure on the part of the Issuer or the Guarantor duly to observe
or perform any other of the covenants or agreements on the part of the Issuer
or the Guarantor applicable to such series of the Securities or contained in
this Indenture for a period of ninety days after the date on which written
notice of such failure, requiring the Issuer or the Guarantor to remedy the
same, shall have been given to the Issuer or the Guarantor by the Trustee, or
to the Issuer and the Guarantor and the Trustee by the Holders of at least
twenty-five percent in aggregate principal amount of the Securities of such
series at the time outstanding; or
(d) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer or the Guarantor in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Issuer or the Guarantor or
for any substantial part of its property, or ordering the winding-up or
liquidation of its affairs and such decree or order shall remain unstayed and
in effect for a period of ninety days; or
36
(e) the Issuer or the Guarantor shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) of the Issuer or the Guarantor or for any
substantial part of its property, or shall make any general assignment for the
benefit of creditors;
then if an Event of Default described in clause (a), (b) or (c) shall have
occurred and be continuing, and in each and every such case, unless the
principal amount of all the Securities of such series shall have already become
due and payable, either the Trustee or the Holders of not less than twenty-five
percent in aggregate principal amount of the Securities of all series affected
thereby then outstanding hereunder, by notice in writing to the Issuer and the
Guarantor (and to the Trustee if given by Holders of such Securities) may
declare the principal amount of all the Securities (or, with respect to
Original Issue Discount Securities, such lesser amount as may be specified in
the terms of such Securities) of the series affected thereby to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, any provision of this Indenture or the
Securities of such series contained to the contrary notwithstanding, or, if an
Event of Default described in clause (d) or (e) shall have occurred and be
continuing, and in each and every such case, either the Trustee or the Holders
of not less than twenty-five per cent in aggregate principal amount of all the
Securities then outstanding hereunder (voting as one class), by notice in
writing to the Issuer and the Guarantor (and to the Trustee if given by Holders
of Securities), may declare the principal of all the Securities not already due
and payable (or, with respect to Original Issue Discount Securities, such
lesser amount as may be specified in the terms of such Securities) to be due
and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable, any provision in this Indenture or in
the Securities to the contrary notwithstanding. The foregoing provisions,
however, are subject to the conditions that if, at any time after the principal
of the Securities of any one or more or all series, as the case may be, shall
have been so declared due and payable, and before any judgment or decree for
the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Issuer or the Guarantor shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments of interest,
if any, and all Additional Amounts, if any, due upon all the Securities of such
series or of all the Securities, as the case may be, and the principal of (and
premium, if any, on) all Securities of such series or of all the Securities, as
the case may be (or, with respect to Original Issue Discount Securities, such
lesser amount as may be specified in the terms of such Securities), which shall
have become due otherwise than by acceleration (with interest, if any, upon
such principal and premium, if any, and, to the extent that payment of such
37
interest is enforceable under applicable law, on overdue installments of
interest and Additional Amounts, if any, at the same rate as the rate of
interest specified in the Securities of such series, as the case may be (or,
with respect to Original Issue Discount Securities at the rate specified in the
terms of such Securities for interest on overdue principal thereof upon
maturity, redemption or acceleration of such series, as the case may be), to
the date of such payment or deposit), and such amount as shall be payable to
the Trustee pursuant to Section 8.06, and any and all defaults under the
Indenture shall have been remedied, then and in every such case the Holders of
a majority in aggregate principal amount of the Securities of such series (or
of all the Securities, as the case may be) then outstanding, by written notice
to the Issuer, the Guarantor and to the Trustee, may waive all defaults with
respect to that series or with respect to all Securities, as the case may be
and rescind and annul such declaration and its consequences; but no such waiver
or rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon. If the principal of all
Securities shall have been declared to be payable pursuant to this Section
7.01, in determining whether the Holders of a majority in aggregate principal
amount thereof have waived all defaults and rescinded and annulled such
declaration, all series of Securities shall be treated as a single class and
the principal amount of Original Issue Discount Securities shall be deemed to
be the amount declared payable under the terms applicable to such Original
Issue Discount Securities.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such recission and annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Issuer, Guarantor, Trustee and the Holders of Securities, as the case may be,
shall be restored respectively to their former positions and rights hereunder,
and all rights, remedies and powers of the Issuer, the Guarantor, the Trustee
and the Holders of Securities, as the case may be, shall continue as though no
such proceedings had been taken.
SECTION 7.02. Payment of Securities on Default; Suit Therefor. The
Issuer covenants that (1) in case default shall be made in the payment of any
installment of interest, if any, on any of the Securities of any series or any
Additional Amounts in payable respect of any of the Securities of any series,
as and when the same shall become due and payable, and such default shall have
continued for a period of thirty days or (2) in case default shall be made in
the payment of the principal of (or premium, if any, on) any of the Securities
of any series, as and when the same shall have become due and payable, whether
upon maturity of such series or upon redemption or upon declaration or
otherwise, then upon demand of the Trustee, the Issuer will pay to the Trustee,
for the benefit of the Holders of the Securities of such series, and the
Coupons, if any, appertaining
38
to such Securities, the whole amount that then shall have become due and
payable on all such Securities of such series and such Coupons, for principal
(and premium, if any) or interest, if any, or Additional Amounts, if any, as
the case may be, with interest upon the overdue principal (and premium, if any)
and (to the extent that payment of such interest is enforceable under
applicable law) upon overdue installments of interest, if any, and Additional
Amounts, if any, at the same rate as the rate of interest specified in the
Securities of such series (or, with respect to Original Issue Discount
Securities, at the rate specified in the terms of such Securities for interest
on overdue principal thereof upon maturity, redemption or acceleration); and,
in addition thereto, such further amounts as shall be payable pursuant to
Section 8.06.
In case the Issuer and the Guarantor shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Issuer,
the Guarantor or other obligor upon such Securities and collect in the manner
provided by law out of the property of the Issuer, the Guarantor or other
obligor upon such Securities wherever situated the moneys adjudged or decreed
to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Issuer, the Guarantor or any other obligor upon
Securities of any series under Title 11 of the United States Code or any other
applicable law, or in case a receiver or trustee shall have been appointed for
the property of the Issuer, the Guarantor or such other obligor, or in case of
any other judicial proceedings relative to the Issuer, the Guarantor or such
other obligor, or to the creditors or property of the Issuer, the Guarantor or
such other obligor, the Trustee, irrespective of whether the principal of the
Securities of such series shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section, shall be entitled
and empowered, by intervention in such proceedings or otherwise, to file and
prove a claim or claims for the whole amount of principal (or, with respect to
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that series), and premium, if any, interest, if
any, and Additional Amounts, if any, owing and unpaid in respect of the
Securities of such series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee under Section
8.06 and of the Holders of the Securities and Coupons of such series allowed in
any such judicial proceedings relative to the Issuer, the Guarantor or other
obligor upon the Securities of such series, or to the creditors or
39
property of the Issuer or Guarantor or such other obligor, and to collect and
receive any moneys or other property payable or deliverable on any such claims,
and to distribute all amounts received with respect to the claims of the
Securityholders of such series and of the Trustee on their behalf; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Holders of the Securities and Coupons of such series
to make payments to the Trustee and, in the event that the Trustee shall
consent to the making of payments directly to the Securityholders of such
series, to pay to the Trustee such amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other reasonable expenses and liabilities incurred, and all advances made,
by the Trustee except as a result of its negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities or Coupons appertaining to such Securities,
or the production thereof on any trial or other proceedings relative thereto,
and any such action or proceedings instituted by the Trustee shall be brought
in its own name and as trustee of an express trust, and any recovery of
judgment shall be for the ratable benefit of the Holders of the Securities or
Coupons appertaining thereto.
In case of a default hereunder the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 7.03. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 7.02 shall be applied in the order
following, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, if any, upon presentation of the several Securities and Coupons in
respect of which moneys have been collected, and stamping thereon the payment,
if only partially paid, and upon surrender thereof, if fully paid:
40
FIRST: To the payment of the amounts payable to the Trustee pursuant to
Section 8.06;
SECOND: In case the principal of the Securities in respect of which
moneys have been collected shall not have become due, to the payment of
interest, if any, and Additional Amounts, if any, on the Securities of such
series in the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the Trustee)
upon the overdue installments of interest at the same rate as the rate of
interest, if any, and Additional Amounts, if any, specified in the Securities
of such series (or, with respect to Original Issue Discount Securities, at the
rate specified in the terms of such Securities for interest on overdue
principal thereof upon maturity, redemption or acceleration), such payments to
be made ratably to the persons entitled thereto, without discrimination or
preference; and
THIRD: In case the principal of the Securities in respect of which
moneys have been collected shall have become due, by declaration or otherwise,
to the payment of the whole amount then owing and unpaid upon the Securities of
such series for principal (and premium, if any), interest, if any, and
Additional Amounts, if any, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest, if any, and
Additional Amounts, if any, at the same rate as the rate of interest specified
in the Securities of such series (or, with respect to Original Issue Discount
Securities, at the rate specified in the terms of such Securities for interest
on overdue principal thereof upon maturity, redemption or acceleration); and in
case such moneys shall be insufficient to pay in full the whole amount so due
and unpaid upon the Securities of such series, then to the payment of such
principal (and premium, if any), interest, if any, and Additional Amounts, if
any, without preference or priority of principal (and premium, if any), over
interest, if any, and Additional Amounts, if any, or of interest, if any, and
Additional Amounts, if any, over principal (and premium, if any), or of any
installment of interest, if any, or Additional Amounts, if any, over any other
installment of interest, if any, or Additional Amounts, if any, or of any
Security of such series over any other Security of such series, ratably to the
aggregate of such principal (and premium, if any), and accrued and unpaid
interest, if any, and Additional Amounts, if any.
SECTION 7.04. Proceedings by Securityholders. No Holder of any
Security of any series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceedings at law or in equity or in bankruptcy or otherwise,
upon or under or with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as
41
hereinbefore provided, and unless also the Holders of not less than twenty-five
percent in aggregate principal amount of the Securities of such series then
outstanding or, in the case of any Event of Default described in Section
7.01(d) or 7.01(e), twenty-five per cent in aggregate principal amount of all
the Securities at the time outstanding (voting as one class) shall have made
written request upon the Trustee to institute such action or proceedings in its
own name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for sixty days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceedings and no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 7.06; it being understood and intended, and being expressly
covenanted by the taker and Holder of every Security with every other taker and
Holder and the Trustee, that no one or more Holders of Securities or Coupons
appertaining to such Securities shall have any right in any manner whatever by
virtue of or by availing himself of any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holder of Securities or Coupons
appertaining to such Securities, or to obtain or seek to obtain priority over
or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities and Coupons. For the protection and
enforcement of the provisions of this Section, each and every Securityholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
Notwithstanding any other provisions in this Indenture, however, the
right of any Holder of any Security to receive payment of the principal of (and
premium, if any) and interest, if any, and Additional Amounts, if any, on such
Security or Coupon, on or after the respective due dates expressed in such
Security or Coupon, or to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder. With respect to Original Issue Discount
Securities, principal shall mean such amount as shall be due and payable be
specified in the terms of such Securities.
SECTION 7.05. Remedies Cumulative and Continuing. All powers and
remedies given by this Article Seven to the Trustee or to the Holders of
Securities or Coupons shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the Holders of Securities or Coupons, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture, and no delay or omission
of the Trustee or of any Holder of any of the Securities or Coupons to exercise
any right or power
42
accruing upon any default occurring and continuing as aforesaid shall impair
any such right or power or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the provisions of Section
7.04, every power and remedy given by this Article Seven or by law to the
Trustee or to the Holders of Securities or Coupons may be exercised from time
to time, and as often as shall be deemed expedient, by the Trustee or by the
Holders of Securities or Coupons, as the case may be.
SECTION 7.06. Direction of Proceedings. The Holders of a majority in
aggregate principal amount of the Securities of any or all series affected
(voting as one class) at the time outstanding 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; provided, however, that (i) such direction shall not be in conflict
with any rule of law or with this Indenture, (ii) the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction and (iii) the Trustee shall have the right to decline to follow any
such direction if the Trustee, being advised by counsel, determines that the
action or proceedings so directed would be prejudicial to the Holders not
joining in such direction or may not lawfully be taken or if the Trustee in
good faith by its board of directors or executive committee or a trust
committee of directors or trustees and/or responsible officers shall determine
that the action or proceedings so directed would involve the Trustee in
personal liability.
Prior to any declaration accelerating the maturity of the Securities
of any series, the holders of a majority in aggregate principal amount of the
Securities of such series at the time outstanding may on behalf of the Holders
of all of the Securities of such series waive any past default or Event of
Default hereunder and its consequences except a default in the payment of
principal of (premium, if any) or interest, if any, or Additional Amounts, if
any, on any Securities of such series or in respect of a covenant or provision
hereof which may not be modified or amended without the consent of the Holders
of each outstanding Security of such series affected. Upon any such waiver the
Issuer, the Trustee and the Holders of the Securities of such series shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon. Whenever any default or Event of
Default hereunder shall have been waived as permitted by this Section 7.06,
said default or Event of Default shall for all purposes of the Securities of
such series and this Indenture be deemed to have been cured and to be not
continuing.
SECTION 7.07. Notice of Defaults. The Trustee shall, within ninety
days after the occurrence of a default with respect to the Securities of any
series, give
43
notice of all defaults with respect to that series known to the Trustee (i) if
any Unregistered Securities of that series are then outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York (and, if required by Section 5.04, at least
once in an Authorized Newspaper in Luxembourg), (ii) if any Unregistered
Securities of that series are then outstanding, to all Holders thereof who have
filed their names and addresses with the Trustee as described in Section 6.04,
by mailing such notice to such Holders at such addresses and (iii) to all
Holders of then outstanding Registered Securities of that series, by mailing
such notice to such Holders at their addresses as they shall appear on the
Security Register, unless in each case such defaults shall have been cured
before the mailing or publication of such notice (the term "defaults" for the
purpose of this Section being hereby defined to be the events specified in
Sections 7.01(a), 7.01(b), 7.01(c), 7.01(d) and 7.01(e) and any additional
events specified in the terms of any series of Securities pursuant to Section
2.01, not including periods of grace, if any, provided for therein, and
irrespective of the giving of written notice specified in Section 7.01(c) or in
the terms of any Securities established pursuant to Section 2.01); and provided
that, except in the case of default in the payment of the principal of
(premium, if any), interest, if any, or Additional Amounts, if any, on any of
the Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee,
or a trust committee of directors or responsible officers of the Trustee in
good faith determines that the withholding of such notice is in the interests
of the Holders of the Securities of such series.
SECTION 7.08. Undertaking to Pay Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any
Securityholders of any series, or group of such Securityholders, holding in the
aggregate more than ten percent in aggregate principal amount of all Securities
(voting as one class), or to any suit instituted by any Securityholders for the
enforcement of the payment of the principal of (or premium, if any), interest,
if any, or Additional Amounts, if any on any Security on or after the due date
expressed in such Security.
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ARTICLE 8
CONCERNING THE TRUSTEE
SECTION 8.01. Duties and Responsibilities of Trustee. The Trustee,
prior to the occurrence of an Event of Default of a particular series and after
the curing of all Events of Default of such series which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to a
particular series has occurred (which has not been cured) 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.
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:
(a) prior to the occurrence of an Event of Default with respect to a
particular series and after the curing of all Events of Default with respect to
such series which may have occurred:
(i) the duties and obligations of the Trustees with respect to
such series shall be determined solely by the express provisions of
this Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
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 hereof 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) the Trustee shall not be liable for any error of judgment made in
good faith by a responsible officer or officers, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts; and
45
(c) 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 Securities pursuant to Section 7.06 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.
No provision of this Indenture shall be construed as requiring the
Trustee to expend or risk its own funds or otherwise to incur any personal
financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if there shall be reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
SECTION 8.02. Reliance on Documents, Opinions, Etc. Subject to the
provisions of Section 8.01:
(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, consent, order, bond, debenture, note, Coupon
or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer or the
Guarantor, as the case may be, mentioned herein shall be sufficiently evidenced
by an instrument signed in the name of the Issuer or the Guarantor, as the case
may be, by the Chairman of the Board of Directors or any Vice Chairman of the
Board of Directors or the President or any Executive Vice President or any
Senior Vice President or any Vice President or the Treasurer and by the
Secretary or any Assistant Secretary or, if the other signatory is other than
the Treasurer, any Assistant Treasurer (unless other evidence in respect
thereof be herein specifically prescribed); and a Board Resolution of the
Issuer or the Guarantor may be evidenced to the Trustee by a copy thereof
certified by the Secretary or any Assistant Secretary of the Issuer or the
Guarantor, as the case may be;
(c) the Trustee may consult with counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered by it hereunder in good faith and in accordance with
such Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity
46
against the costs, expenses, and liabilities which might be incurred therein or
thereby;
(e) 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, coupon or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Issuer, personally or by agent or attorney;
(f) 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, provided, however, that the Trustee shall be responsible for any
misconduct or negligence on the part of any agent or attorney appointed by it
hereunder; and
(g) the Trustee shall not be liable for any action taken by it in good
faith and believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
SECTION 8.03. No Responsibility for Recitals, Etc. The recitals
contained herein and in the Securities and the Guarantees, other than the
Trustee's certificate of authentication, shall be taken as the statements of
the Issuer or the Guarantor, as the case may be, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or of the Guarantees, provided that the Trustee shall be relieved of
its duty to authenticate Securities or Guarantees only as authorized by this
Indenture. The Trustee shall not be accountable for the use or application by
the Issuer of Securities or the proceeds thereof.
SECTION 8.04. Ownership of Securities or Coupons. The Trustee or any
agent of the Issuer, the Guarantor or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities or Coupons with
the same rights it would have if it were not Trustee, or an agent of the
Issuer, the Guarantor or the Trustee.
SECTION 8.05. Moneys to Be Held in Trust. Subject to the provisions of
Section 13.04 hereof, all moneys received by the Trustee or any paying agent
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received but need not be segregated from other
funds except to the extent required by law. Neither the Trustee nor any paying
agent or agent of
47
the Issuer or the Guarantor shall be under any liability for interest on any
moneys received by it hereunder except such as it may agree with the Issuer to
pay thereon. So long as no Event of Default shall have occurred and be
continuing, all interest allowed on any such moneys shall be paid from time to
time upon the written order of the Issuer, signed by its Chairman of the Board
of Directors or any Vice Chairman of the Board of Directors or its President or
any Executive Vice President or any Senior Vice President or any Vice President
or its Treasurer or any Assistant Treasurer.
SECTION 8.06. Compensation and Expenses of Trustee. The Issuer
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation, and, except as otherwise
expressly provided the Issuer will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation, expenses and disbursements of its
counsel and of all persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
If any property other than cash shall at any time be subject to the lien of
this Indenture, the Trustee, if and to the extent authorized by a receivership
or bankruptcy court of competent jurisdiction or by the supplemental instrument
subjecting such property to such lien, shall be entitled to make advances for
the purpose of preserving such property or of discharging tax liens or other
prior liens or encumbrances hereon. The Issuer also covenants to indemnify the
Trustee for, and to hold it harmless against, any loss, liability or reasonable
expense incurred without negligence or bad faith on the part of the Trustee,
arising out of or in connection with the acceptance or administration of this
trust, including the reasonable costs and expenses of defending itself against
any claim of liability in the premises. The obligations of the Issuer under
this Section to compensate the Trustee and to pay or reimburse the Trustee for
reasonable expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be secured by a lien
prior to that of the Securities upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the benefit of the
Holders of particular Securities or Coupons.
SECTION 8.07. Officers' Certificate as Evidence. Subject to the
provisions of Section 8.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering any action to be taken
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate of the Issuer or the Guarantor delivered to the Trustee,
and such
48
Certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 8.08. Conflicting Interest of Trustee. (a) The Trustee shall
comply with Section 310(b) of the Trust Indenture Act of 1939.
[(b) The Indenture dated as of December 7, 1995, between the Guarantor
and Citibank, N.A. shall be deemed to be specifically described herein for
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act of 1939.]
SECTION 8.09. Eligibility of Trustee. There shall at all times be a
trustee hereunder which shall be a corporation organized and doing business
under the laws of the United States or of any State or Territory thereof or of
the District of Columbia, which (a) is authorized under such laws to exercise
corporate trust powers and (b) is subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority and (c) shall
have at all times a combined capital and surplus of not less than twenty-five
million dollars. If such corporation publishes reports of condition at least
annually, pursuant to law, or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation at any time shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 8.10.
SECTION 8.10. Resignation or Removal of Trustee. (a) The Trustee, or
any trustee or trustees hereafter appointed, may, upon sixty days written
notice to the Issuer and the Guarantor, at any time resign with respect to one
or more or all series by giving written notice of resignation to the Issuer and
the Guarantor (i) if any Unregistered Securities of a series affected are then
outstanding, by giving notice of such resignation to the Holders thereof, by
publication at least once in an Authorized Newspaper in London (and, if
required by Section 5.04, at least once in an Authorized Newspaper in
Luxembourg), (ii) if any Unregistered Securities of a series affected are then
outstanding, by mailing notice of such resignation to the Holders thereof who
have filed their names and addresses with the Trustee as described in Section
6.04 at such addresses as were so furnished to the Trustee and (iii) by mailing
notice of such resignation to the Holders of then outstanding Registered
Securities of each series affected at their addresses as they shall appear on
the Security Register. Upon receiving such notice of resignation the Issuer and
the Guarantor shall promptly appoint a successor trustee with respect to the
49
applicable series by written instrument, in duplicate, executed by order of the
Board of Directors of the Issuer and the Guarantor, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within thirty days after the mailing of such notice
of resignation to the Securityholders, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Securityholder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, subject to the provisions
of Section 7.08, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur: (i) the
Trustee shall fail to comply with the provisions of subsection 8.08(a) with
respect to any series of Securities after written request therefor by the
Issuer, the Guarantor or by any Securityholder who has been a bona fide Holder
of a Security or Securities of such series for at least six months, or
(ii) the Trustee shall cease to be eligible in accordance with
the provision of Section 8.09 with respect to any series of
Securities and shall fail to resign after written request therefor by
the Issuer, the Guarantor or by any such Securityholder, or
(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case,
the Issuer and the Guarantor may remove the Trustee with respect to
the applicable series of Securities and appoint a successor trustee
with respect to such series by written instrument, in duplicate,
executed by order of the Board of Directors of the Issuer and the
Guarantor, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject
to the provisions of Section 7.08, any Securityholder of such series
who has been a bona fide Holder of a Security or Securities of the
applicable series for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
50
(c) The Holders of a majority in aggregate principal amount of the
Securities of all series (voting as one class) at the time outstanding may at
any time remove the Trustee with respect to Securities of all series and
appoint a successor trustee with respect to the Securities of all series.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 8.11.
SECTION 8.11. Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 8.10 shall execute, acknowledge and deliver to
the Issuer, the Guarantor and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor trustee with respect to all or any applicable series shall
become effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as trustee herein; but, nevertheless, on the
written request of the Issuer, the Guarantor or of the successor trustee, the
trustee ceasing to act shall, upon payment of any amounts then due it pursuant
to the provisions of Section 8.06, execute and deliver an instrument
transferring to such successor trustee all the rights and powers of the trustee
so ceasing to act. Upon request of any such successor trustee, the Issuer and
the Guarantor shall execute any and all instruments in writing in order more
fully and certainly to vest in and confirm to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain a
lien upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 8.06.
In case of the appointment hereunder of a successor trustee with
respect to the Securities of one or more (but not all) series, the Issuer, the
Guarantor, the predecessor Trustee and each successor trustee with respect to
the Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the predecessor Trustee with respect to the Securities of any series
as to which the predecessor Trustee is not retiring shall continue to be vested
in the predecessor Trustee, and shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that each such
51
trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such trustee.
No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 8.08 and eligible under the
provisions of Section 8.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section, the Issuer shall give notice of the succession of such trustee
hereunder (a) if any Unregistered Securities of a series affected are then
outstanding, to the Holders thereof, by publication of such notice at least
once in an Authorized Newspaper in the Borough of Manhattan, The City of New
York and at least once in an Authorized Newspaper in London (and, if required
by Section 5.04, at least once in an Authorized Newspaper in Luxembourg), (b)
if any Unregistered Securities of a series affected are then outstanding, to
the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 6.04, by mailing such notice to such Holders at such
addresses as were so furnished to the Trustee (and the Trustee shall make such
information available to the Issuer for such purpose) and (c) to the Holders of
Registered Securities of each series affected, by mailing such notice to such
Holders at their addresses as they shall appear on the Security Register. If
the Issuer fails to mail such notice in the prescribed manner within ten days
after the acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be so given at the expense of the Issuer.
SECTION 8.12. Successor by Merger, Etc. Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified under the provisions of Section
8.08 and eligible under the provisions of Section 8.09, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
SECTION 8.13. Limitations on Rights of Trustee as Creditor. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act of 1939.
52
ARTICLE 9
CONCERNING THE SECURITYHOLDERS
SECTION 9.01. Action by Securityholders. Whenever in this Indenture it
is provided that the Holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including
the making of any demand or request, the giving of any notice, consent or
waiver or the taking of any other action), the fact that at the time of taking
any such action the Holders of such specified percentage have joined therein
may be evidenced (a) by any instrument or any number of instruments of similar
tenor executed by Securityholders in person or by agent or proxy appointed in
writing, or (b) by the record of the Holders of Securities voting in favor
thereof at any meeting of Securityholders duly called and held in accordance
with the provisions of Article Ten, or (c) by a combination of such instrument
or instruments and any such record of such a meeting of Securityholders. In
determining whether the Holders of a specified percentage in aggregate
principal amount of the Securities have taken any action (including the making
of any demand or request, the waiving of any notice, consent or waiver or the
taking of any other action), the principal amount of any Original Issue
Discount Security that may be counted in making such determination and that
shall be deemed to be outstanding for such purposes shall be equal to the
amount of the principal thereof that could be declared to be due and payable
upon an Event of Default pursuant to the terms of such Original Issue Discount
Security at the time the taking of such action is evidenced to the Trustee.
SECTION 9.02. Proof of Execution by Securityholders. Subject to the
provisions of Sections 8.01, 8.02 and 10.05, proof of the execution of any
instrument by a Securityholder or its agent or proxy shall be sufficient if
made in the following manner:
(a) In the case of Holders of Unregistered Securities, the fact and
date of the execution by any such person of any instrument may be proved by the
certificate of any notary public or other officer of any jurisdiction
authorized to take acknowledgments of deeds or administer oaths that the person
executing such instruments acknowledged to him the execution thereof or by an
affidavit of a witness to such execution sworn to before any such notary or
other such officer. Where such execution is by or on behalf of any legal entity
other than an individual, such certificate or affidavit shall also constitute
sufficient proof of the authority of the person executing the same. The fact of
the holding by any Holder of a Security of any series, and the identifying
number of such Security and the date of his holding the same, may be proved by
the production of such Security or by a certificate executed by any trust
company, bank, banker or recognized securities dealer wherever situated
satisfactory to the Trustee, if such certificate
53
shall be deemed by the Trustee to be satisfactory. Each such certificate shall
be dated and shall state that on the date thereof a Security of such series
bearing a specified identifying number was deposited with or exhibited to such
trust company, bank, banker or recognized securities dealer by the person named
in such certificate. Any such certificate may be issued in respect of one or
more Securities of one or more series specified therein. The holding by the
person named in any such certificate of any Securities of any series specified
therein shall be presumed to continue for a period of one year from the date of
such certificate unless at the time of any determination of such holding (1)
another certificate bearing a later date issued in respect of the same
Securities shall be produced, or (2) the Security of such series specified in
such certificate shall be produced by some other person, or (3) the Security of
such series specified in such certificates shall have ceased to be outstanding.
Subject to Sections 8.01, 8.02 and 10.05, the fact and date of the execution of
any such instrument and the amount and numbers of Securities of any series held
by the person so executing such instrument and the amount and numbers of any
Security or Securities for such series may also be proven in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee for
such series or in any other manner which the Trustee for such series may deem
sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security Register or by a certificate of the
Security Registrar.
SECTION 9.03. Who Are Deemed Absolute Owners. The Issuer, the
Guarantor, the Trustee, any paying agent, any transfer agent and any Security
Registrar may treat the Holder of any Unregistered Security and the Holder of
any Coupon as the absolute owner of such Unregistered Security or Coupon
(whether or not such Unregistered Security or Coupon shall be overdue) for the
purpose of receiving payment thereof or on account thereof and for all other
purposes and the Issuer, the Guarantor, the Trustee, any paying agent, any
transfer agent and any Security Registrar shall not be affected by any notice
to the contrary. The Issuer, the Guarantor, the Trustee, any paying agent, any
transfer agent and any Security Registrar may, subject to Section 2.04 hereof,
treat the person in whose name a Registered Security shall be registered upon
the Security Register as the absolute owner of such Registered Security
(whether or not such Registered Security shall be overdue) for the purpose of
receiving payment thereof or on account thereof and for all other purposes and
the Issuer, the Guarantor, the Trustee, any paying agent, any transfer agent
and any Security Registrar shall not be affected by any notice to the contrary.
SECTION 9.04. Corporation or Guarantor Owned Securities Disregarded.
In determining whether the Holders of the required aggregate principal amount of
54
Securities have concurred in any direction, consent or waiver under this
Indenture, Securities which are owned by the Issuer or Guarantor or by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or Guarantor, shall be disregarded and
deemed not to be outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver only Securities which the
Trustee knows are so owned shall be disregarded. Securities so owned which have
been pledged in good faith may be regarded as outstanding for the purposes of
this Section if the pledgee shall establish to the satisfaction of the Trustee
the pledgee's right to vote such Securities and that the pledgee is not a
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or Guarantor. In the case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
SECTION 9.05. Revocation of Consents; Future Securityholders Bound. At
any time prior to the taking of any action by the Holders of the percentage in
aggregate principal amount of the Securities specified in this Indenture in
connection with such action, any Holder of a Security the identifying number of
which is shown by the evidence to be included in the Securities the Holders of
which have consented to such action may, by filing written notice with the
Trustee at its office and upon proof of holding as provided in Section 9.02,
revoke such action so far as concerns such Security. Except as aforesaid any
such action taken by the Holder of any Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Security and of
any Security issued in exchange or substitution therefor irrespective of
whether or not any notation in regard thereto is made upon such Security. Any
action taken by the Holders of the percentage in aggregate principal amount of
the Securities specified in this Indenture in connection with such action shall
be conclusively binding upon the Issuer, the Guarantor, the Trustee and the
Holders of all the Securities of each series intended to be affected thereby.
SECTION 9.06. Securities in a Foreign Currency. Unless otherwise
specified in an Officers' Certificate delivered pursuant to Section 2.01 of
this Indenture with respect to a particular series of Securities, on any day
when for purposes of this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of two or more series of
outstanding Securities and, at such time, there are outstanding Securities of
at least one such series which are denominated in a coin or currency other than
that of at least one other such series, then the principal amount of Securities
of each such series (other than any such series denominated in U.S. Dollars)
which shall be deemed to be outstanding for the purpose of taking such action
shall be that amount of U.S. Dollars that could be obtained for such amount at
the Market Exchange
55
Rate. For purposes of this Section 9.06, Market Exchange Rate shall mean the
noon U.S. Dollar buying rate for that currency for cable transfers quoted in
The City of New York on such day as certified for customs purposes by the
Federal Reserve Bank of New York. If such Market Exchange Rate is not available
for any reason with respect to such currency, the Issuer shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York, as of the most recent available date. The provisions
of this paragraph shall apply in determining the equivalent number of votes
which each Securityholder or proxy shall be entitled to pursuant to Section
10.05 in respect of Securities of a series denominated in a currency other than
U.S. Dollars.
All decisions and determinations of the Issuer regarding the Market
Exchange Rate shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Issuer and all Holders.
ARTICLE 10
SECURITYHOLDERS' MEETINGS
SECTION 10.01. Purposes of Meetings. A meeting of Securityholders of
any or all series may be called at any time and from time to time pursuant to
the provisions of this Article for any of the following purposes:
(a) to give any notice to the Issuer, the Guarantor or to the Trustee,
or to give any directions to the Trustee, or to waive any default hereunder and
its consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article Seven;
(b) to remove the Trustee and appoint a successor trustee pursuant to
the provisions of Article Eight;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(d) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Securities of
any or all series, as the case may be, under any other provision of this
Indenture or under applicable law.
SECTION 10.02. Call of Meetings by Trustee. The Trustee may at any
time call a meeting of Holders of Securities of any or all series to take any
action
56
specified in Section 10.01, 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 the Holders of Securities of any or all
series, setting forth the time and place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be given (a) if any
Unregistered Securities of a series that may be affected by the action proposed
to be taken at such meeting are then outstanding, to all Holders thereof, by
publication at least twice in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least twice in an Authorized Newspaper
in London (and, if required by Section 5.04, at least twice in an Authorized
Newspaper in Luxembourg) prior to the date fixed for the meeting, the first
publication, in each case, to be not less than twenty nor more than one hundred
eighty days prior to the date fixed for the meeting and the last publication to
be not more than five days prior to the date fixed for the meeting, (b) if any
Unregistered Securities of a series that may be affected by the action proposed
to be taken at such meeting are then outstanding, to all Holders thereof who
have filed their names and addresses with the Trustee as described in Section
6.04, by mailing such notice to such Holders at such addresses, not less than
twenty nor more than one hundred eighty days prior to the date fixed for the
meeting and (c) to all Holders of then outstanding Registered Securities of
each series that may be affected by the action proposed to be taken at such
meeting, by mailing such notice to such Holders at their addresses as they
shall appear on the Security Register, not less than twenty nor more than one
hundred eighty days prior to the date fixed for the meeting. Failure of any
Holder or Holders to receive such notice or any defect therein shall in no case
affect the validity of any action taken at such meeting. Any meeting of Holders
of Securities of all or any series shall be valid without notice if the Holders
of all such Securities outstanding, the Issuer, the Guarantor and the Trustee
are present in person or by proxy or shall have waived notice thereof before or
after the meeting. The Trustee may fix, in advance, a date as the record date
for determining the holders entitled to notice of or to vote at any such
meeting at not less than twenty or more than one hundred eighty days prior to
the date fixed for such meeting.
SECTION 10.03. Call of Meetings by Issuer, Guarantor or
Securityholders. In case at any time the Issuer or Guarantor, pursuant to a
Board Resolution, or the Holders of at least ten percent in aggregate principal
amount of the Securities of any or all series, as the case may be, then
outstanding, shall have requested the Trustee to call a meeting of
Securityholders of any or all series to take any action authorized in Section
10.01, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed or
published as provided in Section 10.02, the notice of such meeting within
thirty days after receipt of such request, then the Issuer, the Guarantor or
the Holders of such Securities in the amount above specified may determine the
57
time and the place in said Borough of Manhattan or London for such meeting and
may call such meeting to take any action authorized in Section 10.01, by
mailing notice thereof as provided in Section 10.02.
SECTION 10.04. Qualification for Voting. To be entitled to vote at any
meeting of Securityholders a person shall be a Holder of one or more Securities
of a series with respect to which a meeting is being held or a person appointed
by an instrument in writing as proxy by such a Holder. The only persons who
shall be entitled to be present or to speak at any meeting of the
Securityholders shall be the persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Issuer or Guarantor and their counsel.
SECTION 10.05. Regulations. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof of the holding
of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Issuer, the Guarantor or by Securityholders as provided in Section 10.03, in
which case the Issuer, the Guarantor or the Securityholder calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Holders of a majority in principal amount of the Securities
represented at the meeting and entitled to vote.
Subject to the provisions of Sections 9.01 and 9.04, at any meeting
each Securityholder or proxy shall be entitled to one vote for each U.S.$1,000
principal amount of Securities 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 not to
be outstanding. The chairman of the meeting shall have no right to vote except
as a Securityholder or proxy. Any meeting of Securityholders duly called
pursuant to the provisions of Section 10.02 or 10.03 may be adjourned from time
to time, and the meeting may be held as so adjourned without further notice.
SECTION 10.06. Voting. The vote upon any resolution submitted to any
meeting of Securityholders shall be by written ballot on which shall be
subscribed the signatures of the Securityholders or proxies and on which shall
be inscribed
58
the identifying number or numbers or to which shall be attached a list of
identifying numbers of the Securities 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 reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavit by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
mailed as provided in Section 10.02. The record shall be signed and verified by
the permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Issuer, the Guarantor and 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 11
SUPPLEMENTAL INDENTURES
SECTION 11.01. Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by Board Resolution, and the
Guarantor when authorized by a Board Resolution, and the Trustee may from time
to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of
1939) for one or more of the following purposes:
(a) to evidence the succession of another corporation to the Issuer
or to the Guarantor, or successive successions, and the assumption by any
successor corporation of the covenants, agreements and obligations of the
Issuer or the Guarantor, pursuant to Article Twelve hereof;
(b) to add to the covenants of the Issuer or of the Guarantor such
further covenants, restrictions, conditions or provisions as the Board of
Directors of the Issuer and the Board of Directors of the Guarantor, as the
case may be, and the Trustee shall consider to be for the protection of the
Holders of Securities of any or all series, or the Coupons appertaining to such
Securities, and to make the occurrence, or the occurrence and continuance, of a
default in any of such additional covenants, restrictions, conditions or
provisions a default or an Event of
59
Default with respect to any or all series permitting the enforcement of all or
any of the several remedies provided in this Indenture as herein set forth,
with such period of grace, if any, and subject to such conditions as such
supplemental indenture may provide;
(c) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
of any series in bearer form, registrable or not registrable as to principal,
and with or without interest Coupons, and to provide for exchangeability of
such Securities with Securities issued hereunder in fully registered form and
to make all appropriate changes for such purpose, and to add or change any of
the provisions of this Indenture to such extent as shall be necessary to permit
or facilitate the issuance of uncertificated Securities of any series;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture; to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee; or to make such other provisions in regard to matters or
questions arising under this Indenture as shall not adversely affect the
interests of the Holders of any series of Securities or any Coupons
appertaining to such Securities;
(e) to evidence and provide for the acceptance and appointment
hereunder by a successor trustee with respect to the Securities of one or more
series and to add or change any provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to Section 8.11;
(f) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.03; and
(g) to change or eliminate any provision of this Indenture, provided
that any such change or elimination (i) shall become effective only when there
is no Security outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision or
(ii) shall not apply to any Security outstanding.
The Trustee is hereby authorized to join with the Issuer and the
Guarantor in the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into any
such
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supplemental indenture which adversely affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Issuer, the Guarantor and the Trustee without
the consent of the Holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 11.02.
SECTION 11.02. Supplemental Indentures with Consent of
Securityholders. With the consent (evidenced as provided in Section 9.01) of
the Holders of not less than a majority in the aggregate principal amount of
the Securities of all series at the time outstanding affected by such
supplemental indenture (voting as one class), the Issuer, when authorized by a
Board Resolution, and the Guarantor, when authorized by Board Resolution, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indentures or modifying in any manner the rights of the
Holders of the Securities of each such series or any Coupons appertaining to
such Securities; provided, however, that no such supplemental indenture shall
(i) change the fixed maturity of any Securities, or reduce the principal amount
thereof (or premium, if any), or reduce the rate or extend the time of payment
of any interest or Additional Amounts thereon or reduce the amount due and
payable upon acceleration of the maturity thereof or the amount provable in
bankruptcy, or make the principal of (premium, if any) or interest, if any, or
Additional Amounts, if any, on any Security payable in any coin or currency
other than that provided in such Security, (ii) 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
therefor) or (iii) reduce the aforesaid percentage of Securities, the consent
of the Holders of which is required for any such supplemental indenture, or the
percentage required for the consent of the Holders pursuant to Section 7.01 to
waive defaults, without the consent of the Holder of each Security so affected.
Upon the request of (i) the Issuer, accompanied by a copy of a Board
Resolution certified by the Secretary or an Assistant Secretary of the Issuer
and (ii) the Guarantor, accompanied by a copy of a Board Resolution certified
by the Secretary or an Assistant Secretary of the Guarantor, authorizing, in
each case, the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Issuer and the Guarantor in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee
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may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution and delivery by the Issuer, the Guarantor
and the Trustee of any supplemental indenture pursuant to the provisions of
this Section, the Trustee shall give notice of such supplemental indenture (i)
to the Holders of then outstanding Registered Securities of each series
affected thereby, by mailing a notice thereof by first-class mail to such
Holders at their addresses as they shall appear on the Security Register, (ii)
if any Unregistered Securities of a series affected thereby are then
outstanding, to the Holders thereof who have filed their names and addresses
with the Trustee as described in Section 6.04, by mailing a notice thereof by
first-class mail to such Holders at such addresses as were so furnished to the
Trustee and (iii) if any Unregistered Securities of a series affected thereby
are then outstanding, to all Holders thereof, if by publication of a notice
thereof at least once in an Authorized Newspaper in London (and, if required by
Section 5.04, at least once in an Authorized Newspaper in Luxembourg), and in
each case such notice shall set forth in general terms the substance of such
supplemental indenture. Any failure of the Issuer to mail or publish such
notice, or any defect therein, shall not, however in any way impair or affect
the validity of any such supplemental indenture.
SECTION 11.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures. Any supplemental indenture executed pursuant to the
provisions of this Article Eleven shall comply with the Trust Indenture Act of
1939. Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Eleven, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Issuer, the Guarantor and the Holders of Securities shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 8.01 and 8.02, may
receive an Opinion of Counsel as conclusive evidence that any such supplemental
indenture complies with the provisions of this Article Eleven.
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SECTION 11.04. Notation on Securities. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provision of this Article Eleven may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. New Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors of the Issuer and the Board
of Directors of the Guarantor, to any modification of this Indenture contained
in any such supplemental indenture may be prepared by the Issuer, shall have
the Guarantees endorsed thereon, shall be authenticated by the Trustee and
delivered, without charge to the Securityholders, in exchange for the
Securities of such series then outstanding.
ARTICLE 12
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 12.01. Issuer May Consolidate, Etc., on Certain Terms. (a) The
Issuer covenants that it will not merge or consolidate with any other
corporation or sell or convey all or substantially all of its assets to any
person, firm or corporation, unless (i) either the Issuer shall be the
continuing corporation, or the successor corporation (which may be the
Guarantor) shall be a corporation organized and existing under the laws of the
United States of America or Canada or a state or province thereof, as the case
may be, and such corporation shall expressly assume the due and punctual
payment of the principal of (and premium, if any), interest, if any, and
Additional Amounts, if any, on all the Securities and any Coupons, according to
their tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Issuer by
supplemental indenture satisfactory to the Trustee, executed and delivered to
the Trustee by such corporation, (ii) if such successor corporation is not the
Guarantor, the Guarantor shall unconditionally guarantee any amounts payable
pursuant to obligations assumed under subclause 12.01(a)(i) above and (iii) the
Issuer or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale or conveyance, be
in default in the performance of any such covenant or condition.
(b) The Guarantor, or any wholly-owned subsidiary of the Guarantor
organized and existing under the laws of the United States of America or Canada
or a state or province thereof, as the case may be, may, without merging or
consolidating with or acquiring all or substantially all of the assets of the
Issuer, assume the due and punctual payment of the principal of (including any
amount in respect of original issue discount), and any interest and any
Additional Amounts on all the Securities, according to their tenor, and the due
and punctual
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performance of all of the covenants and obligations of the Issuer under the
Securities and, by supplemental indenture satisfactory to the Trustee, executed
and delivered to the Trustee by the Guarantor, provided that (i) if such
successor corporation is not the Guarantor, the Guarantor shall unconditionally
guarantee any amounts payable pursuant to obligations assumed under clause
12.01(b), (ii) the Trustee shall have received the documentation required by
this Section 12.01(b), (iii) such successor corporation shall not, immediately
after such assumption, be in default in the performance of any covenants or
obligations of the Issuer under the Securities of this Indenture, and (iv) the
Guarantor has delivered to the Trustee an Opinion of Counsel stating that (A)
the Guarantor has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm that, the
holders of the outstanding Securities and any related Coupons will not
recognize income, gain or loss for Federal income tax purposes as a result of
such assumption and will be subject to Federal income tax on the same amounts
and in the same manner and at the same times, as would have been the case if
such assumption had not occurred.
SECTION 12.02. Successor Corporation Substituted. In case of any such
consolidation, merger, sale or conveyance and upon any such assumption by the
successor corporation, such successor corporation shall succeed to and be
substituted for the Issuer, with the same effect as if it had been named herein
as the party of the first part. Such successor corporation thereupon may cause
to be signed, and may issue either in its own name or in the name of General
Motors Nova Scotia Finance Company, any or all of the Securities, and any
Coupons appertaining thereto, issuable hereunder which theretofore shall not
have been signed by the Issuer and delivered to the Trustee; and, upon the
order of such successor corporation, instead of the Issuer, and subject to all
the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities or Coupons which previously
shall have been signed and delivered by the officers of the Issuer to the
Trustee for authentication, having the Guarantees endorsed thereon and any
Securities or Coupons which such successor corporation thereafter shall cause
to be signed and delivered, with the Guarantees of the Guarantor endorsed
thereon, to the Trustee for that purpose. All of the Securities, and any
Coupons appertaining thereto, so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities or Coupons
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities, and any Coupons appertaining thereto, had
been issued at the date of the execution hereof.
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In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Securities and Coupons thereafter to be issued as may be appropriate.
SECTION 12.03. Merger, Consolidation or Sale of Assets by the
Guarantor. The Guarantor covenants that it will not merge or consolidate with
any other corporation or sell or convey all or substantially all of its assets
to any person, firm or corporation, unless (i) the successor or continuing
corporation, or the successor person, firm or corporation, as the case may be,
expressly assumes the due and punctual performance of the Guarantees, and the
due and punctual performance and observance of all of the covenants and
conditions of this Indenture and the Securities and the Guarantee to be
performed by the Guarantor by supplemental indenture satisfactory to the
Trustee, executed and delivered to the Trustee by such corporation, and (ii)
such successor corporation, shall not immediately after such merger or
consolidation, or such sale, conveyance or lease, be in default in the
performance of any such covenant or condition.
SECTION 12.04. Successor Corporation to the Guarantor. In the case of
any such consolidation, merger, sale or conveyance and upon any such assumption
of the obligations and covenants under the Guarantees and this Indenture by the
successor corporation, such successor corporation shall succeed to and be
substituted for the Guarantor, with the same effect as if it had been named
herein and in each of the Guarantees endorsed upon the Securities as the
Guarantor, the Guarantor shall thereupon be relieved of any further obligation
or liability hereunder or upon the Securities; the Guarantor as the predecessor
corporation may thereupon or at any time thereafter be dissolved, wound up or
liquidated; and such changes in phraseology and form (but not in substance) may
be made in the Guarantees endorsed on the Securities thereafter to be issued as
may be appropriate.
SECTION 12.05. Opinion of Counsel to Be Given Trustee. The Trustee,
subject to the provisions of Sections 8.01 and 8.02, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article Twelve.
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ARTICLE 13
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 13.01. Discharge of Indenture . If at any time (a) the Issuer
or the Guarantor shall have delivered to the Trustee for cancellation all
Securities of any series theretofore authenticated (other than any Securities
of such series and Coupons appertaining thereto which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.06) or (b) all such Securities of such series and any
Coupons appertaining to such Securities not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Issuer or the Guarantor shall
deposit or cause to be deposited with the Trustee as trust funds the entire
amount (other than moneys repaid by the Trustee or any paying agent to the
Issuer in accordance with Section 13.04) sufficient to pay at maturity or upon
redemption all Securities of such series and all Coupons appertaining to such
Securities not theretofore delivered to the Trustee for cancellation, including
principal (and premium, if any), interest, if any, and Additional Amounts, if
any, due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if in either case the Issuer shall also pay
or cause to be paid all other sums payable hereunder by the Issuer with respect
to such series, then this Indenture shall cease to be of further effect with
respect to the Securities of such series or any Coupons appertaining to such
Securities, and the Trustee, on demand of and at the cost and expense of the
Issuer and subject to Section 15.04, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to
the Securities of such series and all Coupons appertaining to such Securities.
Each of the Issuer and the Guarantor agrees to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Securities of such series or any Coupons
appertaining to such Securities.
SECTION 13.02. Satisfaction, Discharge and Defeasance of Securities of
Any Series. If pursuant to Section 2.01 provision is made for the defeasance of
Securities of a series, then the provisions of this Section 13.02 shall be
applicable except as otherwise specified as contemplated by Section 13.04 for
Securities of such series. At the Issuer or the Guarantor's option, either (a)
the Issuer and the Guarantor shall be deemed to have paid and discharged the
entire indebtedness on all the outstanding Securities of any such series and
the Trustee, at the expense of the Issuer or the Guarantor, shall execute
proper instruments acknowledging satisfaction and discharge of such
indebtedness or (b) the Issuer and the Guarantor shall cease to be under any
obligation to comply with any term, provision, condition or covenant specified
as contemplated by Section 2.01, when
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(i) either
(A) with respect to all outstanding Securities of such
series,
(1) the Issuer or the Guarantor has deposited
or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount (in such
currency in which such outstanding Securities and
any related Coupons are then specified as payable at
stated maturity) sufficient to pay and discharge the
entire indebtedness of all outstanding Securities of
such series for principal (and premium, if any),
interest, if any, and Additional Amounts, if any, to
the stated maturity or any redemption date as
contemplated by the last paragraph of this Section
13.02, as the case may be; or
(2) the Issuer or the Guarantor has deposited
or caused to be deposited with the Trustee as
obligations in trust for the purpose such amount of
direct noncallable obligations of, or noncallable
obligations the payment of principal of and interest
on which is fully guaranteed by, the United States
of America, or to the payment of which obligations
or guarantees the full faith and credit of the
United States of America is pledged, maturing as to
principal and interest in such amounts and at such
times as will, together with the income to accrue
thereon (but without reinvesting any proceeds
thereof), be sufficient to pay and discharge the
entire indebtedness on all outstanding Securities of
such series for principal (and premium, if any),
interest, if any, and Additional Amounts, if any, to
the stated maturity or any redemption date as
contemplated by the last paragraph of this Section
13.02, as the case may be; or
(B) the Issuer and the Guarantor has properly fulfilled
such other terms and conditions to the satisfaction and
discharge as is specified, as contemplated by Section 2.01,
as applicable to the Securities of such series; and
(ii) the Issuer or the Guarantor has paid or caused to be paid
all other sums payable with respect to the outstanding Securities of
such series; and
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(iii) the Issuer or the Guarantor has delivered to the Trustee
an Opinion of Counsel stating that (A) the Issuer has received from,
or there has been published by, the Internal Revenue Service a ruling
or (B) since the date of execution of this Indenture, there has been
a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that,
the holders of the outstanding Securities and any related Coupons
will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit, defeasance and discharge and
will be subject to Federal income tax on the same amounts and in the
same manner and at the same times, as would have been the case if
such deposit, defeasance and discharge had not occurred; and
(iv) the Issuer or the Guarantor 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 of any such series have been complied with.
Any deposits with the Trustee referred to in Section 13.02(b)(i)(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 of such series are to be redeemed prior to their stated maturity,
whether pursuant to any optional redemption provisions or in accordance with
any mandatory sinking fund requirement or otherwise, the applicable escrow
trust agreement shall provide therefor and the Issuer or the Guarantor shall
make such arrangements as are satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Issuer.
SECTION 13.03. Deposited Moneys to Be Held in Trust by Trustee. All
moneys deposited with the Trustee pursuant to Section 13.01 or 13.02 shall be
held in trust and applied by it to the payment, either directly or through any
paying agent (including the Issuer acting as its own paying agent), to the
Holders of the particular Securities and of any Coupons appertaining to such
Securities for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal (and premium, if any), interest, if any, and Additional Amounts, if
any.
SECTION 13.04. Paying Agent to Repay Moneys Held. In connection with
the satisfaction and discharge of this Indenture with respect to Securities of
any series all moneys with respect to such Securities then held by any paying
agent under the provisions of this Indenture shall, upon demand of the Issuer
or the
68
Guarantor, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 13.05. Return of Unclaimed Moneys. Any moneys deposited with
or paid to the Trustee or any paying agent for the payment of the principal of
(and premium, if any), interest, if any, and Additional Amounts, if any, on any
Security and not applied but remaining unclaimed for two years after the date
upon which such principal (and premium, if any), interest, if any, and
Additional Amounts, if any, shall have become due and payable, shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property law, be repaid to the Issuer by the Trustee or such
paying agent on demand, and the Holder of such Security or any Coupon
appertaining to such Security shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law,
thereafter look only to the Issuer for any payment which such Holder may be
entitled to collect and all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease; provided, however, that the
Trustee or such paying agent, before being required to make any such repayment
with respect to moneys deposited with it for any payment in respect of
Unregistered Securities of any series, may at the expense of the Issuer cause
to be published once, in an Authorized Newspaper in the Borough of Manhattan,
The City of New York and once in an Authorized Newspaper in London (and, if
required by Section 5.04, once in an Authorized Newspaper in Luxembourg),
notice that such moneys remain and that, after a date specified therein, which
shall not be less than thirty days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Issuer.
ARTICLE 14
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
SECTION 14.01. Indenture and Securities Solely Corporate Obligations.
No recourse under or upon any obligation, covenant or agreement contained in
this Indenture, or in any covenant or agreement contained in this Indenture, or
in any Security, or in any Guarantee, or because of any indebtedness evidenced
thereby, shall be had against any past, present or future incorporator,
stockholder, officer or director, as such, of the Issuer or the Guarantor or of
any successor of them, either directly or through the Issuer or the Guarantor
or any successor of them, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance
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of the Securities by the Holders thereof and as part of the consideration for
the issue of the Securities and Coupons.
ARTICLE 15
MISCELLANEOUS PROVISIONS
SECTION 15.01. Benefits of Indenture Restricted to Parties and
Securityholders. Nothing in this Indenture, the Guarantees or in the Securities
or Coupons, expressed or implied, shall give or be construed to give to any
person, firm or corporation, other than the parties hereto and their successors
and the Holders of the Securities or Coupons, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and of the Holders of the Securities or
Coupons.
SECTION 15.02. Provisions Binding on Issuer and Guarantor's
Successors. All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Issuer or the Guarantor shall bind
its successors and assigns, whether so expressed or not.
SECTION 15.03. Addresses for Notices, Etc. Any notice or demand which
by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the Holders of Securities to or on the Issuer may
be given or served by being deposited postage prepaid first class mail in a
post office letter box addressed (until another address is filed by the Issuer
with the Trustee), as follows: General Motors Nova Scotia Finance Company, 0000
Xxxxxxx Xxx Xxxxxx, Xxxxxx, XX X0X 0X0, with a copy to the Guarantor to the
attention of its Treasurer, and in case of the Guarantor, addressed (until
another address of the Guarantor is filed by the Guarantor with the Trustee) to
General Motors Corporation, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Any
notice, direction, request or demand by any Securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at its Corporate Trust Office, which is
at the date of this Indenture, [ ], except that for purposes of presentation of
Securities for payment or registration of transfer or exchange, such term means
the office or agency which at any particular time its corporate agency business
shall be conducted, which at the date of this Indenture is [ ].
SECTION 15.04. Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Issuer or the Guarantor to the Trustee to
70
take any action under any of the provisions of this Indenture, the Issuer or
the Guarantor, as the case may be, shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that the
person making such certificate or opinion has read such covenant or condition;
(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 such
person, 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 or not, in
the opinion of such person, such condition or covenant has been complied with.
SECTION 15.05. Legal Holidays. In any case where the date of maturity
of any interest, premium or Additional Amounts on or principal of the
Securities or the date fixed for redemption of any Securities shall not be a
Business Day in a city where payment thereof is to be made, then payment of any
interest, premium or Additional Amounts on, or principal of such Securities
need not be made on such date in such city but may be made on the next
succeeding Business Day with the same force and effect as if made on the date
of maturity or the date fixed for redemption, and no interest shall accrue for
the period after such date.
SECTION 15.06. Trust Indenture Act to Control. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with
another provision included in this Indenture by operation of Sections 310 to
317, inclusive, of the Trust Indenture Act of 1939 (an "incorporated
provision"), such incorporated provision shall control.
SECTION 15.07. Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
SECTION 15.08. New York Contract. This Indenture and each Security
and each Guarantee shall be deemed to be a contract made under the laws of the
00
Xxxxx xx Xxx Xxxx, and for all purposes shall be governed by and construed in
accordance with the laws of said State, regardless of the laws that might
otherwise govern under applicable New York principles of conflicts of law and
except as may otherwise be required by mandatory provisions of law. Any claims
or proceedings in respect of this Indenture shall be heard in a federal or
state court located in the State of New York. The Issuer hereby appoints the
Guarantor as its agent for service of process in New York.
SECTION 15.09. Submission to Jurisdiction; Service of Process. The
Issuer irrevocably agrees that any legal action or proceeding against it
arising out of or in connection with this Indenture or for recognition or
enforcement of any judgment rendered against it in connection with this
Indenture may be brought in any Federal or New York State court sitting in the
Borough of Manhattan, and irrevocably accepts and submits to the jurisdiction
of each of the aforesaid courts in person, generally and unconditionally with
respect to any such action or proceeding for itself and in respect of its
property, assets and revenues. The Issuer hereby also irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of venue of any such action or proceeding brought
in any such court and any claim that any such action or proceeding has been
brought in an inconvenient forum. Nothing contained herein shall limit any
right to bring any legal action or proceeding in any other court of competent
jurisdiction. The Issuer hereby appoints the Guarantor as its agent for service
of process in New York.
SECTION 15.10. Judgment Currency. The Issuer agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purposes of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the date
on which final unappealable judgment is entered, unless such day is not a New
York Banking Day, then, to the extent permitted by applicable law, the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding the
day on which final unappealable judgment is entered and (b) its obligations
under this Indenture to make payments in the Required Currency(i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount
of the Required
72
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
SECTION 15.11. Severability of Provisions. Any prohibition, invalidity
or unenforceability of any provision of this Indenture in any jurisdiction
shall not invalidate or render unenforceable the remaining provisions hereto in
such jurisdiction and shall not invalidate or render unenforceable such
provisions in any other jurisdiction.
SECTION 15.12. Issuer and Guarantor Released from Indenture
Requirements under Certain Circumstances. Whenever in this Indenture the Issuer
or the Guarantor shall be required to do or not to do anything so long as any
of the Securities of any series shall be Outstanding, the Issuer or the
Guarantor, as the case may be, shall, notwithstanding any such provision, not
be required to comply with such provisions if it shall be entitled to have this
Indenture satisfied and discharged pursuant to the provisions hereof, even
though in either case the Holders of any of the Securities of that series shall
have failed to present and surrender them for payment pursuant to the terms of
this Indenture.
Citibank, N.A., the party of the second part, hereby accepts the
trusts in this Indenture declared and provided, upon the terms and conditions
hereinabove set forth.
73
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be affixed hereunto,
and the same to be attested by their duly authorized officers, all as of the
day and year first above written.
[Corporate Seal] GENERAL MOTORS NOVA SCOTIA
FINANCE COMPANY
Attest: By:
---------------------------------
[Corporate Seal] GENERAL MOTORS CORPORATION
Attest: By:
---------------------------------
[Corporate Seal] CITIBANK, N.A.
Attest: By:
---------------------------------
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the ____day of [ ], 2001 before me personally came
__________________, to me known, who, being by me duly sworn, did depose
and say that he/she resides
at __________________________________________________________, that
he/she is the _______________________ of General Motors Nova Scotia Finance
Company, one of the corporations described in and which executed the foregoing
instrument; that he/she knows the seal of said Issuer; that the seal affixed to
said instrument is such Corporate seal; that it was so affixed by authority of
the Board of Directors of said Issuer, and that he/she signed his/her name
thereto by like authority.
[SEAL]
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____day of [ ], 2001 before me personally came
__________________, to me known, who, being by me duly sworn, did depose
and say that he/she resides
at __________________________________________________________, that
he/she is the _______________________ of General Motors Corporation, one of
the corporations described in and which executed the foregoing instrument; that
he/she knows the seal of said Guarantor; that the seal affixed to said
instrument is such Corporate seal; that it was so affixed by authority of the
Board of Directors of said Guarantor, and that he/she signed his/her name
thereto by like authority.
[SEAL]
Notary Public
00
XXXXX XX XXX XXXX )
) ss.
COUNTY OF NEW YORK )
On the day of [ ], 2001 before me personally came
______________, to me known, who, being by me duly sworn, did depose and
say that he/she resides at
__________________________________________________________, that
he/she is a _____________________ of Citibank, N.A., one of the corporations
described in and which executed the foregoing instrument; that he/she knows the
seal of said corporation, that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation, and that he/she signed his/her name thereto by like
authority.
[SEAL]
Notary Public
Exhibit 1
R-
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.
GENERAL MOTORS NOVA SCOTIA FINANCE COMPANY
% Notes Due CUSIP
GENERAL MOTORS NOVA SCOTIA FINANCE COMPANY, a Nova Scotia unlimited liability
company (hereinafter called the "Issuer"), for value received, hereby promises
to pay to Cede & Co., or registered assigns, the principal sum of
DOLLARS ($ ) at the office or agency of the Issuer for such purpose in the
Borough of Manhattan, The City of New York, on , in such coin or currency of
the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts, and to pay interest on said
principal sum at the rate of % per annum at the office or agency of the Issuer
in the Borough of Manhattan, The City of New York, in like coin or currency
from the day of or as the case may be, to which interest on the Global Notes
has been paid preceding the date hereof (unless the date hereof is or , to
which interest has been paid, in which case from the date hereof, or unless no
interest has been paid on the Global Notes since the original issuance of this
Global Note, in which case from ), semi-annually on and
, until payment of said principal sum has been made or duly provided
for. [The first payment to be made on is in respect of the period from
to .] Notwithstanding the foregoing, if the date hereof is
after or , as the case may be, and before the following or
, this Global Note shall bear interest from such or ; provided,
however, that if the Issuer shall default in the payment of interest due on such
or , then this Global Note shall bear interest from the next preceding or to
which interest has been paid or, if no interest has been paid on the Global
Notes since the original issuance of the Global Notes, from .
The interest so payable on any or will, subject to certain exceptions
provided in the Indenture referred to below, be paid to the person in whose
name this Global Note is registered at the close of business on the last day of
the calendar month preceding such
or . At the option of the Issuer, interest may be paid by check to the
registered holder hereof entitled thereto at his last address as it appears on
the registry books, and
2
principal may be paid by check to the registered holder hereof or other person
entitled thereto against surrender of this Global Note.
This Global Note is one of a duly authorized issue of debentures, notes, bonds
or other evidences of indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of [ ], 2001 (herein called the
"Indenture"), duly executed and delivered by the Issuer, as issuer, General
Motors Corporation, as guarantor (the "Guarantor") to Citibank, N.A. (herein
called the "Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Issuer and the holders of the Securities. The Securities may be issued in one
or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest (if any) at
different rates, may be subject to different redemption provisions (if any),
and may otherwise vary as in the Indenture provided. This Global Note is one of
Global Notes which together represent all of the Issuer's % Notes Due ,
initially limited in aggregate principal amount to $ . The Global Notes will
bear interest, calculated on the basis of a 360-day year consisting of twelve
30-day months.
In case an Event of Default with respect to the % Notes Due , as defined in the
Indenture, shall have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and payable in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee, with
the consent of the Holders of not less than a majority in aggregate principal
amount of the Securities at the time Outstanding (as defined in the Indenture)
of all series to be affected (voting as one class), evidenced as in the
Indenture provided, to execute supplemental indentures adding any provisions to
or changing in any manner or eliminating any of the provisions of the Indenture
or of any supplemental indenture or modifying in any manner the rights of the
Holders of the Securities of each such series; provided, that no such
supplemental indenture shall (i) extend the final maturity of any Security, or
reduce the principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of any interest thereon, or make the principal of
or interest thereon payable in any coin or currency other than United States
dollars, or impair or affect the rights of any Holder to institute suit for the
payment thereof, without the consent of the Holder of each Security so
affected, or (ii) reduce the aforesaid percentage of Securities, the Holders of
which are required to consent to any such supplemental indenture, without the
consent of the Holder of each Security affected. Any such consent or waiver by
the Holder of this Global Note shall be conclusive and binding upon such Holder
and upon all future Holders of this Global Note and of any Global Note issued
upon the registration of transfer hereof or in lieu hereof, whether or not
notation for such consent or waiver is
3
made upon this Global Note.
No reference herein to the Indenture and no provision of this Global Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Global
Note at the place, at the respective times, at the rate, and in the coin or
currency, herein prescribed.
The Issuer may from time to time, without notice to or the consent of the
registered holders of the Global Notes, create and issue further notes ranking
pari passu (the "further Notes") with the Global Notes in all respects (or in
all respects except for the payment of interest accruing prior to the issue
date of such further Notes or except for the first payment if interest
following the issue date of such further Notes) and having endorsed thereon the
guarantees of the Guarantor so that such further Notes may be consolidated and
form a single series with the Global Notes and have the same terms as to
status, redemption or otherwise as the Global Notes.
This Global Note may not be redeemed prior to maturity, except as provided
below.
If, as a result of any change in or amendment to the laws (including any
regulations or rulings promulgated thereunder) of Canada or any political
subdivision thereof or therein affecting taxation, or any change in the
official application or interpretation of such laws, including any official
proposal for such a change, amendment or change in the application or
interpretation of such laws, which change, amendment, application or
interpretation is announced or becomes effective after , 2001 or which proposal
is made after such date, or as a result of any action taken by any taxing
authority of Canada which action is taken or becomes generally known after such
date, there is, in such case, in the written opinion of independent legal
counsel of recognized standing to the Issuer or Guarantor (as applicable), a
material increase in the probability that the Issuer has or may become
obligated to pay Canadian Additional Amounts (as described below), and the
Issuer or Guarantor (as applicable) in its business judgment, determines that
such obligation cannot be avoided by the use of reasonable measures available
to the Issuer, this Global Note may be redeemed, as a whole but not in part, at
the option of the Issuer or Guarantor (as applicable) at any time thereafter,
upon notice to the Trustee and the holders of the Global Notes in accordance
with the provisions of the Indenture at a redemption price equal to 100% of the
principal amount of the Global Notes to be redeemed together with accrued
interest thereon to the date fixed for redemption.
All payments of principal, premium, if any, and interest, if any, in respect of
the notes will be made without withholding of or deduction for, or on account
of, any present or future taxes, duties, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of the government of Canada
or any political subdivision thereof, or any authority or agency therein or
thereof having power to tax,
4
unless the withholding or deduction of such taxes, duties, assessments or
governmental charges is required by law or the application or interpretation
thereof. If such withholding or deduction is so required, General Motors Nova
Scotia Finance Company shall pay (subject to General Motors Nova Scotia Finance
Company's right of redemption referred to above) as additional interest such
Canadian additional amounts as may be necessary in order that the net amounts
received by the holders of notes after such withholding or deduction shall
equal the net payment in respect of such notes which would have been received
by them in respect of the notes, in the absence of such withholding or
deduction; except that no Canadian additional amounts shall be payable with
respect to any note presented for payment:
(a) by or on behalf of a holder in respect of whom such taxes, duties,
assessments or governmental charges are required to be withheld or deducted by
reason of the holder being a person with whom General Motors Nova Scotia
Finance Company is not dealing at arm's length within the meaning of the Income
Tax Act (Canada);
(b) by or on behalf of a holder who is subject to such taxes, duties,
assessments or governmental charges by reason of such holder's being resident
or deemed to be resident in Canada or otherwise than merely by the holding or
use or deemed holding or use outside Canada or ownership as a non-resident of
Canada of such note; or
(c) more than 10 days after the later of (a) the date on which payment
in respect of the notes becomes due and payable and (b) if the full amount of
monies payable on such date has not been received by the Paying Agent on or
prior to such date, except to the extent that the holder thereof would have
been entitled to such Canadian additional amounts on presenting such note for
payment on the last day of such period of 10 days.
The Global Notes are subject in all cases to any tax, fiscal or other law or
regulation or administrative or judicial interpretation applicable thereto.
Except as specifically provided herein, the Issuer shall not be required to
make any payment with respect to any tax, assessment or governmental charge
imposed by any government or a political subdivision or taxing authority
thereof or therein.
[The Global Notes will be redeemable at any time, at the Issuer's option, in
whole or in part, on not less than 30 nor more than 60 days' prior notice,
prior to their maturity at a redemption price equal to the sum of the principal
amount of the Global Notes, the Make-Whole Amount described below and any
accrued and unpaid interest to the date of redemption. Holders of record on a
record date that is on or prior to a redemption date will be entitled to
receive interest due on the interest payment date.
5
The term "Make-Whole Amount" means, the excess, if any, of (i) the aggregate
present value as of the date of the redemption of principal being redeemed and
the amount of interest (exclusive of interest accrued to the date of
redemption) that would have been payable if redemption had not been made,
determined by discounting, on a semiannual basis, the remaining principal and
interest at the Reinvestment Rate described below (determined on the third
business day preceding the date notice of redemption is given) from the dates
on which the principal and interest would have been payable if the redemption
had not been made, to the date of redemption, over (ii) the aggregate principal
amount of the Global Notes being redeemed.
The term "Reinvestment Rate" means % plus the arithmetic mean of the yields
under the heading "Week Ending" published in the most recent weekly Statistical
Release under the caption "Treasury Constant Maturities" for the maturity
(rounded to the nearest tenth) corresponding to the remaining life to maturity,
as of the payment date of the principal being redeemed or paid. If no maturity
exactly corresponds to the maturity, yields for the two published maturities
most closely corresponding to the maturity would be so calculated and the
Reinvestment Rate would be interpolated or extrapolated on a straight-line
basis, rounding to the nearest tenth. The most recent Statistical Release
published prior to the date of determination of the Make-Whole Amount will be
used for purposes of calculating the Reinvestment Rate.
The Make-Whole Amount will be calculated by an independent investment banking
institution of national standing appointed by the Issuer. If the Issuer fails
to make the appointment at least 45 business days prior to the date of
redemption, or if the institution is unwilling or unable to make the
calculation, the calculation will be made by an independent investment banking
institution of national standing appointed by the Trustee.
If the Reinvestment Rate is not available as described above, the Reinvestment
Rate will be calculated by interpolation or extrapolation of comparable rates
selected by the independent investment banking institution.
In the case of any partial redemption, selection of the Global Notes for
redemption will be made by the Trustee in compliance with the requirements of
the principal national securities exchange, if any, on which the Global Notes
are listed or, if the Global Notes are not listed on a national securities
exchange, by lot or by such other method as the Trustee in its sole discretion
deems to be fair and appropriate.]
Upon due presentment for registration of transfer of this Global Note at the
office or agency designated and maintained by the Issuer for such purpose in
the Borough of Manhattan, The City of New York, pursuant to the provisions of
the Indenture, a new Global Note for an equal aggregate principal amount will
be issued to the transferee in
6
exchange therefor, subject to the limitations provided in the Indenture,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer or the Trustee
may deem and treat the Holder in whose name this Global Note is registered as
the absolute owner of this Global Note (whether or not this Global Note shall
be overdue and notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment of, or on account of, the
principal hereof and premium, if any, and subject to the provisions contained
herein, interest hereon, and for all other purposes, and neither the Issuer nor
the Trustee nor any authorized agent of the Issuer or the Trustee shall be
affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the Issuer
or the Guarantor in the Indenture or any indenture supplemental thereto or in
any Note or Guarantee, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder,
officer or director, as such, of the Issuer or the Guarantor or of any
successor corporation of either of them, either directly or through the Issuer
or the Guarantor or any successor corporation of either of them, under any rule
of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
The Guarantee of the Guarantor is endorsed below.
This Global Note is governed by the laws of the State of New York.
Terms used herein which are defined in the Indenture shall have the respective
meanings assigned thereto in the Indenture.
This Global Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by the Trustee
under the Indenture.
7
WITNESS THE SEAL OF THE ISSUER AND THE SIGNATURES OF ITS DULY AUTHORIZED
OFFICERS.
GENERAL MOTORS NOVA SCOTIA
FINANCE COMPANY
Dated:
By:____________________________
Title:
[SEAL]
By:____________________________
Title:
8
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE SECURITIES OF THE SERIES DESIGNATED THEREIN REFERRED TO IN
THE WITHIN-MENTIONED INDENTURE.
CITIBANK, N.A.
AS TRUSTEE,
By:___________________________________
Authorized Agent
9
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
___________________________________
________________________________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address including postal zip code of assignee
________________________________________________________________________________
the within Global Note of GENERAL MOTORS NOVA SCOTIA FINANCE
COMPANY and hereby irrevocably constitutes and appoints
____________________________________________________________________ attorney to
transfer said Global Note on the books of the within-named Issuer, with full
power of substitution in the premises.
Dated:___________________________
SIGN HERE ___________________________
NOTICE: THE SIGNATURE OF
THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME
AS WRITTEN UPON THE FACE
OF THE WITHIN INSTRUMENT
IN EVERY PARTICULAR
WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE
WHATEVER.
SIGNATURE GUARANTEED
10
[FORM OF GUARANTEE]
General Motors Corporation (the "Guarantor") hereby unconditionally
guarantees to the holder of this Note duly authenticated and delivered by the
Trustee, the due and punctual payment of the principal, and premium, if any, of
(including any amount in respect of original issue discount), and interest, if
any (together with any Additional Amounts payable pursuant to the terms of this
Note), on this Note and the due and punctual payment of the sinking fund
payments, if any, and analogous obligations, if any, provided for pursuant to
the terms of this Note, when and as the same shall become due and payable,
whether at maturity or upon redemption or upon declaration of acceleration or
otherwise according to the terms of this Note and of the Indenture. In case of
default by the Issuer in the payment of any such principal (including any
amount in respect of original issue discount), interest (together with any
Additional Amounts payable pursuant to the terms of this Note), sinking fund
payment, or analogous obligation, the Guarantor agrees duly and punctually to
pay the same. The Guarantor hereby agrees that its obligations hereunder shall
be absolute and unconditional irrespective of any extension of the time for
payment of this Note, any modification of this Note, any invalidity,
irregularity or unenforceability of this Note or the Indenture, any failure to
enforce the same or any waiver, modification or indulgence granted to the
Issuer with respect thereto by the holder of this Note or the Trustee, or any
other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Issuer, any right to require a demand or proceeding
first against the Issuer, protest or notice with respect to this Note or the
indebtedness evidenced thereby and all demands whatsoever, and covenants that
this guarantee will not be discharged as to this Note except by payment in full
of the principal of (including any amount payable in respect of original issue
discount), and interest, if any (together with any Additional Amounts payable
pursuant to the terms of this Note), thereon.
The Guarantor irrevocably waives any and all rights to which it may be
entitled, by operation of law or otherwise, upon making any payment hereunder
(i) to be subrogated to the rights of a Holder against the Issuer with respect
to such payment or otherwise to be reimbursed, indemnified or exonerated by the
Issuer in respect thereof or (ii) to receive any payment, in the nature of
contribution or for any other reason, from any other obligor with respect to
such payment.
This guarantee shall not be valid or become obligatory for any purpose
with respect to this Note until the certificate of authentication on this Note
shall have been signed by the Trustee.
This guarantee is governed by the laws of the State of New York.
11
IN WITNESS WHEREOF, General Motors Corporation has caused this
guarantee to be signed by facsimile by its duly authorized officers and has
caused a facsimile of its corporate seal to be affixed hereunto or imprinted
hereon.
GENERAL MOTORS CORPORATION
By:
---------------------------------
By:
---------------------------------
12
