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Exhibit 4.1
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PRISON REALTY TRUST, INC.
To
STATE STREET BANK AND TRUST COMPANY
Trustee
Indenture
Dated as of June 10, 1999
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION...............................................................1
Section 1.01. Definitions ..........................................................1
Section 1.02. Compliance Certificates and Opinions ................................11
Section 1.03. Form of Documents Delivered to Trustee...............................11
Section 1.04. Notices, etc., to Trustee and Company................................12
Section 1.05. Notice to Holders; Waiver............................................12
Section 1.06. Conflict with Trust Indenture Act ...................................13
Section 1.07. Effect of Headings and Table of Contents ............................13
Section 1.08. Successors and Assigns...............................................13
Section 1.09. Separability Clause..................................................13
Section 1.10. Benefits of Indenture................................................13
Section 1.11. Governing Law........................................................13
Section 1.12. Legal Holidays ......................................................14
Section 1.13. No Security Interest Created ........................................14
Section 1.14. Liability Solely Corporate...........................................14
ARTICLE II
DEBT SECURITY FORMS.................................................................15
Section 2.01. Forms Generally .....................................................15
Section 2.02. Form of Trustee's Certificate of Authentication .....................15
Section 2.03. Securities in Global Form ...........................................16
ARTICLE III
THE DEBT SECURITIES ................................................................16
Section 3.01. Amount Unlimited; Issuable in Series.................................16
Section 3.02. Denominations .......................................................20
Section 3.03. Execution, Authentication, Delivery and Dating.......................20
Section 3.04. Temporary Debt Securities; Exchange of Temporary Global Notes for
Definitive Bearer Securities ........................................22
Section 3.05. Registration, Transfer and Exchange .................................26
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities................28
Section 3.07. Payment of Interest; Interest Rights Preserved ......................29
Section 3.08. Cancellation ........................................................31
Section 3.09. Computation of Interest..............................................31
Section 3.10. Currency of Payments in Respect of Debt .............................31
Section 3.11. Judgments............................................................34
Section 3.12. Exchange Upon Default................................................35
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ARTICLE IV
SATISFACTION AND DISCHARGE .........................................................35
Section 4.01. Satisfaction and Discharge of Indenture..............................35
Section 4.02. Application of Trust Money...........................................36
ARTICLE V
REMEDIES ...........................................................................37
Section 5.01. Events of Default....................................................37
Section 5.02. Acceleration of Maturity; Rescission and Annulment...................38
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee......39
Section 5.04. Trustee May File Proofs of Claim ....................................40
Section 5.05. Trustee May Enforce Claims Without Possession of Debt Securities.....40
Section 5.06. Application of Money Collected.......................................40
Section 5.07. Limitation on Suits .................................................41
Section 5.08. Unconditional Right of Holders to Receive Principal, Premium and
Interest ............................................................42
Section 5.09. Restoration of Rights and Remedies...................................42
Section 5.10. Rights and Remedies Cumulative.......................................42
Section 5.11. Delay or Omission Not Waiver ........................................42
Section 5.12. Control by Holders ..................................................42
Section 5.13. Waiver of Past Defaults..............................................43
Section 5.14. Undertaking for Costs ...............................................43
Section 5.15. Waiver of Stay or Extension Laws.....................................43
ARTICLE VI
THE TRUSTEE ........................................................................44
Section 6.01. Certain Duties and Responsibilities .................................44
Section 6.02. Notice of Defaults...................................................45
Section 6.03. Certain Rights of Trustee............................................45
Section 6.04. Not Responsible for Recitals or Issuance of Debt Securities..........46
Section 6.05. May Hold Debt Securities.............................................46
Section 6.06. Money Held in Trust..................................................47
Section 6.07. Compensation and Reimbursement.......................................47
Section 6.08. Disqualification; Conflicting Interests .............................47
Section 6.09. Corporate Trustee Required; Eligibility .............................52
Section 6.10. Resignation and Removal; Appointment of Successor....................53
Section 6.11. Acceptance of Appointment by Successor ..............................54
Section 6.12. Merger, Conversion, Consolidation or Succession to Business .........55
Section 6.13. Preferential Collection of Claims Against Company....................55
Section 6.14. Appointment of Authenticating Agent .................................58
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY...................................59
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Section 7.01. Company to Furnish Trustee Names and Addresses of Holders............59
Section 7.02. Preservation of Information; Communication to Holders................60
Section 7.03. Reports by Trustee ..................................................61
Section 7.04. Reports by Company...................................................63
ARTICLE VIII
CONCERNING THE HOLDERS..............................................................64
Section 8.01. Acts of Holders......................................................64
Section 8.02. Proof of Ownership; Proof of Execution of Instruments by Holder......64
Section 8.03. Persons Deemed Owners................................................65
Section 8.04. Revocation of Consents; Future Holders Bound.........................65
ARTICLE IX
HOLDERS' MEETINGS ..................................................................65
Section 9.01. Purposes of Meetings ................................................65
Section 9.02. Call of Meetings by Trustee..........................................66
Section 9.03. Call of Meetings by Company or Holders...............................66
Section 9.04. Qualifications for Voting............................................66
Section 9.05. Regulations..........................................................66
Section 9.06. Voting...............................................................67
Section 9.07. No Delay of Rights by Meeting .......................................67
ARTICLE X
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE................................68
Section 10.01. Company May Consolidate, etc., Only on Certain Terms................68
Section 10.02. Successor Corporation Substituted...................................68
ARTICLE XI
SUPPLEMENTAL INDENTURES ............................................................69
Section 11.01. Supplemental Indentures Without Consent of Holders .................69
Section 11.02. Supplemental Indentures With Consent of Holders.....................70
Section 11.03. Execution of Supplemental Indentures ...............................71
Section 11.04. Effect of Supplemental Indentures ..................................71
Section 11.05. Conformity with Trust Indenture Act.................................71
Section 11.06. Reference in Debt Securities to Supplemental Indentures ............71
Section 11.07. Notice of Supplemental Indenture ...................................72
ARTICLE XII
COVENANTS ..........................................................................72
Section 12.01. Payment of Principal, Premium and Interest..........................72
Section 12.02. Officer's Certificate as to Default.................................72
Section 12.03. Maintenance of Office or Agency.....................................72
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Section 12.04. Money for Debt Securities; Payments To Be Held in Trust.............73
Section 12.05. Corporate Existence ................................................75
Section 12.06. Purchase of Debt Securities by Company..............................75
Section 12.07. Waiver of Certain Covenants.........................................75
ARTICLE XIII
REDEMPTION OF DEBT SECURITIES.......................................................75
Section 13.01. Applicability of Article ...........................................75
Section 13.02. Election to Redeem; Notice to Trustee ..............................75
Section 13.03. Selection by Trustee of Debt Securities to Be Redeemed..............76
Section 13.04. Notice of Redemption ...............................................76
Section 13.05. Deposit of Redemption Price ........................................77
Section 13.06. Debt Securities Payable on Redemption Date..........................77
Section 13.07. Debt Securities Redeemed in Part ...................................78
ARTICLE XIV
SINKING FUNDS ......................................................................78
Section 14.01. Applicability of Article ...........................................78
Section 14.02. Satisfaction of Mandatory Sinking Fund Payments with Debt
Securities..........................................................79
Section 14.03. Redemption of Debt Securities for Sinking Fund .....................79
ARTICLE XV
DEFEASANCE .........................................................................81
Section 15.01. Applicability of Article ...........................................81
Section 15.02. Defeasance Upon Deposit of Moneys or U.S. Government Obligations....81
Section 15.03. Deposited Moneys and U.S. Government Obligations to Be Held in
Trust...............................................................82
Section 15.04. Repayment to Company................................................83
ARTICLE XVI
CONVERSION .........................................................................83
Section 16.01. Applicability; Conversion Privilege ................................83
Section 16.02. Conversion Procedure; Conversion Price; Fractional Shares...........83
Section 16.03. Adjustment of Conversion Price for Common Stock.....................84
Section 16.04 Consolidation or Merger of the Company..............................87
Section 16.05. Notice of Adjustment................................................87
Section 16.06. Notice in Certain Events ...........................................88
Section 16.07. Company to Reserve Stock; Registration; Listing.....................88
Section 16.08. Taxes on Conversion.................................................89
Section 16.09 Conversion After Record Date........................................89
Section 16.10. Company Determination Final.........................................89
Section 16.11 Trustee's Disclaimer ...............................................90
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Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of June 10, 1999
Trust Indenture Act Section Indenture Section
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ss. 310 (a)(1) .................................. 6.09
(a)(2) .................................. 6.09
(a)(3) .................................. Not Applicable
(a)(4) .................................. Not Applicable
(a)(5) .................................. 6.09
(b) ..................................... 6.08, 6.10
(c) ..................................... Not Applicable
ss. 311 (a) ..................................... 6.13(a)
(b) ..................................... 6.13(b)
(c) ..................................... Not Applicable
ss. 312 (a) ..................................... 7.01, 7.02(a)
(b) ..................................... 7.02(b)
(c) ..................................... 7.02(c)
ss. 313 (a) ..................................... 7.03(a)
(b) ..................................... 7.03(b)
(c) ..................................... 7.03(a),
7.03(c)
(d) ..................................... 7.03(d)
ss. 314 (a) ..................................... 7.04,
........................................ 12.02
(b) ..................................... Not Applicable
(c)(1) .................................. 1.02
(c)(2) .................................. 1.02
(c)(3) .................................. Not Applicable
(d) ..................................... Not Applicable
(e) ..................................... 1.02
ss. 315 (a) ..................................... 6.01(a),
6.01(c)
(b) ..................................... 6.02,
7.03(a)(7)
(c) ..................................... 6.01(b)
(d)(1) .................................. 6.01(a)
(d)(2) .................................. 6.01(c)(2)
(d)(3) .................................. 6.01(c)(3)
(e) ..................................... 5.14
ss. 316 (a)(1)(A)................................ 5.02, 5.12
(a)(1)(B)................................ 5.13
(a)(2) .................................. Not Applicable
(b) ..................................... 5.08
(c) ..................................... Not Applicable
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ss. 317 (a)(1) .................................. 5.03
(a)(2) .................................. 5.04
(b) ..................................... 12.04
ss. 318 ....................................... 1.06
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
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INDENTURE dated as of June 10, 1999, between PRISON REALTY TRUST,
INC., a Maryland corporation (hereinafter called the "Company"), having its
principal executive office at 00 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxxx, 00000, and STATE STREET BANK AND TRUST COMPANY (hereinafter called
the "Trustee"), having its Corporate Trust Office at 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx, 00000.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes, bonds or other evidences of indebtedness (herein generally called the
"Debt Securities"), to be issued in one or more series, as in this Indenture
provided.
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Debt Securities or of Debt
Securities of any series, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles or as provided with respect to any series of Debt Securities,
and, except as otherwise herein provided or as provided with respect to
any series of Debt Securities, the term "generally accepted accounting
principles" or "GAAP" with respect to any computation required or
permitted hereunder with respect to any series of Debt Securities, shall
mean such as set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have
been approved by a significant segment of the accounting profession which
are in effect as of the issuance date of such series of Debt Securities;
and
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(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Three or Article Six, are defined in
those respective Articles.
"Act" when used with respect to any Holder, has the meaning
specified in Section 8.01.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" as used with respect to any Person shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through
the ownership of voting securities, by agreement or otherwise, provided
that beneficial ownership of 10% or more of the voting securities of a
Person shall be deemed to be control. For purposes of this definition, the
terms "controlling," "controlled by" and "under common control with" shall
have correlative meanings.
"Authenticating Agent" has the meaning specified in Section 6.14.
"Authorized Newspaper" means a newspaper in an official language of
the country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in the place in connection with which the term is used
or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the
same city meeting the foregoing requirements and in each case on any
Business Day in such city.
"Bearer Security" means any Debt Security (with or without
Coupons), in the form established pursuant to Section 2.01, which is
payable to bearer (including any Global Note payable to bearer) and title
to which passes by delivery only, but does not include any Coupons.
"Board of Directors" means either the board of directors of the
Company, or any committee of that board duly authorized to act hereunder
or any director or directors and/or officer or officers of the Company to
whom that board or committee shall have delegated its authority.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the Debt
Securities means any day which is not a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies in that
Place of Payment or other location are authorized or obligated by law to
close, except as otherwise specified pursuant to Section 3.01.
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"CEDEL" means Cedel S.A.
"Closing Price" of the Common Stock shall mean the last reported sale
price of such stock (regular way) as shown on the Composite Tape of the New York
Stock Exchange (or, if such stock is not listed or admitted to trading on the
New York Stock Exchange, on the principal national securities exchange on which
such stock is listed or admitted to trading), or, in case no such sale takes
place on such day, the average of the closing bid and asked prices on the New
York Stock Exchange (or, if such stock is not listed or admitted to trading on
the New York Stock Exchange, on the principal national securities exchange on
which such stock is listed or admitted to trading), or, if it is not listed or
admitted to trading on any national securities exchange, the average of the
closing bid and asked prices as reported by the National Association of
Securities Dealers Automated Quotation System (NASDAQ), or if such stock is not
so reported, the average of the closing bid and asked prices as furnished by any
member of the National Association of Securities Dealers, Inc., selected from
time to time by the Company for that purpose.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Common Stock" shall mean the class of Common Stock, par value $.01 per
share, of the Company authorized at the date of this Indenture as originally
signed, or any other class of stock resulting from successive changes or
reclassifications of such Common Stock, and in any such case including any
shares thereof authorized after the date of this Indenture, and any other shares
of stock of the Company which do not have any priority in the payment of
dividends or upon liquidation over any other class of stock.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman, a Vice
Chairman, the President, the Chief Financial Officer, the Chief Operating
Officer or a Vice President and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Component Currency" has the meaning specified in Section 3.10(i).
"Conversion Agent" means any Person authorized by the Company to receive
Debt Securities to be converted into Common Stock on behalf of the Company. The
Company initially authorizes the Trustee to act as Conversion Agent for the Debt
Securities on its behalf. The Company may at any time from time to time
authorize one or more Persons to
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act as Conversion Agent in addition to or in place of the Trustee with respect
to any series of Debt Securities issued under this Indenture.
"Conversion Date" has the meaning specified in Section 3.10(e).
"Conversion Event" means the cessation of (i) a Foreign Currency to be
used both by the government of the country which issued such Currency and for
the settlement of transactions by public institutions of or within the
international banking community, (ii) the ECU to be used both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any Currency unit
other than the ECU to be used for the purposes for which it was established.
Notwithstanding any term herein, or in any supplement hereto, to the contrary,
in no instance shall the Trustee be under any duty or obligation to determine or
monitor whether a Conversion Event has occurred. Upon receipt by the Trustee of
an Officers' Certificate of the Company certifying to the effect that a
Conversion Event has occurred, the Trustee shall be entitled to rely exclusively
thereon without independent investigation on its part.
"Conversion Price" means, with respect to any series of Debt Securities
which are convertible into Common Stock, the price per share of Common Stock at
which the Debt Securities of such series are so convertible pursuant to Section
3.01 with respect to such series, as the same may be adjusted from time to time
in accordance with Section 16.03.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this instrument is
located at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000, Attention:
Corporate Trust Department. .
"Corporation" includes corporations, associations, companies and business
trusts.
"Coupon" means any interest coupon appertaining to any Debt Security.
"Coupon Security" means any Bearer Security authenticated and delivered
with one or more Coupons appertaining thereto.
"Currency" means Dollars or Foreign Currency.
"Currency Determination Agent" means the New York Clearing House bank, if
any, from time to time selected by the Company for purposes of Section 3.10;
provided that such agent shall accept such appointment in writing and the terms
of such appointment shall be acceptable to the Company and shall, in the opinion
of the Company and the Trustee at the time of such appointment, require such
agent to make the determinations required by this Indenture by a method
consistent with the method provided in this Indenture for the making of such
decision or determination.
"Current Market Price" on any date shall mean the average of the daily
Closing Prices per share of Common Stock for any thirty (30) consecutive Trading
Days selected by the Company prior to the date in question, which thirty (30)
consecutive Trading Day period shall not commence more than forty-five (45)
Trading Days prior to the day in question; provided
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that with respect to Section 16.03(3), the "Current Market Price" of the Common
Stock shall mean the average of the daily Closing Prices per share of Common
Stock for the five (5) consecutive Trading Days ending on the date of the
distribution referred to in Section 16.03(3) (or if such date shall not be a
Trading Day, on the Trading Day immediately preceding such date).
"Debt Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Debt Securities (including any Global
Notes) authenticated and delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Discharged" has the meaning specified in Section 15.02.
"Discount Security" means any Debt Security which is issued with "original
issue discount" within the meaning of Section 1273(a) of the Code (or any
successor provision) and the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time of payment is legal tender for the
payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 3.10(h).
"Dollar Equivalent of the Foreign Currency" has the meaning specified in
Section 3.10(g).
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 3.10(i).
"Euro-clear Operator" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, or its successor as operator of the Euro-clear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Rate Officer's Certificate" means a telex or a certificate
setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar,
Foreign Currency or Currency unit amounts of principal, premium, if any, and any
interest respectively (on an aggregate basis and on the basis of a Debt Security
having the lowest denomination principal amount
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determined in accordance with Section 3.02 in the relevant Currency or Currency
unit), payable on the basis of such Market Exchange Rate sent (in the case of a
telex) or signed (in the case of a certificate) by the Treasurer or any
Assistant Treasurer of the Company.
"Fixed Rate Security" means a Debt Security which provides for the payment
of interest at a fixed rate.
"Floating Rate Security" means a Debt Security which provides for the
payment of interest at a variable rate determined periodically by reference to
an interest rate index or any other index specified pursuant to Section 3.01.
"Foreign Currency" means a currency issued by the government of any
country other than the United States or a composite currency or currency unit
the value of which is determined by reference to the values of the currencies of
any group of countries.
"Global Note" means a Registered or Bearer Security evidencing all or part
of a series of Debt Securities, including, without limitation, any temporary or
permanent Global Note.
"Holder" means, with respect to a Registered Security, the Registered
Holder, and with respect to a Bearer Security or a Coupon, the bearer thereof.
"Indenture" means this instrument as originally executed, or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and, unless the context otherwise requires, shall include the terms of a
particular series of Debt Securities as established pursuant to Section 3.01.
The term "interest," when used with respect to a Discount Security which
by its terms bears interest only on a certain date, means interest payable after
such date, and, when used with respect to a Bearer Security, includes any
additional amounts payable on such Bearer Security, if so provided pursuant to
Section 3.01.
"Interest Payment Date" with respect to any Debt Security means the Stated
Maturity of an installment of interest on such Debt Security.
"Market Exchange Rate" means (i) for any conversion involving a Currency
unit on the one hand and Dollars or any Foreign Currency on the other, the
exchange rate between the relevant Currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 3.01 for the
securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency. In the event of
the unavailability of any of the exchange rates provided for in the
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foregoing clauses (i), (ii) and (iii) the Currency Determination Agent, if any,
or if there shall not be a Currency Determination Agent, then the Trustee, 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, or
quotations from one or more major banks in New York City, London or other
principal market for such Currency or Currency unit in question, or such other
quotations as the Currency Determination Agent or the Trustee, as the case may
be, shall deem appropriate. Unless otherwise specified by the Currency
Determination Agent, if any, or if there shall not be a Currency Determination
Agent, then by the Trustee, if there is more than one market for dealing in any
Currency or Currency unit by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such Currency or Currency unit
shall be that upon which a nonresident issuer of securities designated in such
Currency or Currency unit would purchase such Currency or Currency unit in order
to make payments in respect of such securities.
"Maturity" when used with respect to any Debt Security means the date on
which the principal of such Debt Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption, repayment or repurchase at
the option of the Holder thereof or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman, a Vice
Chairman, the President, the Chief Financial Officer or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel to the Company (including an employee of the Company) and who shall be
satisfactory to the Trustee, which is delivered to the Trustee.
"Outstanding" when used with respect to Debt Securities, means, as of the
date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Debt Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Debt Securities for whose redemption money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such Debt
Securities and any Coupons thereto pertaining; provided, however, that if such
Debt Securities are to be redeemed notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made and the date for such redemption has passed; and
(iii) Debt Securities which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Debt Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Debt Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Debt Securities are held by a bona fide purchaser
in whose hands such Debt Securities are valid obligations of the Company;
provided, however, that in determining whether
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the Holders of the requisite principal amount of Debt Securities Outstanding
have performed any Act hereunder, Debt Securities owned by the Company or any
other obligor upon the Debt Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding
(provided, that in connection with any offer by the Company or any obligor to
purchase Debt Securities, Debt Securities rendered by a Holder shall be
Outstanding until the date of purchase), except that, in determining whether the
Trustee shall be protected in relying upon any such Act, only Debt Securities
which the Trustee knows to be so owned shall be so disregarded. Debt Securities
so owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
to act with respect to such Debt Securities and that the pledgee is not the
Company or any other obligor upon the Debt Securities or any Affiliate of the
Company or of such other obligor. In determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities have performed any Act
hereunder, the principal amount of a Discount Security that shall be deemed to
be Outstanding for such purpose shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02 and
the principal amount of a Debt Security denominated in a Foreign Currency that
shall be deemed to be Outstanding for such purpose shall be the amount
calculated pursuant to Section 3.10(k).
"Overdue Rate" when used with respect to any series of the Debt
Securities, means the rate designated as such in or pursuant to the Board
Resolution or the supplemental indenture, as the case may be, relating to such
series as contemplated by Section 3.01.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities on behalf
of the Company.
"permanent Global Note" shall have the meaning given such term in Section
3.04(b).
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, estate, unincorporated organization or
government or any agency or political subdivision thereof or any other entity.
"Place of Payment" when used with respect to the Debt Securities of any
series means the place or places where the principal of (and premium, if any)
and interest on the Debt Securities of that series are payable as specified
pursuant to Section 3.01.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 3.06 in
lieu of a mutilated, lost, destroyed or stolen Debt Security or a Debt Security
to which a mutilated, lost, destroyed or stolen Coupon appertains shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Debt Security or the Debt Security to which the mutilated, lost, destroyed or
stolen Coupon appertains, as the case may be.
"Redemption Date" means the date fixed for redemption of any Debt Security
pursuant to this Indenture which, in the case of a Floating Rate Security,
unless otherwise specified pursuant to Section 3.01, shall be an Interest
Payment Date only.
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"Redemption Price" means, in the case of a Discount Security, the amount
of the principal thereof that would be due and payable as of the Redemption Date
upon a declaration of acceleration of the Maturity thereof pursuant to Section
5.02, and in the case of any other Debt Security, the principal amount thereof,
plus, in each case, premium, if any, and accrued and unpaid interest, if any, to
the Redemption Date.
"Registered Holder" means the Person in whose name a Registered Security
is registered in the Security Register.
"Registered Security" means any Debt Security in the form established
pursuant to Section 2.01 which is registered as to principal and interest in the
Security Register.
"Regular Record Date" for the interest payable on the Registered
Securities of any series on any Interest Payment Date means the date specified
for the purpose pursuant to Section 3.01 for such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee means any vice
president, the secretary, any assistant secretary or any assistant vice
president or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.05(a).
"Senior Indebtedness" means the principal of (and premium, if any) and
unpaid interest on (i) Indebtedness of the Company, whether outstanding on the
date of this Indenture or thereafter created, incurred, assumed or guaranteed,
for money borrowed (other than the Indebtedness evidenced by the Debt Securities
of any series), unless in the instrument creating or evidencing the same or
pursuant to which the same is outstanding it is provided that such Indebtedness
is not senior or prior in right of payment to the Debt Securities, and (ii)
renewals, extensions, modifications and refundings of any such Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
"Specified Amount" has the meaning specified in Section 3.10(i).
"Stated Maturity" when used with respect to any Debt Security or any
installment of principal thereof or premium thereon or interest thereon means
the date specified in such Debt Security or the Coupon, if any, representing
such installment of interest, as the date on which the principal of such Debt
Security or such installment of principal, premium or interest is due and
payable.
"Subsidiary" means, with respect to any specified Person, (i) any
corporation, association, or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote
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in the election of directors, managers or trustees thereof is at the time owned
or controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person (or a combination thereof) and (ii) any
partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general
partners of which are such Person or one or more Subsidiaries of such Person (or
any combination thereof).
"temporary Global Note" shall have the meaning given such term in Section
3.04(b).
"Trading Day" shall mean, with respect to the Common Stock, so long as the
Common Stock is listed or admitted to trading on the New York Stock Exchange, a
day on which the New York Stock Exchange is open for the transaction of
business, or, if the Common Stock is not listed or admitted to trading on the
New York Stock Exchange, a day on which the principal national securities
exchange on which the Common Stock is listed is open for the transaction of
business, or, if the Common Stock is not so listed or admitted for trading on
any national securities exchange, a day on which NASDAQ is open for the
transaction of business.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Debt
Securities of any series shall mean the Trustee with respect to Debt Securities
of such series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as amended and
as in force at the date as of which this instrument was executed, except as
provided in Section 11.05.
"United States" means the United States of America (including the States
and the District of Columbia), and its possessions, which include Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
"U.S. Depositary" means a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or any successor thereto, which shall in
either case be designated by the Company pursuant to Section 3.01 until a
successor U.S. Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "U.S. Depositary" shall mean or
include each Person who is then a U.S. Depositary hereunder, and if at any time
there is more than one such Person, "U.S. Depositary" as used with respect to
the Debt Securities of any series shall mean the U.S. Depositary with respect to
the Debt Securities of that series.
"U.S. Government Obligations" has the meaning specified in Section 15.02.
"U.S. Person" means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States, or an estate or trust the income of which is subject
to United States Federal income taxation regardless of its source.
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"Valuation Date" has the meaning specified in Section 3.10(d).
"Vice President" includes with respect to the Company and the
Trustee, any Vice President of the Company or the Trustee, as the case may
be, whether or not designated by a number or word or words added before or
after the title "Vice President."
Section 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 12.02) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04. Notices, etc., to Trustee and Company.
Any Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if made, given, furnished or filed in writing to or with the Trustee at
its Corporate Trust Office, Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid or airmail postage
prepaid if sent from outside the United States, to the Company addressed
to it at the address of its principal office specified in the first
paragraph of this instrument, to the attention of its Treasurer, or at any
other address previously furnished in writing to the Trustee by the
Company.
Any such Act or other document shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Section 1.05. Notice to Holders; Waiver.
When this Indenture provides for notice to Holders of any event,
(1) such notice shall be sufficiently given to Registered Holders (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to such Registered Holders as their names and addresses appear
in the Security Register, within the time prescribed, and (2) such notice shall
be sufficiently given to Holders of Bearer Securities or Coupons (unless
otherwise herein expressly provided) if published at least twice in an
Authorized Newspaper or Newspapers in The City of New York and, if Debt
Securities of such series are then listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, in a daily newspaper in London or Luxembourg or in such other
city or cities specified pursuant to Section 3.01 or in any Debt Security on
Business Days, the first such publication to be not earlier than the earliest
date and not later than two Business Days prior to the latest date prescribed
for the giving of such notice; provided, however, that, in any case, any notice
to Holders of Floating Rate Securities regarding the determination of a periodic
rate of interest, if such notice is required pursuant to Section 3.01, shall be
sufficiently given if given in the manner specified pursuant to Section 3.01.
In the event of suspension of regular mail service or by reason of
any other cause it shall be impracticable to give notice by mail, such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose hereunder.
In the event of suspension of publication of any Authorized
Newspapers or by reason of any other cause it shall be impracticable to give
notice by publication, such notification as shall be given with the approval of
the Trustee shall constitute sufficient notice for every purpose hereunder.
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Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance on such waiver. In any case where notice to Holders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given. In any case
where notice to Holders is given by publication, any defect in any notice so
published as to any particular Holder shall not affect the sufficiency of such
notice with respect to other Holders, and any notice which is published in the
manner herein provided shall be conclusively presumed to have been duly given.
Section 1.06. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the
duties imposed on any person by the provisions of Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 1.07. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 1.08. Successors and Assigns.
All covenants and agreements in this Indenture by the parties
hereto shall bind their respective successors and assigns and inure to the
benefit of their permitted successors and assigns, whether so expressed or not.
Section 1.09. Separability Clause.
In case any provision in this Indenture or in the Debt Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 1.10. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder, and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Governing Law.
This Indenture, the Debt Securities and the Coupons shall be
governed by and construed in accordance with the internal laws of the State of
New York.
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Section 1.12. Legal Holidays.
Unless otherwise specified pursuant to Section 3.01 or in any Debt
Security, in any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debt Security of any series shall not be a Business Day at any
Place of Payment for the Debt Securities of that series, then (notwithstanding
any other provision of this Indenture or of the Debt Securities or Coupons)
payment of principal (and premium, if any) or interest need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, Redemption Date or at the Stated Maturity, and no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be, to such Business Day if such payment is made or duly provided for on such
Business Day.
Section 1.13. No Security Interest Created.
Nothing in this Indenture or in the Debt Securities or Coupons,
express or implied, shall be construed to constitute a security interest under
the Uniform Commercial Code or similar legislation, as now or hereafter enacted
and in effect in any jurisdiction where property of the Company or its
Subsidiaries is or may be located.
Section 1.14. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on any Debt Securities or Coupons, or any part
thereof, or of the indebtedness represented thereby, or upon any obligation,
covenant or agreement of this Indenture, against any incorporator, or against
any stockholder, officer or director, as such, past, present or future, of the
Company (or any incorporator, stockholder, officer or director of any
predecessor or successor corporation), either directly or through the Company
(or any such predecessor or successor corporation), whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Debt Securities and Coupons are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be
incurred by, any such incorporator, stockholder, officer or director, past,
present or future, of the Company (or any incorporator, stockholder, officer or
director of any such predecessor or successor corporation), either directly or
indirectly through the Company or any such predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants, promises or agreements contained in this Indenture
or in any of the Debt Securities or Coupons or to be implied herefrom or
therefrom; and that any such personal liability is hereby expressly waived and
released as a condition of, and as part of the consideration for, the execution
of this Indenture and the issue of Debt Securities; provided, however, that
nothing herein or in the Debt Securities or Coupons contained shall be taken to
prevent recourse to and the enforcement of the liability, if any, of any
stockholder or subscriber to capital stock upon or in respect of the shares of
capital stock not fully paid.
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ARTICLE II
DEBT SECURITY FORMS
Section 2.01. Forms Generally.
The Debt Securities and the Coupons, if any, of each series shall
be substantially in one of the forms (including global form) established in or
pursuant to a Board Resolution or one or more indentures supplemental hereto,
and shall have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements placed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which any
series of the Debt Securities may be listed, or to conform to usage, all as
determined by the officers executing such Debt Securities and Coupons as
conclusively evidenced by their execution of such Debt Securities and Coupons.
If the form of a series of Debt Securities or Coupons (or any Global Note) is
established in or pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee, together with an Officers'
Certificate setting forth the form of such series, at or prior to the delivery
of the Company Order contemplated by Section 3.03 for the authentication and
delivery of such Debt Securities (or any such Global Note) or Coupons.
Unless otherwise specified as contemplated by Section 3.01, Debt
Securities in bearer form (other than in global form) shall have Coupons
attached.
The definitive Debt Securities and Coupons, if any, of each series
shall be printed, lithographed or engraved or produced by any combination of
these methods on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Debt Securities and Coupons, as
conclusively evidenced by their execution of such Debt Securities and Coupons.
Section 2.02. Form of Trustee's Certificate of Authentication.
The form of the Trustee's certificate of authentication to be borne
by the Debt Securities shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Debt Securities issued under the
within mentioned Indenture.
--------------------------
--------------------------
By
--------------------------
Authorized Signatory
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Section 2.03. Securities in Global Form.
If any Debt Security of a series is issuable in global form (a
"Global Note"), such Global Note may provide that it shall represent the
aggregate amount of Outstanding Debt Securities from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Debt
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Global Note to reflect the amount, or any
increase or decrease in the amount, of Outstanding Debt Securities represented
thereby shall be made by the Trustee and in such manner as shall be specified in
such Global Note. Any instructions by the Company with respect to a Global Note,
after its initial issuance, shall be in writing but need not comply with Section
1.02.
Global Notes may be issued in either registered or bearer form and
in either temporary or permanent form. Permanent Global Notes will be issued in
definitive form.
ARTICLE III
THE DEBT SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and (subject to
Section 3.03) set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of Debt Securities of
any series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of such series from all other series of
Debt Securities);
(2) the aggregate principal amount of such series of Debt
Securities and any limit, on the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered
upon transfer of, or in exchange for, or in lieu of, other Debt Securities
of such series pursuant to Sections 3.04, 3.05, 3.06, 11.06 or 13.07);
(3) the percentage of the principal amount at which the Debt
Securities of such series will be issued and, if other than the principal
amount thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of the maturity or upon redemption thereof or
the method by which such portion shall be determined.
(4) the date or dates on which or periods during which the Debt
Securities of the series may be issued, and the date or dates or the
method by which such date or dates will be determined, on which the
principal of (and premium, if any, on) the Debt Securities of such series
are or may be payable (which, if so provided in such Board Resolution or
supplemental indenture, may be determined by the Company from time to time
as set forth in the Debt Securities of the series issued from time to
time);
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(5) the rate or rates (which may be variable or fixed) at which the
Debt Securities of the series shall bear interest, if any, or the method
by which such rate or rates shall be determined, the date or dates from
which such interest, if any, shall accrue or the method by which such date
or dates shall be determined (which, in either case or both, if so
provided in such Board Resolution or supplemental indenture, may be
determined by the Company from time to time and set forth in the Debt
Securities of the series issued from time to time); and the Interest
Payment Dates on which such interest shall be payable (or the method of
determination thereof), and the Regular Record Dates, if any, for the
interest payable on such Interest Payment Dates and the notice, if any, to
Holders regarding the determination of interest, the manner of giving such
notice, the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months and any conditions or
contingencies as to the payment of interest in cash or otherwise, if any;
(6) the place or places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee (in the case of Registered
Securities) where the principal of (and premium, if any) and interest on
Debt Securities of the series shall be payable; the extent to which, or
the manner in which, any interest payable on any Global Note on an
Interest Payment Date will be paid, if other than in the manner provided
in Section 3.07; the extent, if any, to which the provisions of the last
sentence of Section 12.01 shall apply to the Debt Securities of the
series; and the manner in which any principal of, or premium, if any, on,
any Global Note will be paid, if other than as set forth elsewhere herein
and whether any Global Note will require any notation to evidence payment
of principal or interest;
(7) the obligation, if any, of the Company to redeem, repay,
purchase or offer to purchase Debt Securities of the series pursuant to
any mandatory redemption, sinking fund or analogous provisions or upon
other conditions or at the option of the Holder thereof and the period or
periods within which or the dates on which, the prices at which and the
terms and conditions upon which the Debt Securities of the series shall be
redeemed, repaid, purchased or offered to be purchased, in whole or in
part, pursuant to such obligation;
(8) the right, if any, of the Company to redeem the Debt Securities
of such series at its option and the period or periods within which, or
the date or dates on which, the price or prices at which, and the terms
and conditions upon which such Debt Securities may be redeemed, if any, in
whole or in part, at the option of the Company or otherwise;
(9) if the coin or Currency in which the Debt Securities shall be
issuable is in Dollars, the denominations of such Debt Securities if other
than denominations of $1,000 and any integral multiple thereof (except as
provided in Section 3.04);
(10) whether the Debt Securities of the series are to be issued as
Discount Securities and the amount of discount with which such Debt
Securities may be issued and, if other than the principal amount thereof,
the portion of the principal amount of Debt Securities of the series which
shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.02;
(11) provisions, if any, for the defeasance or discharge of certain
of the Company's obligations with respect to Debt Securities of the
series;
(12) whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer
Securities are issued, whether Coupons will be attached thereto, whether
such Bearer Securities of the series may be exchanged for Registered
Securities of
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the series, as provided in Section 3.05(b) or otherwise and the circumstances
under which and the place or places at which any such exchanges, if permitted,
may be made;
(13) whether provisions for payment of additional amounts or tax
redemptions shall apply and, if such provisions shall apply, such provisions;
and, if Bearer Securities of the series are to be issued, whether a procedure
other than that set forth in Section 3.04(b) shall apply and, if so, such other
procedure, and if the procedure set forth in Section 3.04(b) shall apply, the
forms of certifications to be delivered under such procedure;
(14) if other than Dollars, the Foreign Currency or Currencies in which
Debt Securities of the series shall be denominated or in which payment of the
principal of (and premium, if any) and interest on the Debt Securities of the
series may be made, and the particular provisions applicable thereto and, if
applicable, the amount of Debt Securities of the series which entitles the
Holder of a Debt Security of the series or its proxy to one vote for purposes of
Section 9.05;
(15) if the principal of (and premium, if any) or interest on Debt
Securities of the series are to be payable, at the election of the Company or a
Holder thereof, in a Currency other than that in which the Debt Securities are
denominated or payable without such election, in addition to or in lieu of the
provisions of Section 3.10, the period or periods within which and the terms and
conditions upon which, such election may be made and the time and the manner of
determining the exchange rate or rates between the Currency or Currencies in
which the Debt Securities are denominated or payable without such election and
the Currency or Currencies in which the Debt Securities are to be paid if such
election is made;
(16) the date as of which any Debt Securities of the series shall be
dated, if other than as set forth in Section 3.03;
(17) if the amount of payments of principal of (and premium, if any) or
interest on the Debt Securities of the series may be determined with reference
to an index, including, but not limited to, an index based on a Currency or
Currencies other than that in which the Debt Securities are denominated or
payable, or any other type of index, the manner in which such amounts shall be
determined;
(18) if the Debt Securities of the series are denominated or payable in a
Foreign Currency, any other terms concerning the payment of principal of (and
premium, if any) or any interest on such Debt Securities (including the Currency
or Currencies of payment thereof);
(19) the designation of the original Currency Determination Agent, if any;
(20) the applicable Overdue Rate, if any;
(21) if the Debt Securities of the series do not bear interest, the
applicable dates for purposes of Section 7.01;
(22) any addition to, or modification or deletion of, any Events of
Default, covenants or term of the subordination provided for with respect to
Debt Securities of the series;
(23) if Bearer Securities of the series are to be issued, (x) whether
interest in respect of any portion of a temporary Debt Security in global form
(representing all of the Outstanding Bearer
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Securities of the series) payable in respect of any Interest Payment Date
prior to the exchange of such temporary Debt Security for definitive Debt
Securities of the series shall be paid to any clearing organization with
respect to the portion of such temporary Debt Security held for its
account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received
by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date, (y) the terms upon which
interests in such temporary Debt Security in global form may be exchanged
for interests in a permanent Global Note or for definitive Debt Securities
of the series and the terms upon which interests in a permanent Global
Note, if any, may be exchanged for definitive Debt Securities of the
series and (z) the cities and the Authorized Newspapers designated for the
purposes of giving notices to Holders;
(24) whether the Debt Securities of the series shall be issued in
whole or in part in the form of one or more Global Notes and, in such
case, the U.S. Depositary or any Common Depositary for such Global Note or
Notes; and if the Debt Securities of the series are issuable only as
Registered Securities, the manner in which and the circumstances under
which Global Notes representing Debt Securities of the series may be
exchanged for Registered Securities in definitive form, if other than, or
in addition to, the manner and circumstances specified in Section 3.04(c);
(25) The designation, if any, of any depositaries, trustees (other
than the applicable Trustee), Paying Agents, Authenticating Agents,
Security Registrars (other than the Trustee) or other agents with respect
to the Debt Securities of such series;
(26) If the Debt Securities of such series will be issuable in
definitive form only upon receipt of certain certificates or other
documents or upon satisfaction of certain conditions, the form and terms
of such certificates, documents or conditions;
(27) Whether the Debt Securities of such series will be convertible
into shares of Common Stock and, if so, the terms and conditions, which
may be in addition to or in lieu of the provisions contained in the
Indenture, upon which such Debt Securities will be so convertible,
including the conversion price and the conversion period;
(28) The portion of the principal amount of the Debt Securities
which will be payable upon declaration of acceleration of the maturity
thereof, if other than the principal amount thereof;
(29) The nature, content and date for reports by the Company to the
holders of the Offered Debt Securities; and
(30) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially
identical except as to denomination, rate of interest, Stated Maturity and the
date from which interest, if any, shall accrue, which, as set forth above, may
be determined by the Company from time to time as to Debt Securities of a series
if so provided in or established pursuant to the authority granted in a Board
Resolution or in any such indenture supplemental hereto, and except as may
otherwise be provided in or pursuant to such Board Resolution and (subject to
Section 3.03) set forth in such Officers' Certificate, or in any such indenture
supplemental hereto. All Debt Securities of any one series need not be issued at
the same time, and unless otherwise provided, a series may be reopened for
issuance of additional Debt Securities of such series.
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If any of the terms of a series of Debt Securities is established
in or pursuant to a Board Resolution, a copy of such Board Resolution shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.02. Denominations.
In the absence of any specification pursuant to Section 3.01 with
respect to the Debt Securities of any series, the Debt Securities of such series
shall be issuable only as Registered Securities in denominations of $1,000 and
any integral multiple thereof and shall be payable only in Dollars.
Section 3.03. Execution, Authentication, Delivery and Dating.
The Debt Securities and the Coupons, if any, of any series shall be
executed on behalf of the Company by its Chairman, a Vice Chairman, its
President, one of its Vice Presidents or its Treasurer, under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers may be manual or facsimile.
Debt Securities and Coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Debt Securities and Coupons or did not hold such offices at the date of
such Debt Securities and Coupons.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Debt Securities, with appropriate
Coupons, if any, of any series, executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Debt Securities and Coupons and the Trustee in accordance with
the Company Order shall authenticate and deliver such Debt Securities and
Coupons; provided, however, that, in connection with its sale during the
"restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury Regulations), no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided, further, that a
Bearer Security (other than a temporary Global Note in bearer form) may be
delivered outside the United States in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have furnished
to the Euro-clear operator or to CEDEL a certificate substantially in the form
set forth in Exhibit A to this Indenture. If all the Debt Securities of any one
series are not to be issued at one time and if a Board Resolution or
supplemental indenture relating to such series shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Debt Securities such as interest rate, Stated Maturity, date of issuance
and date from which interest, if any, shall accrue. If any Debt Security shall
be represented by a permanent Global Note, then, for purposes of this Section
and Section 3.04, the notation of a beneficial owner's interest therein upon
original issuance of such Debt Security or upon exchange of a portion of a
temporary Global Note shall be deemed to be delivery in connection with the
original issuance of such beneficial owner's interest in such permanent Global
Note. Except as permitted by Section 3.06 or 3.07, the Trustee shall not
authenticate and deliver any Bearer Security unless all Coupons for interest
then matured have been detached and canceled.
The Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, prior to the authentication and
delivery of the Debt Securities and Coupons of such series, (i)
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the supplemental indenture or the Board Resolution by or pursuant to which the
form and terms of such Debt Securities and Coupons have been approved and (ii)
an Opinion of Counsel substantially to the effect that:
(1) the authentication order furnished by the Company to the
Trustee in connection with the authentication and delivery of such Debt
Securities and Coupons conforms to the requirements of this Indenture and
constitutes sufficient authority hereunder for the Trustee to authenticate
and deliver such Debt Securities and Coupons;
(2) the forms and terms of such Debt Securities and Coupons are
consistent with the provisions of this Indenture;
(3) in the event that the forms or terms of such Debt Securities
and Coupons have been established in a supplemental indenture, the
execution and delivery of such supplemental indenture has been duly
authorized by all necessary corporate action of the Company, such
supplemental indenture has been duly executed and delivered by the Company
and, assuming due authorization, execution and delivery by the Trustee, is
a valid and binding obligation enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(4) the execution and delivery of such Debt Securities and Coupons
have been duly authorized by all necessary corporate action of the Company
and such Debt Securities and Coupons have been duly executed by the
Company and, assuming due authentication by the Trustee and delivery by
the Company, are valid and binding obligations enforceable against the
Company in accordance with their terms, entitled to the benefit of the
Indenture, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and subject, as to enforceability,
to general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and subject to such other
exceptions as counsel shall request and as to which the Trustee shall not
reasonably object; and
(5) the amount of Debt Securities Outstanding of such series,
together with the amount of such Debt Securities, does not exceed any
limit established under the terms of this Indenture on the amount of Debt
Securities of such series that may be authenticated and delivered.
The Trustee shall not be required to authenticate such Debt
Securities and Coupons if the issuance of such Debt Securities and Coupons
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Debt Securities and this Indenture in a manner which is not
reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security (including any temporary or permanent or
other definitive Bearer Security in global form) shall be dated as of the date
of original issuance of the first Debt Security of such series to be issued,
except as otherwise provided pursuant to Section 3.01 with respect to the Bearer
Securities of any series.
No Debt Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Debt Security a certificate of authentication substantially in one of the forms
provided for herein duly executed by the Trustee or by an Authenticating Agent,
and such certificate upon any Debt Security shall be conclusive evidence, and
the only evidence, that such Debt Security
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has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Debt Security
shall have been duly authenticated and delivered hereunder but never issued and
sold by the Company, and the Company shall deliver such Debt Security to the
Trustee for cancellation as provided in Section 3.08 together with a written
statement (which need not comply with Section 1.02) stating that such Debt
Security has never been issued and sold by the Company, for all purposes of this
Indenture such Debt Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 3.04. Temporary Debt Securities; Exchange of Temporary
Global Notes for Definitive Bearer Securities; Global Notes Representing
Registered Securities.
(a) Pending the preparation of definitive Registered Securities of
any series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Registered Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination for Registered Securities of such series, substantially of the
tenor of the definitive Registered Securities in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Registered Securities may determine,
as conclusively evidenced by their execution of such Registered Securities.
Every such temporary Registered Security shall be executed by the Company and
shall be authenticated and delivered by the Trustee upon the same conditions and
in substantially the same manner, and with the same effect, as the definitive
Registered Securities in lieu of which they are issued. In the case of any
series issuable as Bearer Securities, such temporary Debt Securities may be in
global form, representing such of the Outstanding Debt Securities of such series
as shall be specified therein.
Except in the case of temporary Debt Securities in global form
(which shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series, of a like Stated Maturity and with
like terms and provisions, upon surrender of the temporary Debt Securities of
such series at the office or agency of the Company in a Place of Payment for
such series, without charge to the Holder, except as provided in Section 3.05 in
connection with a transfer. Upon surrender for cancellation of any one or more
temporary Debt Securities of any series (accompanied by any unmatured Coupons),
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt Securities of the
same series of authorized denominations and of a like Stated Maturity and like
terms and provisions; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security (including a permanent
Bearer Security in global form) shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section
3.03. Until so exchanged, the temporary Registered Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Registered Securities of such series.
(b) Unless otherwise specified pursuant to Section 3.01, all Bearer
Securities of a series shall be initially issued in the form of a single
temporary Bearer Security in global form (a "temporary Global Note"). The
Company shall execute, and upon Company Order the Trustee shall authenticate,
any temporary Global Note and any permanent Bearer Security in global form (as
described below, a "permanent Global Note") upon the same conditions and in
substantially the same manner, and with the same effect, as definitive Bearer
Securities, and the temporary or permanent Global Note, as the case may be,
shall, unless otherwise specified therein, be delivered by the Trustee to the
London office of a depositary or common depositary (the
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"Common Depositary"), for the benefit of the Euro-clear Operator or CEDEL, as
the case may be, for credit to the account of the Company (in the case of sales
of Bearer Securities by the Company directly to investors) or the managing
underwriter (in the case of sales of Bearer Securities by the Company to
underwriters) or such other accounts as the Company or the managing underwriter,
respectively, may direct.
On or after the date specified in or determined pursuant to the
terms of any temporary Global Note which (subject to any applicable laws and
regulations) shall be at least 40 days after the issue date of a temporary
Global Note (the "Exchange Date"), the Debt Securities represented by such
temporary Global Note may be exchanged for definitive Debt Securities (subject
to the second succeeding paragraph) or Debt Securities to be represented
thereafter by one or more permanent Global Notes in definitive form without
interest coupons. On or after the Exchange Date such temporary Global Note shall
be surrendered by the Common Depositary to the Trustee, as the Company's agent
for such purpose, at such address as the Trustee may specify and following such
surrender, the Trustee shall (1) endorse the temporary Global Note to reflect
the reduction of its principal amount by an equal aggregate principal amount of
such Debt Security, (2) endorse the applicable permanent Global Note, if any, to
reflect the initial amount, or an increase in the amount of Debt Securities
represented thereby, (3) manually authenticate such definitive Debt Securities
(including any permanent Global Note), (4) deliver such definitive Debt
Securities to the Holder thereof or, if such definitive Debt Security is a
permanent Global Note, deliver such permanent Global Note to the Common
Depositary to be held outside the United States for the accounts of the
Euro-clear Operator or CEDEL, as the case may be, for credit to the respective
accounts at Euro-clear Operator or CEDEL, as the case may be, designated by or
on behalf of the beneficial owners of such Debt Securities (or to such other
accounts as they may direct) and (5) redeliver such temporary Global Note to the
Common Depositary, unless such temporary Global Note shall have been canceled in
accordance with Section 3.08 hereof; provided, however, that, unless otherwise
specified in such temporary Global Note, upon such presentation by the Common
Depositary, such temporary Global Note shall be accompanied by a certificate
dated the Exchange Date or a subsequent date and signed by the Euro-clear
Operator, as to the portion of such temporary Global Note held for its account
then to be exchanged for definitive Debt Securities (including any permanent
Global Note), and a certificate dated the Exchange Date or a subsequent date and
signed by CEDEL, as to the portion of such temporary Global Note held for its
account then to be exchanged for definitive Debt Securities (including any
permanent Global Note), each substantially in the form set forth in Exhibit B to
this Indenture. Each certificate substantially in the form of Exhibit B hereto
of the Euro-clear Operator or CEDEL, as the case may be, shall be based on
certificates of the account holders listed in the records of the Euro-clear
Operator or CEDEL, as the case may be, as being entitled to all or any portion
of the applicable temporary Global Note. An account holder of the Euro-clear
Operator or CEDEL, as the case may be, desiring to effect the exchange of an
interest in a temporary Global Note for an interest in definitive Debt
Securities (including any permanent Global Note) shall instruct the Euro-clear
Operator or CEDEL, as the case may be, to request such exchange on its behalf
and shall deliver to the Euro-clear Operator or CEDEL, as the case may be, a
certificate substantially in the form of Exhibit A hereto and dated no earlier
than 10 days prior to the Exchange Date. Until so exchanged, temporary Global
Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Debt Securities (including any permanent Global Note) of
the same series authenticated and delivered hereunder, except as to payment of
interest, if any.
The delivery to the Trustee by the Euro-clear Operator or CEDEL of
any certificate substantially in the form of Exhibit B hereto may be relied upon
by the Company and the Trustee as conclusive evidence that a corresponding
certificate or certificates has or have been delivered to the Euro-clear
Operator or CEDEL, as the case may be, pursuant to the terms of this Indenture.
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On or prior to the Exchange Date, the Company shall deliver to the
Trustee definitive Debt Securities in an aggregate principal amount equal to the
principal amount of such temporary Global Note, executed by the Company. At any
time, on or after the Exchange Date, upon 30 days' notice to the Trustee by the
Euro-clear Operator or CEDEL, as the case may be, acting at the request of or on
behalf of the beneficial owner, a Debt Security represented by a temporary
Global Note or a permanent Global Note, as the case may be, may be exchanged, in
whole or from time to time in part, for definitive Debt Securities without
charge and the Trustee shall authenticate and deliver, in exchange for each
portion of such temporary Global Note or such permanent Global Note, an equal
aggregate principal amount of definitive Debt Securities of the same series of
authorized denominations and of a like Stated Maturity and with like terms and
conditions, as the portion of such temporary Global Note or such permanent
Global Note to be exchanged, which, unless the Debt Securities of the series are
not issuable both as Bearer Securities and as Registered Securities, as
contemplated by Section 3.01, shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that definitive Bearer Securities
shall be delivered in exchange for a portion of the temporary Global Note or the
permanent Global Note only in compliance with the requirements of the second
preceding paragraph. On or prior to the forty-fifth day following receipt by the
Trustee of such notice with respect to a Debt Security, or, if such day is not a
Business Day, the next succeeding Business Day, the temporary Global Note or the
permanent Global Note, as the case may be, shall be surrendered by the Common
Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Debt Securities
without charge following such surrender, upon the request of the Euro-clear
Operator or CEDEL, as the case may be, and the Trustee shall (1) endorse the
applicable temporary Global Note or the permanent Global Note to reflect the
reduction of its principal amount by the aggregate principal amount of such Debt
Security, (2) cause the terms of such Debt Security and Coupons, if any, to be
entered on a definitive Debt Security, (3) manually authenticate such definitive
Debt Security, and (4) if a Bearer Security is to be delivered, deliver such
definitive Debt Security to an address outside the United States to the
Euro-clear Operator or CEDEL, as the case may be, for or on behalf of the
beneficial owner thereof, in exchange for a portion of such temporary Global
Note or the permanent Global Note.
Unless otherwise specified in such temporary Global Note or the
permanent Global Note, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Note or the permanent Global Note,
except that a Person receiving definitive Debt Securities must bear the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Debt Securities in person at the
offices of the Euro-clear Operator or CEDEL. Definitive Debt Securities in
bearer form to be delivered in exchange for any portion of a temporary Global
Note or the permanent Global Note shall be delivered only to an address outside
the United States. Notwithstanding the foregoing, in the event of redemption or
acceleration of all or any part of a temporary Global Note prior to the Exchange
Date, a permanent Global Note or definitive Bearer Securities, as the case may
be, will not be issuable in respect of such temporary Global Note or such
portion thereof, and payment thereon will instead be made as provided in such
temporary Global Note.
Until exchanged in full as hereinabove provided, any temporary
Global Note or the permanent Global Note shall in all respects be entitled to
the same benefits under this Indenture as definitive Debt Securities of the same
series and tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 3.01, interest payable on such
temporary Global Note on an Interest Payment Date for Debt Securities of such
series occurring prior to the applicable Exchange Date shall be payable to the
Euro-clear Operator or CEDEL on such Interest Payment Date upon delivery by the
Euro-clear Operator or CEDEL to the Trustee of a certificate or certificates
substantially in the form set forth in Exhibit B to this Indenture, for credit
without further interest on or after such Interest Payment Date to the
respective
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accounts of the Persons who are the beneficial owners of such temporary Global
Note on such Interest Payment Date and who have each delivered to the Euro-clear
Operator or CEDEL, as the case may be, a certificate substantially in the form
set forth in Exhibit A to this Indenture.
Any definitive Bearer Security authenticated and delivered by the
Trustee in exchange for a portion of a temporary Global Note or the permanent
Global Note shall not bear a coupon for any interest which shall theretofore
have been duly paid by the Trustee to the Euro-clear Operator or CEDEL, or by
the Company to the Trustee in accordance with the provisions of this Section
3.04.
With respect to Exhibits A and B to this Indenture, the Company
may, in its discretion and if required or desirable under applicable law or as
set forth in any Board Resolution or Supplemental Indenture with respect to any
Series of Debt Securities, substitute one or more other forms of such exhibits
for such exhibits, eliminate the requirement that any or all certificates be
provided, or change the time that any certificate may be required, provided that
such substitute form or forms or notice of elimination or change of such
certification requirement have theretofore been delivered to the Trustee with a
Company Request and such form or forms, elimination or change is reasonably
acceptable to the Trustee.
(c) If the Company shall establish pursuant to Section 3.01 that
the Registered Securities of a series are to be issued in whole or in part in
the form of one or more Global Notes, then the Company shall execute and the
Trustee shall, in accordance with Section 3.03 and the Company Order with
respect to such series, authenticate and deliver one or more Global Notes in
temporary or permanent form that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of the Outstanding Debt
Securities of such series to be represented by one or more Global Notes, (ii)
shall be registered in the name of the U.S. Depositary for such Global Note or
Notes or the nominee of such depositary, and (iii) shall bear a legend
substantially to the following effect: "This Debt Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary, unless and until this Debt Security is
exchanged in whole or in part for Debt Securities in definitive form."
Notwithstanding any other provision of this Section or Section
3.05, unless and until it is exchanged in whole or in part for Registered
Securities in definitive form, a Global Note representing all or a portion of
the Registered Securities of a series may not be transferred except as a whole
by the U.S. Depositary for such series to a nominee of such depositary or by a
nominee of such depositary to such depositary or another nominee of such
depositary or by such depositary or any such nominee to a successor U.S.
Depositary for such series or a nominee of such successor depositary.
If at any time the U.S. Depositary for the Debt Securities of a
series notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of a series shall no longer be a clearing agency
registered and in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company shall appoint a
successor U.S. Depositary with respect to the Debt Securities of such series. If
a successor U.S. Depositary for the Debt Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series, will authenticate and deliver,
Registered Securities of such series in definitive form in an aggregate
principal amount equal to the principal amount of the Global Note or Notes
representing such series in exchange for such Global Note or Notes.
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The Company may at any time and in its sole discretion determine
that the Registered Securities of any series issued in the form of one or more
Global Notes shall no longer be represented by such Global Note or Notes. In
such event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
If the Registered Securities of any series shall have been issued
in the form of one or more Global Notes and if an Event of Default with respect
to the Debt Securities of such series shall have occurred and be continuing, the
Company will promptly execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
If specified by the Company pursuant to Section 3.01 with respect
to Registered Securities of a series, the U.S. Depositary for such series of
Registered Securities may surrender a Global Note for such series of Debt
Securities in exchange in whole or in part for Registered Securities of such
series in definitive form on such terms as are acceptable to the Company and
such depositary. Thereupon, the Company shall execute and the Trustee shall
authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new
Registered Security or Securities of the same series, of any authorized
denomination as requested by such Person in an aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
Global Note; and
(ii) to the U.S. Depositary a new Global Note in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Note and the aggregate principal amount of Registered
Securities delivered to Holders thereof.
Upon the exchange of a Global Note for Registered Securities in
definitive form, such Global Note shall be canceled by the Trustee. Debt
Securities issued in exchange for a Global Note pursuant to this subsection (c)
shall be registered in such names and in such authorized denominations as the
U.S. Depositary for such Global Note, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debt Securities to the Persons in whose names such Debt
Securities are so registered.
Section 3.05. Registration, Transfer and Exchange.
(a) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the registers maintained in such office and in
any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and of transfers and exchanges of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and registering transfers and
exchanges of Registered Securities as herein provided; provided, however, that
the Company may appoint co-Security Registrars or the terms of any series of
Debt Securities may provide otherwise.
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Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained for
such purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, one or more new Registered
Securities of the same series of like aggregate principal amount of such
denominations as are authorized for Registered Securities of such series and of
a like Stated Maturity and with like terms and conditions.
Except as otherwise provided in Section 3.04 and this Section 3.05,
at the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of like aggregate
principal amount and of a like Stated Maturity and with like terms and
conditions, upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive.
(b) If and to the extent specified pursuant to Section 3.01, the
provisions of this Section 3.05(b) shall be applicable to Debt Securities of any
series which are Bearer Securities. At the option of the Holder thereof, to the
extent permitted by law, any Bearer Security of any series which by its terms is
registrable as to principal and interest may be exchanged for a Registered
Security of such series of like aggregate principal amount and of a like Stated
Maturity and with like terms and conditions upon surrender of such Bearer
Security at the Corporate Trust Office or at any other office or agency of the
Company designated pursuant to Section 3.01 for the purpose of making any such
exchanges. Any Coupon Security surrendered for exchange shall be surrendered
with all unmatured Coupons and any matured Coupons in default attached thereto.
If the Holder of a Bearer Security is unable to produce any such unmatured
Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that except as otherwise provided in Section 12.03, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and of a like Stated Maturity and with like terms and
conditions after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
Person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture. The Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Security or Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities
for Registered Securities will be subject to the provisions of United States
income tax laws and regulations applicable to Debt Securities in effect at the
time of such exchange.
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(c) Except as otherwise specified pursuant to Section 3.01, in no
event may Registered Securities, including Registered Securities received in
exchange for Bearer Securities, be exchanged for Bearer Securities.
(d) All Debt Securities issued upon any transfer or exchange of
Debt Securities shall be valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Debt
Securities surrendered for such transfer or exchange.
Every Registered Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar, duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge will be made for any transfer or exchange of Debt
Securities except as provided in Section 3.04(b) or 3.06. The Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration, transfer or
exchange of Debt Securities, other than those expressly provided in this
Indenture to be made at the Company's own expense or without expense or without
charge to the Holders.
The Company shall not be required (i) to register, transfer or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before the day of the transmission of a notice of redemption
of Debt Securities of such series selected for redemption under Section 13.03
and ending at the close of business on the day of such transmission, or (ii) to
register, transfer or exchange any Debt Security so selected for redemption in
whole or in part, except the unredeemed portion of any Debt Security being
redeemed in part.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt
Securities.
If (i) any mutilated Debt Security or any mutilated Coupon with the
Coupon Security to which it appertains (and all unmatured Coupons attached
thereto) is surrendered to the Trustee at its Corporate Trust Office, or (ii)
the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Debt Security or any Coupon, and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them and any Paying Agent harmless, and neither
the Company nor the Trustee receives notice that such Debt Security or Coupon
has been acquired by a bona fide purchaser, then the Company shall execute and
upon Company Request the Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Debt Security or in
exchange for the Coupon Security to which such mutilated, destroyed, lost or
stolen Coupon appertained, a new Debt Security of the same series of like Stated
Maturity and with like terms and conditions and like principal amount, bearing a
number not contemporaneously Outstanding, and, in the case of a Coupon Security,
with such Coupons attached thereto that neither gain nor loss in interest shall
result from such exchange or substitution.
In case any such mutilated, destroyed, lost or stolen Debt Security
or Coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay the amount due on
such Debt Security or Coupon in accordance with its terms; provided, however,
that principal of (and premium, if any) and any interest on Bearer Securities
shall, except as otherwise provided in Section 12.03, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01 or except as otherwise provided in
this Section 3.06, any interest
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on Bearer Securities shall be payable only upon presentation and surrender of
the Coupons appertaining thereto.
Upon the issuance of any new Debt Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debt Security or Coupon of any series issued pursuant to
this Section shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Debt Security or
Coupon shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Debt Securities or Coupons of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debt Securities or Coupons.
Section 3.07. Payment of Interest; Interest Rights Preserved.
(a) Interest on any Registered Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest notwithstanding the cancellation of such Registered Security
upon any transfer or exchange subsequent to the Regular Record Date. Unless
otherwise specified as contemplated by Section 3.01 with respect to the Debt
Securities of any series, payment of interest on Registered Securities shall be
made at the place or places specified pursuant to Section 3.01 or, at the option
of the Company, by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or, if provided pursuant to
Section 3.01, by wire transfer to an account designated by the Registered
Holder.
(b) Interest on any Coupon Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Holder of the Coupon which has matured on such Interest Payment Date upon
surrender of such Coupon on such Interest Payment Date at the Corporate Trust
Office of the Trustee or at such other Place of Payment outside the United
States specified pursuant to Section 3.01.
Interest on any Bearer Security (other than a Coupon Security)
which is payable and is punctually paid or duly provided for on any Interest
Payment Date shall be paid to the Holder of the Bearer Security upon
presentation of such Bearer Security and notation thereon on such Interest
Payment Date at the Corporate Trust Office of the Trustee or at such other Place
of Payment maintained by the Company outside the United States specified
pursuant to Section 3.01.
Unless otherwise specified pursuant to Section 3.01, at the
direction of the Holder of any Bearer Security or Coupon payable in Dollars,
payment on such Bearer Security or Coupon will be made by check drawn on a bank
in The City of Boston or, if agreeable to the Trustee, by wire transfer to a
Dollar account maintained by such Holder outside the United States. If such
payment at the offices of all Paying Agents outside the United States becomes
illegal or is effectively precluded because of the imposition of exchange
controls or similar restrictions on the full payment or receipt of such amounts
in Dollars, the Company will appoint an office or agent in the United States at
which such payment may be made. Unless
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otherwise specified pursuant to Section 3.01, at the direction of the Holder of
any Bearer Security or Coupon payable in a Foreign Currency, payment on such
Bearer Security or Coupon will be made by a check drawn on a bank outside the
United States or by wire transfer to an appropriate account maintained by such
Holder outside the United States. Except as provided in this paragraph, no
payment on any Bearer Security or Coupon will be made by mail to an address in
the United States or by wire transfer to an account in the United States.
(c) Any interest on any Debt Security which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") shall, if such Debt Security is a Registered Security,
forthwith cease to be payable to the Registered Holder on the relevant Regular
Record Date by virtue of his having been such Registered Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each such Registered Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money in the Currency or Currency unit in which the Debt Securities of
such series are payable (except as otherwise specified pursuant to
Sections 3.01 or 3.10) equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which date shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to the Holders of such Registered Securities at their
addresses as they appear in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(d) Any Defaulted Interest payable in respect of Bearer Securities
of any series shall be payable pursuant to such procedures as may be
satisfactory to the Trustee in such manner that there is no discrimination
between the Holders of Registered Securities (if any) and Bearer Securities of
such series, and notice of the payment date therefor shall be given by the
Trustee, in the name and at the expense of the Company, in the manner provided
in Section 1.05 not more than 25 days and not less than 20 days prior to the
date of the proposed payment.
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(e) Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debt Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debt Security.
Section 3.08. Cancellation.
Unless otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, all Debt Securities surrendered for payment,
redemption, transfer, exchange or credit against any sinking fund and all
Coupons surrendered for payment or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee. All Registered Securities
and matured Coupons so delivered shall be promptly canceled by the Trustee. All
Bearer Securities and unmatured Coupons so delivered shall be held by the
Trustee and, upon instruction by the Company Order, shall be canceled or held
for reissuance. Bearer Securities and unmatured Coupons held for reissuance may
be reissued only in exchange for Bearer Securities of the same series and of
like Stated Maturity and with like terms and conditions pursuant to Section 3.05
or in replacement of mutilated, lost, stolen or destroyed Bearer Securities of
the same series and of like Stated Maturity and with like terms and conditions
or the related Coupons pursuant to Section 3.06. All Bearer Securities and
unmatured Coupons held by the Trustee pending such cancellation or reissuance
shall be deemed to be delivered for cancellation for all purposes of this
Indenture and the Securities. The Company may at any time deliver to the Trustee
for cancellation any Debt Securities or Coupons previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Debt Securities previously authenticated
hereunder which the Company has not issued, and all Debt Securities or Coupons
so delivered shall be promptly canceled by the Trustee. No Debt Securities or
Coupons shall be authenticated in lieu of or in exchange for any Debt Securities
or Coupons canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Debt Securities and Coupons held by the Trustee
shall be delivered to the Company upon Company Request. The acquisition of any
Debt Securities or Coupons by the Company shall not operate as a redemption or
satisfaction of the indebtedness represented thereby unless and until such Debt
Securities or Coupons are surrendered to the Trustee for cancellation. In the
case of any temporary Global Note which shall be destroyed if the entire
aggregate principal amount of the Debt Securities represented thereby has been
exchanged, the certificate of destruction shall state that all certificates
required pursuant to Section 3.04 hereof and substantially in the form of
Exhibit B hereto, to be given by the Euro-clear Operator or CEDEL, have been
duly presented to the Trustee by the Euro-clear Operator or CEDEL, as the case
may be. Permanent Global Notes shall not be destroyed until exchanged in full
for definitive Debt Securities or until payment thereon is made in full.
Section 3.09. Computation of Interest.
Except as otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.10. Currency of Payments in Respect of Debt Securities.
(a) Except as otherwise specified pursuant to Section 3.01 for
Bearer Securities of any series, payment of the principal of (and premium, if
any) and interest on Bearer Securities of such series denominated in any
Currency will be made in such Currency.
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(b) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (c) below or the Holders of
which have not made the election provided for in paragraph (c) below, except as
provided in paragraph (e) below, payment of the principal of (and premium, if
any) and any interest on any Registered Security of such series will be made in
the Currency in which such Registered Security is payable.
(c) It may be provided pursuant to Section 3.01 with respect to the
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (e) and (f) below (and provided that in no instance may such
election be made after a defeasance pursuant to Article XV or during the
continuance of an Event of Default), to receive payments of principal of (and
premium, if any) and any interest on such Registered Securities in any of the
Currencies which may be designated for such election in the applicable
supplemental indenture by delivering to the Trustee a written election, to be in
form and substance satisfactory to the Trustee, not later than the close of
business on the Election Date immediately preceding the applicable payment date.
If a Holder so elects to receive such payments in any such Currency, such
election will remain in effect for such Holder or any transferee of such Holder
until changed by such Holder or such transferee by written notice to the Trustee
(but any such change must be made not later than the close of business on the
Election Date immediately preceding the next payment date to be effective for
the payment to be made on such payment date and no such change or election may
be made with respect to payments to be made on any Registered Security of such
series with respect to which an Event of Default has occurred or notice of
redemption has been given by the Company pursuant to Article Thirteen). Any
Holder of any such Registered Security who shall not have delivered any such
election to the Trustee by the close of business on the applicable Election Date
will be paid the amount due on the applicable payment date in the relevant
Currency as provided in paragraph (b) of this Section 3.10.
(d) If the election referred to in paragraph (c) above has been
provided for pursuant to Section 3.01, then not later than the fourth Business
Day after the Election Date for each payment date, the Trustee will deliver to
the Company a written notice specifying, in the Currency in which each series of
the Registered Securities is payable, the respective aggregate amounts of
principal of (and premium, if any) and any interest on the Registered Securities
to be paid on such payment date, specifying the amounts so payable in respect of
the Registered Securities as to which the Holders of Registered Securities
denominated in any Currency shall have elected to be paid in another Currency as
provided in paragraph (c) above. If the election referred to in paragraph (c)
above has been provided for pursuant to Section 3.01 and if at least one Holder
has made such election, then, on the second Business Day preceding each payment
date, the Company will deliver to the Trustee an Exchange Rate Officer's
Certificate in respect of the Currency payments to be made on such payment date.
The Currency amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (c) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the third Business Day (the "Valuation Date") immediately preceding
each payment date.
(e) If a Conversion Event occurs with respect to a Foreign
Currency, the ECU or any other Currency unit in which any of the Debt Securities
are denominated or payable other than pursuant to an election provided for
pursuant to paragraph (c) above, then with respect to each date for the payment
of principal of (and premium, if any) and any interest on the applicable Debt
Securities denominated or payable in such Foreign Currency, the ECU or such
other Currency unit occurring after the last date on which such Foreign
Currency, the ECU or such other Currency unit was used (the "Conversion Date"),
the Dollar shall be the Currency of payment for use on each such payment date.
The Dollar amount to be paid by the Company to the Trustee and by the Trustee or
any Paying Agent to the Holders of such Debt Securities with respect to such
payment date shall be the Dollar Equivalent of the Foreign Currency or, in the
case of a Currency unit,
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the Dollar Equivalent of the Currency Unit, in each case as determined by the
Currency Determination Agent, if any, or, if there shall not be a Currency
Determination Agent, then by the Trustee, in the manner provided in paragraph
(g) or (h) below.
(f) If the Holder of a Registered Security denominated in any
Currency shall have elected to be paid in another Currency as provided in
paragraph (c) above, and a Conversion Event occurs with respect to such elected
Currency, such Holder shall receive payment in the Currency in which payment
would have been made in the absence of such election. If a Conversion Event
occurs with respect to the Currency in which payment would have been made in the
absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (e) of this Section 3.10.
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Currency Determination Agent, and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Currency Determination Agent, and subject to the provisions of
paragraph (i) below, shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market Exchange
Rate for such Component Currency on the Valuation Date with respect to each
payment.
(i) For purposes of this Section 3.10 the following terms shall
have the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component Currency of the relevant Currency unit,
including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number
of units of such Component Currency or fractions thereof which were
represented in the relevant Currency unit, including, but not limited to,
the ECU, on the Conversion Date. If after the Conversion Date the official
unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall be
divided or multiplied in the same proportion. If after the Conversion Date
two or more Component Currencies are consolidated into a single Currency,
the respective Specified Amounts of such Component Currencies shall be
replaced by an amount in such single Currency equal to the sum of the
respective Specified Amounts of such consolidated Component Currencies
expressed in such single Currency, and such amount shall thereafter be a
Specified Amount and such single Currency shall thereafter be a Component
Currency. If after the Conversion Date any Component Currency shall be
divided into two or more Currencies, the Specified Amount of such
Component Currency shall be replaced by amounts of such two or more
Currencies with appropriate Dollar equivalents at the Market Exchange Rate
on the date of such replacement equal to the Dollar equivalent of the
Specified Amount of such former Component Currency at the Market Exchange
Rate on such date, and such amounts shall thereafter be Specified Amounts
and such Currencies shall thereafter be Component Currencies. If after the
Conversion Date of the relevant Currency unit, including but not limited
to, the ECU, a Conversion Event (other than any event referred to above in
this definition of "Specified Amount") occurs with respect to any
Component Currency of such Currency unit, the Specified Amount of such
Component Currency shall, for purposes of calculating the Dollar
Equivalent of the Currency Unit, be converted into Dollars at the Market
Exchange Rate in effect on the Conversion Date of such Component Currency.
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"Election Date" shall mean the earlier of (i) the seventh Business
Day immediately preceding any payment date or (ii) the record date with
respect to any payment date, and with respect to the Maturity shall mean
the record date (if within 16 or fewer days prior to the Maturity)
immediately preceding the Maturity, and with respect to any series of Debt
Securities whose record date immediately preceding the Maturity is more
than 16 days prior to the Maturity or any series of Debt Securities for
which no record dates are provided with respect to interest payments,
shall mean the date which is 16 days prior to the Maturity.
(j) All decisions and determinations of the Trustee or the Currency
Determination Agent, if any, regarding the Dollar Equivalent of the Foreign
Currency, the Dollar Equivalent of the Currency Unit and 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 Company
and all Holders of the Debt Securities denominated or payable in the relevant
Currency. In the event of a Conversion Event with respect to a Foreign Currency,
the Company, after learning thereof, will immediately give written notice
thereof to the Trustee (and the Trustee will promptly thereafter give notice in
the manner provided in Section 1.05 to the Holders) specifying the Conversion
Date. In the event of a Conversion Event with respect to the ECU or any other
Currency unit in which Debt Securities are denominated or payable, the Company,
after learning thereof, will immediately give notice thereof to the Trustee (and
the Trustee will promptly thereafter give written notice in the manner provided
in Section 1.05 to the Holders) specifying the Conversion Date and the Specified
Amount of each Component Currency on the Conversion Date. In the event of any
subsequent change in any Component Currency as set forth in the definition of
Specified Amount above, the Company, after learning thereof, will similarly give
written notice to the Trustee. The Trustee shall be fully justified and
protected in relying and acting upon information received by it from the Company
and the Currency Determination Agent, if any, and shall not otherwise have any
duty or obligation to determine such information independently.
(k) For purposes of any provision of the Indenture where the
Holders of Outstanding Debt Securities may perform an Act which requires that a
specified percentage of the Outstanding Debt Securities of all series perform
such Act and for purposes of any decision or determination by the Trustee of
amounts due and unpaid for the principal (and premium, if any) and interest on
the Debt Securities of all series in respect of which moneys are to be disbursed
ratably, the principal of (and premium, if any) and interest on the Outstanding
Debt Securities denominated in a Foreign Currency will be the amount in Dollars
based upon the Market Exchange Rate for Debt Securities of such series, as of
the date for determining whether the Holders entitled to perform such Act have
performed it, or as of the date of such decision or determination by the
Trustee, as the case may be.
(l) The Company hereby appoints itself as the initial Currency
Determination Agent and the Company shall be entitled to remove such agent at
any time; provided, however, that such removal shall not be effective and the
agent may not resign until a successor has been appointed by the Company and the
successor has accepted such appointment. The Trustee is under no duty or
obligation to serve in the capacity of Currency Determination Agent.
Section 3.11. Judgments.
If for the purpose of obtaining a judgment in any court with
respect to any obligation of the Company hereunder or under any Debt Security,
it shall become necessary to convert into any other Currency any amount in the
Currency due hereunder or under such Debt Security, then such conversion shall
be made at the Market Exchange Rate as in effect on the date the Company shall
make payment to any Person in satisfaction of such judgment. If pursuant to any
such judgment, conversion shall be made on a date other than
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the date payment is made and there shall occur a change between such Market
Exchange Rate and the Market Exchange Rate as in effect on the date of payment,
the Company agrees to pay such additional amounts (if any) as may be necessary
to ensure that the amount paid is equal to the amount in such other Currency
which, when converted at the Market Exchange Rate as in effect on the date of
payment or distribution, is the amount then due hereunder or under such Debt
Security. Any amount due from the Company under this Section 3.11 shall be due
as a separate debt and is not to be affected by or merged into any judgment
being obtained for any other sums due hereunder or in respect of any Debt
Security. In no event, however, shall the Company be required to pay more in the
Currency or Currency unit due hereunder or under such Debt Security at the
Market Exchange Rate as in effect when payment is made than the amount of
Currency stated to be due hereunder or under such Debt Security so that in any
event the Company's obligations hereunder or under such Debt Security will be
effectively maintained as obligations in such Currency, and the Company shall be
entitled to withhold (or be reimbursed for, as the case may be) any excess of
the amount actually realized upon any such conversion over the amount due and
payable on the date of payment or distribution.
Section 3.12. Exchange Upon Default.
If default is made in the payments referred to in Section 12.01,
the Company hereby undertakes that upon presentation and surrender of a
permanent Global Note to the Trustee (or to any other Person or at any other
address as the Company may designate in writing), on any Business Day on or
after the maturity date thereof the Company will issue and the Trustee will
authenticate and deliver to the bearer of such permanent Global Note duly
executed and authenticated definitive Debt Securities with the same issue date
and maturity date as set out in such permanent Global Note.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
This Indenture, with respect to the Debt Securities of any series
(if all series issued under this Indenture are not to be affected), shall, upon
Company Request, cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of such Debt Securities herein
expressly provided for and rights to receive payments of principal (and premium,
if any) and interest on such Debt Securities) and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Debt Securities and the Coupons, if any, of such series
theretofore authenticated and delivered (other than (i) Debt Securities
and Coupons of such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.06, (ii) Coupons
appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not
required or has been waived under Section 3.05, (iii) Coupons appertaining
to Bearer Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in Section
13.06, and (iv) Debt Securities and Coupons of such series for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
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discharged from such trust, as provided in Section 12.04) have been
delivered to the Trustee for cancellation; or
(B) all Debt Securities and the Coupons, if any, of such series not
theretofore delivered to the Trustee for cancellation,
(i) have become due and payable by reason of the making of a
notice of redemption or otherwise, or
(ii) will become due and payable at their Stated Maturity
within one year,
and the Company, either complies with any other condition or terms
specified pursuant to Section 3.01, or if not so specified in the case of
(i), (ii) or (iii) of this subclause (B), has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust solely for
the benefit of the Holders, cash in United States Dollars, non-callable
government securities, or a combination thereof, in such amounts as will
be (except as otherwise provided pursuant to Section 3.01 or 3.10)
sufficient without consideration of any reinvestment of interest, to pay
and discharge the entire indebtedness on such Debt Securities not
delivered to the Trustee for cancellation for principal, premium, if any
and accrued interest to the date of such deposit (in the case of Debt
Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture with respect to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Trustee to any Authenticating Agent under Section 6.14, the obligations of
the Company under Section 12.01, and, if money shall have been deposited with
the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 4.02 and the last paragraph of Section
12.04, shall survive. If, after the deposit referred to in Section 4.01 has been
made, (x) the Holder of a Debt Security is entitled to, and does, elect pursuant
to Section 3.10(c), to receive payment in a Currency other than that in which
the deposit pursuant to Section 4.01 was made, or (y) if a Conversion Event
occurs with respect to the Currency in which the deposit was made or elected to
be received by the Holder pursuant to Section 3.10(c), then the indebtedness
represented by such Debt Security shall be fully discharged to the extent that
the deposit made with respect to such Debt Security shall be converted into the
Currency in which such payment is made.
Section 4.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 12.04,
all money deposited with the Trustee pursuant to Section 4.01 shall be held in
trust and applied by it, in accordance with the provisions of the Debt
Securities and Coupons, if any, and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such money
has been deposited with the Trustee.
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ARTICLE V
REMEDIES
Section 5.01. Events of Default.
"Event of Default" wherever used herein with respect to Debt
Securities of any series means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Debt Security
or any payment with respect to the Coupons, if any, of such series when it
becomes due and payable, and continuance of such default for a period of
30 days; or
(2) default in the payment of the principal of (and premium, if
any, on) any Debt Security of such series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Debt Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which expressly has been included
in this Indenture solely for the benefit of Debt Securities of a series
other than such series), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding Debt
Securities of such series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an involuntary
case under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or State bankruptcy, insolvency or other
similar law, or a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company under any applicable Federal or State law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law,
or the consent by it to the entry of an order for relief in an involuntary
case under any such law or to the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of
the Company or of any substantial part of its property, or the making by
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it of an assignment for the benefit of its creditors, or the admission by
it in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company in furtherance of
any such action; or
(7) any other Event of Default provided with respect to Debt
Securities of that series pursuant to Section 3.01.
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Debt Securities of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series may declare the principal amount (or,
if any Debt Securities of such series are Discount Securities, such portion of
the principal amount of such Discount Securities as may be specified in the
terms of such Discount Securities) of all the Debt Securities of such series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) plus accrued and unpaid interest (and premium, if
payable) shall become immediately due and payable. Upon payment of such amount
in the Currency in which such Debt Securities are denominated (except as
otherwise provided pursuant to Sections 3.01 or 3.10), all obligations of the
Company in respect of the payment of principal of the Debt Securities of such
series shall terminate.
At any time after such a declaration of acceleration with respect
to Debt Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum in the
Currency in which such Debt Securities are denominated (except as
otherwise provided pursuant to Section 3.01 or 3.10) sufficient to pay
(A) all overdue installments of interest on all Debt Securities
or all overdue payments with respect to any Coupons of such
series,
(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due otherwise
than by such declaration of acceleration and interest thereon
at the rate or rates prescribed therefor in such Debt
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on each Debt
Security of such series or upon overdue payments on any
Coupons of such series at the Overdue Rate, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; provided, however,
that all sums payable under this clause (D) shall be paid in
Dollars;
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and
(2) All Events of Default with respect to Debt Securities of such
series, other than the nonpayment of the principal of Debt Securities of
such series which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission and waiver shall affect any subsequent default or impair any
right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest
on any Debt Security or any payment with respect to any Coupons when such
interest or payment becomes due and payable and such default continues for
a period of 30 days,
(2) default is made in the payment of principal of (or premium, if
any, on) any Debt Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking
fund payment or analogous obligation when the same becomes due pursuant to
the terms of the Debt Securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities or of such Coupons, the amount then due and
payable on such Debt Securities or matured Coupons, for the principal (and
premium, if any) and interest, if any, and, to the extent that payment of such
interest shall be legally enforceable, interest upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at the Overdue Rate;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amount forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities and Coupons,
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Debt
Securities and Coupons wherever situated.
If an Event of Default with respect to Debt Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Debt Securities
and Coupons of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
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Section 5.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceedings, or any voluntary or involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, relative to the
Company or any other obligor upon the Debt Securities and Coupons, if any, of a
particular series or the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
of acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal
(or, if the Debt Securities of such series are Discount Securities, such
portion of the principal amount as may be due and payable with respect to
such series pursuant to a declaration in accordance with Section 5.02)
(and premium, if any) and interest owing and unpaid in respect of the Debt
Securities and Coupons 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 (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders of such Debt Securities and Coupons allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Debt
Securities and any Coupons of such series or the rights of any Holder thereof,
or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 5.05. Trustee May Enforce Claims Without Possession of
Debt Securities.
All rights of action and claims under this Indenture or the Debt
Securities and the Coupons, if any, of any series may be prosecuted and enforced
by the Trustee without the possession of any of such Debt Securities or Coupons
or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name, as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Debt Securities or Coupons in respect of which such judgment
has been recovered.
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Section 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (and
premium, if any) or interest, upon presentation of the Debt Securities or
Coupons of any series in respect of which money has been collected and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.07.
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities or
Coupons of such series, in respect of which or for the benefit of which
such money has been collected ratably, without preference or priority of
any kind, according to the amounts due and payable on such Debt Securities
or Coupons for principal (and premium, if any) and interest, respectively;
and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 5.07. Limitation on Suits.
No Holder of any Debt Security or Coupon of any series shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Debt Securities of such
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders or of the Holders of Outstanding Debt Securities or Coupons of any other
series, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders. For the protection and enforcement of the provisions of this Section
5.07, each and every Holder of Debt
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Securities or Coupons of any series and the Trustee for such series shall be
entitled to such relief as can be given at law or in equity.
Section 5.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Debt Security or of any Coupon shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and premium, if any)
and (subject to Section 3.07) interest on such Debt Security or Coupon on the
respective Stated Maturity or Maturities expressed in such Debt Security or
Coupon (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment and interest thereon, and such
right shall not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise expressly provided elsewhere in this Indenture,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or any
acquiescence therein. Every right and remedy given by this Indenture or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 5.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Debt Securities of any series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee with respect to the
Debt Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
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(2) subject to the provisions of Section 6.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or Responsible Officers of the
Trustee, determine that the proceeding so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series not joining
in any such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Debt Securities of any series may on behalf of the
Holders of all the Debt Securities of any such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or in the payment of any
sinking fund installment or analogous obligation with respect to the Debt
Securities of such series, or
(2) in respect of a covenant or provision hereof which pursuant to
Article Eleven cannot be modified or amended without the consent of the
Holder of each Outstanding Debt Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of the Debt Securities of such series under this Indenture, but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Debt
Security or any Coupon 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, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit other than the Trustee of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant, but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than 10% in principal amount of the
Outstanding Debt Securities of any series, or to any suit instituted by any
Holder of a Debt Security or Coupon for the enforcement of the payment of the
principal of (or premium, if any) or interest on such Debt Security or the
payment of any Coupon on or after the respective Stated Maturity or Maturities
expressed in such Debt Security or Coupon (or, in the case of redemption, on or
after the Redemption Date).
Section 5.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the
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performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to the Debt Securities of any series,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provisions
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) In case an Event of Default with respect to Debt Securities of
any series has occurred and is continuing, the Trustee shall, with respect to
the Debt Securities of such series, exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to Debt
Securities of any series in good faith in accordance with the direction of
the Holders of a majority in principal amount of the Outstanding Debt
Securities of such series 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;
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(4) the Trustee is under no obligation or duty to pay interest on
or invest any funds deposited with it except as specifically provided in
this Indenture, and all investment activities undertaken by the Trustee,
if any, shall be at and pursuant to the written instruction of the
Company; and
(5) the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
(e) Any opinion required or permitted to be delivered to the
Trustee hereunder may be addressed and delivered to the entity serving as
Trustee hereunder solely in its individual capacity and not in its capacity as
Trustee, fiduciary or as representative of the holders of such Debt Securities
and Coupons issued by the Company.
Section 6.02. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to Debt Securities or Coupons, if any, of any series, the Trustee shall
give notice to all Holders of Debt Securities and Coupons of such series of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest on any Debt
Security or Coupon of such series or in the payment of any sinking fund
installment with respect to Debt 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 and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders of Debt Securities and of Coupons of
such series; and provided, further, that in the case of any default of the
character specified in Section 5.01(4) with respect to Debt Securities of such
series no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Debt Securities of such series.
Notice given pursuant to this Section 6.02 shall be transmitted by
mail:
(1) to all Registered Holders, as the names and addresses of the
Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have
within two years preceding such transmission, filed their names and
addresses with the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 7.02(a) of this Indenture.
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Section 6.03. Certain Rights of Trustee.
Except as otherwise provided in Section 6.01:
(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, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Debt Securities of any series pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent (including any agent appointed pursuant to
Section 3.10(j)) or attorney appointed with due care by it hereunder.
Section 6.04. Not Responsible for Recitals or Issuance of Debt
Securities.
The recitals contained herein and in the Debt Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debt Securities or Coupons, if any, of any series. The
Trustee shall not be accountable for the use or application by the Company of
any Debt Securities or the proceeds thereof.
Section 6.05. May Hold Debt Securities.
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The Trustee, any Paying Agent, the Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Debt Securities or Coupons, and, subject to Sections 6.08
and 6.13, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Paying Agent, Security Registrar or such other agent.
Section 6.06. Money Held in Trust.
Money in any Currency held by the Trustee or any Paying Agent in
trust hereunder need not be segregated from other funds except to the extent
required by law. Neither the Trustee nor any Paying Agent shall be under any
liability for (i) interest on any money received by it hereunder except as
otherwise agreed with the Company or (ii) losses resulting from currency
fluctuations or any investments made pursuant to 6.01(c)(4).
Section 6.07. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
in Dollars for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
trustee in Dollars upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify in Dollars the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of this trust or performance of its
duties hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the Debt Securities
and Coupons, if any, upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of amounts due on
the Debt Securities and Coupons.
The obligations of the Company under this Section 6.07 to
compensate and indemnify the Trustee for expenses, disbursements and advances
shall constitute additional indebtedness under this Indenture and shall survive
the satisfaction and discharge of this Indenture.
Section 6.08. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest,
as defined in this Section with respect to the Debt Securities of any series,
then, within 90 days after ascertaining that it has such conflicting interest,
and if the default (as hereinafter defined) to which such conflicting interest
relates has not been cured or duly waived or otherwise eliminated before the end
of such 90-day period, the Trustee shall either
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eliminate such conflicting interest or, except as otherwise provided below,
resign with respect to the Debt Securities of such series, and the Company shall
take prompt steps to have a successor appointed, in the manner and with the
effect hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section with respect to the Debt Securities
of any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit to all Holders of Debt Securities of such series notice
of such failure.
Notice given pursuant to this Section 6.08(b) shall be transmitted
by mail:
(1) to all Registered Holders, as the names and addresses of the
Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have,
within two years preceding such transmission, filed their names and
addresses with the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 7.02(a) of this Indenture.
(c) For the purposes of this Section, the Trustee shall be deemed
to have a conflicting interest with respect to the Debt Securities of any
series, if there shall exist an Event of Default (as such term is defined
herein, but exclusive of any period of grace or requirement of notice) with
respect to such Debt Securities and
(1) the Trustee is trustee under this Indenture with respect to the
Outstanding Debt Securities of any series other than that series or is
trustee under another indenture under which any other securities, or
certificates of interest or participation in any other securities, of the
Company are outstanding, unless such other indenture is a collateral trust
indenture under which the only collateral consists of Debt Securities
issued under this Indenture, provided that there shall be excluded from
the operation of this paragraph this Indenture with respect to the Debt
Securities of any series other than that series and any other indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if
(i) this Indenture and such other indenture or indentures
(and all series of securities issuable thereunder) are wholly
unsecured and rank equally and such other indenture or indentures
are hereafter qualified under the Trust Indenture Act, unless the
Commission shall have found and declared by order pursuant to
Section 305(b) or Section 307(c) of the Trust Indenture Act that
differences exist between the provisions of this Indenture with
respect to the Debt Securities of such series and one or more other
series or the provisions of such other indenture or indentures
which are so likely to involve a material conflict of interest as
to make it necessary, in the public interest or for the protection
of investors to disqualify the Trustee from acting as such under
this Indenture with respect to the Debt Securities of such series
and such other series or under such other indenture or indentures,
or
(ii) the Company shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture
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with respect to the Debt Securities of such series and such other series
or such other indenture or indentures is not so likely to involve a
material conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify the Trustee from
acting as such under this Indenture with respect to the Debt Securities of
such series and such other series or under such other indenture or
indentures;
(2) the Trustee or any of its directors or executive officers is an
underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with an
underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the Company
who is currently engaged in the business of underwriting, except that (i) one
individual may be a director or an executive officer, or both, of the Trustee
and a director or an executive officer, or both, of the Company but may not be
at the same time an executive officer of both the Trustee and the Company; (ii)
if and so long as the number of directors of the Trustee in office is more than
nine, one additional individual may be a director or an executive officer, or
both, of the Trustee and a director of the Company; and (iii) the Trustee may be
designated by the Company or by any underwriter for the Company to act in the
capacity of transfer agent, registrar, custodian, paying agent, fiscal agent,
escrow agent, or depositary or in any other similar capacity, or, subject to the
provisions of paragraph (l) of this subsection, to act as trustee, whether under
an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is beneficially
owned either by the Company or by any director, partner or executive officer
thereof, or 20% or more of such voting securities is beneficially owned,
collectively, by any two or more of such persons; or 10% or more of the voting
securities of the Trustee is beneficially owned either by an underwriter for the
Company or by any director, partner or executive officer thereof or is
beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
subsection defined), (i) 5% or more of the voting securities, or 10% or more of
any other class of security, of the Company not including the Debt Securities
issued under this Indenture and securities issued under any other indenture
under which the Trustee is also trustee, or (ii) 10% or more of any class of
security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of or holds as collateral security
for an obligation which is in default, 5% or more of the voting securities of
any person who, to the knowledge of the Trustee, owns 10% or more of the voting
securities of, or controls directly or indirectly or is under direct or indirect
common control with, the Company;
(8) the Trustee is the beneficial owner of or holds as collateral security
for an obligation which is in default, 10% or more of any class of security of
any person who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company;
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(9) the Trustee owns, on the date of such Event of Default or any
anniversary of such Event of Default while such Event of Default remains
outstanding, in the capacity of executor, administrator, testamentary or
inter vivos trustee, guardian, committee or conservator, or in any other
similar capacity, an aggregate of 25% or more of the voting securities, or
of any class of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a conflicting
interest under paragraph (6), (7) or (8) of this subsection. As to any
such securities of which the Trustee acquired ownership through becoming
executor, administrator or testamentary trustee of an estate which
included them, the provisions of the preceding sentence shall not apply,
for a period of not more than two years from the date of such acquisition,
to the extent that such securities included in such estate do not exceed
25% of such voting securities or 25% of any such class of security.
Promptly after the dates of any such Event of Default and annually in each
succeeding year that such Event of Default continues, the Trustee shall
make a check of its holdings of such securities in any of the
above-mentioned capacities as of such dates. If the Company fails to make
payment in full of the principal of (or premium, if any) or interest on
any of the Debt Securities when and as the same becomes due and payable,
and such failure continues for 30 days thereafter, the Trustee shall make
a prompt check of its holdings of such securities in any of the
above-mentioned capacities as of the date of the expiration of such 30-day
period, and after such date, notwithstanding the foregoing provisions of
this paragraph, all such securities so held by the Trustee, with sole or
joint control over such securities vested in it, shall be considered as
though beneficially owned by the Trustee for the purposes of paragraphs
(6), (7) and (8) of this subsection; or
(10) except under the circumstances described in paragraphs (1),
(3), (4), (5) or (6) of Section 6.13(b) of this Indenture, the Trustee
shall be or shall become a creditor of the Company.
For the purposes of paragraph (1) of this subsection, the term
"series of securities" or "series" means a series, class or group of securities
issuable under an indenture pursuant to whose terms holders of one such series
may vote to direct the Trustee, or otherwise take action pursuant to a vote of
such holders, separately from holders of another series; provided, that "series
of securities" or "series" shall not include any series of securities issuable
under an indenture if all such series rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this subsection shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (3) or (7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (iii) the Trustee shall not
be deemed to be the owner or holder of (A) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not in
default as defined in clause (ii) above, or (B) any security which it holds as
collateral security under this Indenture, irrespective of any default hereunder,
or (C) any security which it holds as agent for collection, or as custodian,
escrow agent or depositary, or in any similar representative capacity.
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(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to the Company
means every person who, within one year prior to the time as of which the
determination is made, has purchased from the Company with a view to, or
has offered or sold for the Company in connection with, the distribution
of any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in any such
undertaking, or has participated or has had a participation in the direct
or indirect underwriting of any such undertaking, but such term shall not
include a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" means any director of a corporation, or any
individual performing similar functions with respect to any organization
whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint stock company, a trust, an estate, an
unincorporated organization, or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangements whereby a trustee or
trustees or agent or agents for the owner or holder of such security are
presently entitled to vote in the direction or management of the affairs
of a person.
(5) The term "Company" means any obligor upon the Debt Securities
of any series.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary, and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization, whether incorporated
or unincorporated, but shall not include the chairman of the board of
directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section (each of whom
is referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of securities of a person
means such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount", when used with regard to securities means
the principal amount if relating to evidences of indebtedness, the number
of shares if relating to capital shares, and the number of units if
relating to any other kind of security.
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(4) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating
to another class of securities of the issuer, if the obligation
evidenced by such other class of securities is not in default as to
principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as security for
an obligation of the issuer not in default as to principal or
interest or otherwise; and
(iv) securities held in escrow if placed in escrow by the
issuer thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise
the voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes; and provided, further, that, in
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
(f) Except in the case of a default in the payment of the principal
of or interest on any Debt Security of any series, or in the payment of any
sinking or purchase fund installment, the Trustee shall not be required to
resign as provided by this Section if the Trustee shall have sustained the
burden of proving, on application to the Commission and after opportunity for
hearing thereon, that:
(1) the Event of Default may be cured or waived during a reasonable
period and under the procedures described in such application; and
(2) a stay of the Trustee's duty to resign will not be inconsistent
with the interests of Holders of the Debt Securities.
The filing of such an application shall automatically stay the performance of
the duty to resign until the Commission orders otherwise.
Section 6.09. Corporate Trustee Required; Eligibility.
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 of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $75,000,000, subject to supervision or examination by Federal, State
or District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
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the aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. Neither the Company nor any person directly or
indirectly controlling, controlled by, or under common control with the Company
shall serve as Trustee upon any Debt Securities.
Section 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series and a successor Trustee appointed by Act of the Holders
of a majority in principal amount of the Outstanding Debt Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08(a) with
respect to the Debt Securities of any series after written request
therefor by the Company or by any Holder who has been a bona fide Holder
of a Debt Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 with
respect to the Debt Securities of any series and shall fail to resign
after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Debt Securities, or (ii) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Debt Security of any 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 for the Debt Securities of such series.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Debt Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Debt Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Debt Securities of
one or more or all of such series and that at any time there shall be only
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one Trustee with respect to the Debt Securities of any particular series) and
shall comply with the applicable requirements of Section 6.11. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Debt Securities of any series
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to the
Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or the
Holders of such series and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, subject to Section 5.14, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series in the manner and to the extent provided in Section 1.05 to the
Holders of Debt Securities of such series. Each notice shall include the name of
the successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a successor Trustee
with respect to all Debt Securities, each such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee, but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 6.07.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Debt Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Debt Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in any such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any other trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of any such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become
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vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates, but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Debt Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Debt Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Debt Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Debt Securities. In case any Debt Securities shall not have been authenticated
by such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
Section 6.13. Preferential Collection of Claims Against Company.
(a) Subject to subsection (b) of this Section, if the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of
the Company within three months prior to a default, as defined in subsection (c)
of this Section, or subsequent to such default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the Debt
Securities and of the Coupons, if any, and the holders of other indenture
securities (as defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three-month period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a voluntary or
involuntary case had been commenced in respect of the Company under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law
upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such
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three-month period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of the
Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of
any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim by
the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings or reorganization
pursuant to the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or State bankruptcy, insolvency or other
similar law;
(B) to realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to the
beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such
three-month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
subsection (c) of this Section, would occur within three months, or
(D) to receive payment on any claim referred to in paragraph (B) or
(C) against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for property held as
security at the time of such substitution shall, to the extent of the fair value
of the property released, have the same status as the property released, and, to
the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted or any other applicable Federal
or State bankruptcy, insolvency or other similar law, the same percentage of
their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the respective claims
of the Trustee and the Holders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law, but after crediting thereon
receipts on account of the indebtedness represented by their respective claims
from all sources other than from such dividends and from the funds and property
so held in such special account. As used in this paragraph, with respect to any
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claim, the term "dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or proceedings for reorganization pursuant
to the Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law, whether
such distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceedings for
reorganization is pending shall have jurisdiction (i) to apportion among the
Trustee and the Holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in
such special account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made to
the Trustee and the Holders and the holders of other indenture securities with
respect to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claim, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the beginning
of such three-month period shall be subject to the provisions of this subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three-month period, it
shall be subject to the provisions of this subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such three-month period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the Lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented, or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of this
Section;
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(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve
Act, as amended, which is directly or indirectly a creditor of the
Company; and
(6) The acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within
the classification of self-liquidating paper as defined in subsection (c)
of this Section.
(c) for the purposes of this Section only:
(1) The term "default" means any failure to make payment in full of
the principal of or interest on any of the Debt Securities or upon the
other indenture securities when and as such principal or interest becomes
due and payable.
(2) The term "other indenture securities" means securities upon
which the Company is an obligor outstanding under any other indenture (i)
under which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of the funds and
property held in such special account.
(3) The term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks and payable upon demand.
(4) The term "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, xxxx of exchange, acceptance or
obligation.
(5) The term "Company" means any obligor upon the Debt Securities.
Section 6.14. Appointment of Authenticating Agent.
As long as any Debt Securities of a series remain Outstanding, upon
a Company Request, there shall be an authenticating agent (the "Authenticating
Agent") appointed, for such period as the Company shall elect, by the Trustee
for such series of Debt Securities to act as its agent on its behalf and subject
to its direction in connection with the authentication and delivery of each
series of Debt Securities for which it is serving as Trustee. Debt Securities of
each such series authenticated by such Authenticating Agent shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by such Trustee. Wherever reference is made in this
Indenture to the authentication and delivery of Debt Securities of any series by
the Trustee for such series or to the Trustee's Certificate of Authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee for such series by an Authenticating Agent for such series and a
Certificate of Authentication executed on behalf of such Trustee by such
Authenticating Agent, except that only the Trustee may authenticate Debt
Securities upon original issuance and pursuant to Section 3.06 hereof. Such
Authenticating Agent shall at all times be a corporation
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organized and doing business under the laws of the United States of America or
of any State, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $10,000,000 and subject to
supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged
or converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Debt Securities for which it served as Authenticating
Agent without the execution or filing of any paper or any further act on the
part of the Trustee for such series or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the applicable Trustee
and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14 with respect to
one or more or all series of Debt Securities, the Trustee for such series shall
upon Company Request appoint a successor Authenticating Agent, and the Company
shall provide notice of such appointment to all Holders of Debt Securities of
such series in the manner and to the extent provided in Section 1.05. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein. The Trustee for the Debt Securities of such series agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation for its services, and the Trustee shall be entitled to be
reimbursed for such payment, subject to the provisions of Section 6.07. The
Authenticating Agent for the Debt Securities of any series shall have no
responsibility or liability for any action taken by it as such at the direction
of the Trustee for such series.
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If an appointment with respect to one or more series is made
pursuant to this Section, the Debt Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the series of Debt Securities issued under the
within mentioned Indenture.
-----------------------------------
-----------------------------------
As Trustee
By:
--------------------------------
As Authenticating Agent
By:
--------------------------------
Authorized Signatory
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses
of Holders.
The Company will furnish or cause to be furnished to the Trustee
with respect to Registered Securities of each series for which it acts as
Trustee:
(a) semi-annually on a date not more than 15 days after each
Regular Record Date with respect to an Interest Payment Date, if any, for the
Registered Securities of such series (or on semi-annual dates in each year to be
determined pursuant to Section 3.01 if the Registered Securities of such series
do not bear interest), a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Registered Holders as of the date 15
days next preceding each such Regular Record Date (or such semi-annual dates, as
the case may be); and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for such series, no such list need be furnished.
The Company shall also be required to furnish to the Trustee at all
such times set forth above all information in the possession or control of the
Company or any of its Paying Agents other than the Trustee as to the names and
addresses of the Holders of Bearer Securities of all series; provided, however,
that the Company shall have no obligation to investigate any matter relating to
any Holders of Bearer Securities of any series.
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Section 7.02. Preservation of Information; Communication to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of Holders
contained in the most recent list furnished to the Trustee as provided in
Section 7.01 received by it in the capacity of Paying Agent (if so acting)
hereunder, and filed with it within the two preceding years pursuant to Section
7.03(c)(2).
The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished, destroy any information
received by it as Paying Agent (if so acting) hereunder upon delivering to
itself as Trustee, not earlier than 45 days after an Interest Payment Date, a
list containing the names and addresses of the Holders obtained from such
information since the delivery of the next previous list, if any, destroy any
list delivered to itself as Trustee which was compiled from information received
by it as Paying Agent (if so acting) hereunder upon the receipt of a new list so
delivered, and destroy not earlier than two years after filing, any information
filed with it pursuant to Section 7.03(c)(2).
(b) If three or more Holders (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 Debt Security 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 Debt Securities of a particular series (in which case the applicants must
hold Debt Securities of such series) or with all Holders of Debt Securities with
respect to their rights under this Indenture or under the Debt Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 7.02(a), or
(ii) inform such applicants as to the approximate number of Holders
of Debt Securities of such series or of all Debt Securities, as the
case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section
7.02(a), and as to the approximate cost of mailing to such Holders the
form of proxy or other communication, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon written request of such applicants,
mail to the Holders of Debt Securities of such series or all Holders, as the
case may be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 7.02(a), a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
of Debt Securities of such series or all Holders, as the case may be, or would
be in violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of
such order and the
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renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Debt Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Section 7.02(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
of any material pursuant to a request made under Section 7.02(b).
Section 7.03. Reports by Trustee.
(a) Within 60 days after January 15 of each year, commencing
January 15, 2000, the Trustee shall, to the extent required by the Trust
Indenture Act, transmit to all Holders of Debt Securities of any series with
respect to which it acts as Trustee, in the manner hereinafter provided in this
Section 7.03, a brief report dated such date with respect to any of the
following events which may have occurred within the previous 12 months (but if
no such event has occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 6.09 and its
qualifications under Section 6.08;
(2) the creation of or any material change to a relationship
specified in paragraph (1) through (10) of Section 6.08(c) of this
Indenture;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Debt Securities of such series, on any
property or funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to report such advances if
such advances so remaining unpaid aggregate not more than 1/2 of 1% of the
principal amount of the Outstanding Debt Securities of such series on the
date of such report;
(4) any change to the amount, interest rate and maturity date of
all other indebtedness owing by the Company (or any other obligor on the
Debt Securities of such series) to the Trustee in its individual capacity,
on the date of such report, with a brief description of any property held
as collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in Section
6.13(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any additional issue of Debt Securities which the Trustee has
not previously reported; and
(7) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Debt Securities of such series, except
action in respect of a default, notice of which has been or is to be
withheld by the Trustee in accordance with Section 6.02.
(b) The Trustee shall transmit by mail to all Holders of Debt
Securities of any series (whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section
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7.02 (a)) for which it acts as the Trustee, as hereinafter provided, a brief
report with respect to the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) since the date of the last report transmitted
pursuant to subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Debt Securities of such series, on property or funds held or collected by it
as Trustee, and which it has not previously reported pursuant to this
subsection, except that the Trustee for each series shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the Debt Securities of such
series Outstanding at such time, such report to be transmitted within 90 days
after such time.
(c) Reports pursuant to this Section 7.03 shall be transmitted by
mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders of Registered Securities appear in the Security
Register;
(2) to such Holders of Bearer Securities of any series as have,
within two years preceding such transmission, filed their names and
addresses with the Trustee for such series for that purpose; and
(3) except in the cases of reports pursuant to subsection (b) of
this Section 7.03, to each Holder of a Debt Security of any series whose
name and address appear in the information preserved at the time by the
Trustee in accordance with Section 7.02(a).
(d) A copy of each such report shall, at the time of such
transmission to Holders, be filed with the Company and the Company shall file
such report with each stock exchange upon which any Debt Securities of such
series are listed, with the Commission and also with the Company. The Company
will notify the Trustee when any series of Debt Securities are listed on any
stock exchange.
Section 7.04. Reports by Company.
Unless otherwise specified with respect to a particular series of
Debt Securities pursuant to Section 3.01, the Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended. Notwithstanding that the
Company may not be required to remain subject to the reporting
requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, or otherwise report on an annual and quarterly basis on
forms provided for such annual and quarterly reporting pursuant to rules
and regulations promulgated by the Commission, the Company shall continue
to file with the Commission and provide the Trustee and the Holders of
each series of Debt Securities with, without cost to each Holder, (a)
within 90 days after the end of each fiscal year, annual reports on Form
10-K (or any successor or comparable form) containing the information
required to be contained therein (or required in such successor or
comparable form); (b) within 45 days after the end of each of the first
three fiscal quarters of each fiscal year, reports on Form 10-Q (or any
successor or comparable form); and (c)
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promptly from time to time after the occurrence of an event required to be
therein reported, such other reports on Form 8-K (or any successor or
comparable form) containing the information required to be contained
therein (or required in any successor or comparable form); provided,
however, that the Company shall not be obligated to file such reports with
the Commission if the Commission does not permit such filings. The Company
will in all cases, without cost to each recipient, provide copies of such
information to the Holders of the Debt Securities of each series and, if
they are not permitted to file such reports with the Commission, shall
make available information to prospective purchasers and to securities
analysts and broker-dealers upon their request;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(3) transmit to all Holders of Debt Securities, in the manner and
to the extent provided in Section 7.03, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
ARTICLE VIII
CONCERNING THE HOLDERS
Section 8.01. Acts of Holders.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent or
proxy duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee, and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Outstanding Debt Securities of any series may take any Act, the
fact that the Holders of such specified percentage have joined therein may be
evidenced (a) by the instrument or instruments executed by Holders in person or
by agent or proxy appointed in writing, or (b) by the record of Holders voting
in favor thereof at any meeting of such Holders duly called and held in
accordance with the provisions of Article Nine, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of Holders.
Section 8.02. Proof of Ownership; Proof of Execution of
Instruments by Holder.
The ownership of Registered Securities of any series shall be
proved by the Security Register for such series or by a certificate of the
Security Registrar for such series.
The ownership of Bearer Securities shall be proved by production of
such Bearer Securities or by a certificate executed by any bank or trust
company, which certificate shall be dated and shall state that
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on the date thereof a Bearer Security bearing a specified identifying number or
other xxxx was deposited with or exhibited to the person executing such
certificate by the person named in such certificate, or by any other proof of
possession reasonably satisfactory to the Trustee. The holding by the person
named in any such certificate of any Bearer Security specified therein shall be
presumed to continue for a period of one year unless at the time of
determination of such holding (1) another certificate bearing a later date
issued in respect of the same Bearer Security shall be produced, (2) such Bearer
Security shall be produced by some other person, (3) such Bearer Security shall
have been registered on the Security Register, if, pursuant to Section 3.01,
such Bearer Security can be so registered, or (4) such Bearer Security shall
have been canceled or paid.
Subject to the provisions of Sections 6.01, 6.03 and 9.05, proof of
the execution of a writing appointing an agent or proxy and of the execution of
any instrument by a Holder or his agent or proxy shall be sufficient and
conclusive in favor of the Trustee and the Company if made in the following
manner:
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 authorized to take acknowledgements of deeds, that the person executing
such instrument 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 an officer of a corporation or association
or a member of a partnership on behalf of such corporation, association or
partnership, as the case may be, or by any other person acting in a
representative capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The record of any Holders' meeting shall be proved in the manner
provided in Section 9.06.
The Trustee may in any instance require further proof with respect
to any of the matters referred to in this Section so long as the request is a
reasonable one.
Section 8.03. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Registered Security is registered
as the owner of such Registered Security for the purpose of receiving payment of
the principal of (and premium, if any) and (subject to Section 3.07) interest,
if any, on such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary. The Company, the Trustee, and any agent of the Company or the
Trustee may treat the Holder of any Bearer Security or of any Coupon as the
absolute owner of such Bearer Security or Coupon for the purposes of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or Coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. All payments made to any Holder, or upon his
order, shall be valid, and, to the extent of the sum or sums paid, effectual to
satisfy and discharge the liability for moneys payable upon such Debt Security
or Coupon.
Section 8.04. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 8.01, of the taking of any Act by the Holders of the
percentage in aggregate principal amount of the Outstanding Debt Securities
specified in this Indenture in connection with such Act, any Holder of a Debt
Security the number, letter or other distinguishing symbol of which is shown by
the evidence to be included in the Debt Securities the Holders of which have
consented to such Act may, by filing written notice with the Trustee at
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the Corporate Trust Office and upon proof of ownership as provided in Section
8.02, revoke such Act so far as it concerns such Debt Security. Except as
aforesaid, any such Act taken by the Holder of any Debt Security shall be
conclusive and binding upon such Holder and, subject to the provisions of
Section 5.08, upon all future Holders of such Debt Security and all past,
present and future Holders of Coupons, if any, appertaining thereto and of any
Debt Securities and Coupons issued on transfer or in lieu thereof or in exchange
or substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon such Debt Security or Coupons or such other Debt Securities
or Coupons.
ARTICLE IX
HOLDERS' MEETINGS
Section 9.01. Purposes of Meetings.
A meeting of Holders of any or all series may be called at any time
and from time to time pursuant to the provisions of this Article Nine for any of
the following purposes:
(1) to give any notice to the Company or to the Trustee for such
series, or to give any directions to the Trustee for such series, or to
consent to the waiving of any default hereunder and its consequences, or
to take any other action authorized to be taken by Holders pursuant to any
of the provisions of Article Five;
(2) to remove the Trustee for such series and appoint a successor
Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(4) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the
Outstanding Debt Securities of any one or more or all series, as the case
may be, under any other provision of this Indenture or under applicable
law.
Section 9.02. Call of Meetings by Trustee.
The Trustee for any series may at any time call a meeting of
Holders of such series to take any action specified in Section 9.01, to be held
at such time or times and at such place or places as the Trustee for such series
shall determine. Notice of every meeting of the Holders of any series, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given to Holders of such series
in the manner and to the extent provided in Section 1.05. Such notice shall be
given not less than 10 days nor more than 90 days prior to the date fixed for
the meeting.
Section 9.03. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in aggregate principal amount of the Outstanding
Debt Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the
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Trustee shall not have given the notice of such meeting within 10 days after the
receipt of such request, then the Company or such Holders may determine the time
or times and the place or places for such meetings and may call such meetings to
take any action authorized in Section 9.01, by giving notice thereof as provided
in Section 9.02.
Section 9.04. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person shall be
(a) a Holder of a Debt Security of the series with respect to which such meeting
is being held or (b) a Person appointed by an instrument in writing as agent or
proxy by such Holder. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee for the series
with respect to which such meeting is being held and its counsel and any
representatives of the Company and its counsel.
Section 9.05. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee
for any series may make such reasonable regulations as it may deem advisable for
any meeting of Holders of such series, in regard to proof of the holding of Debt
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in Section 9.03, in which case
the Company or the Holders 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 a majority vote of the meeting.
Subject to the provisos in the definition of "Outstanding," at any
meeting each Holder of a Debt Security of the series with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 principal amount (or such other amount as shall be specified as
contemplated by Section 3.01) of Debt Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Debt Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Outstanding Debt
Securities of such series held by him or instruments in writing duly designating
him as the person to vote on behalf of Holders of Debt Securities of such
series. Any meeting of Holders with respect to which a meeting was duly called
pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to
time by a majority of such Holders present and the meeting may be held as so
adjourned without further notice.
Section 9.06. Voting.
The vote upon any resolution submitted to any meeting of Holders
with respect to which such meeting is being held shall be by written ballots on
which shall be subscribed the signatures of such Holders or of their
representatives by proxy and the serial number or numbers of the Debt Securities
held or represented
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by them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceedings of each meeting of Holders shall be taken and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was transmitted as provided in Section 9.02. The
record shall show the serial numbers of the Debt Securities voting in favor of
or against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
Section 9.07. No Delay of Rights by Meeting.
Nothing contained in this Article Nine shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to any Holder under any of the provisions of this Indenture or of the
Debt Securities of any series.
ARTICLE X
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 10.01. Company May Consolidate, etc., Only on Certain
Terms.
The Company shall not consolidate with or merge with or into or
wind up into (whether or not the Company is the surviving corporation) or sell,
assign, convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety (the "successor corporation") shall be a corporation organized
and existing under the laws of the United States or any State or territory
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest on all the Debt Securities
and coupons, if any, and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, shall have happened and be continuing;
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(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with;
and
(4) such other conditions as may be specified under Section 3.01
with respect to any series of Debt Securities.
Section 10.02. Successor Corporation Substituted.
Upon any consolidation with or merger into any other corporation,
or any conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 10.01, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein.
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ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to
the rights of the Company and the assumption by such successor of the
covenants of the Company contained herein and in the Debt Securities
and Coupons, if any; or
(2) to add to the covenants of the Company, for the
benefit of the Holders of all or any series of Debt Securities and the
Coupons, if any, appertaining thereto (and if such covenants are to be
for the benefit of less than all series, stating that such covenants
are expressly being included solely for the benefit of such series), or
to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such
Events of Default are to be applicable to less than all series, stating
that such Events of Default are expressly being included solely to be
applicable to such series); or
(4) to add or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Debt Securities of any series in bearer form,
registrable or not registrable, and with or without Coupons, to permit
Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit the issuance
of Debt Securities of any series in uncertificated form, provided that
any such action shall not adversely affect the interests of the Holders
of Debt Securities of any series or any related Coupons in any material
respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Outstanding Debt Security or Coupon of
any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision and as to
which such supplemental indenture would apply; or
(6) to secure the Debt Securities or to provide that any
of the Company's obligations under any series of the Debt Securities
shall be guaranteed and the terms and conditions for the release or
substitution of such security or guarantee; or
(7) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Article Four or Fifteen, provided that any such action shall not
adversely affect the interests of the Holders of Debt Securities of
such series or any other series of Debt Securities or any related
Coupons in any material respect; or
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(8) to establish the form or terms of Debt Securities and
Coupons, if any, of any series as permitted by Sections 2.01 and 3.01;
or
(9) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to one or
more series of Debt Securities and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 6.11; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, to eliminate any conflict between the terms hereof
and the Trust Indenture Act or to make any other provisions with
respect to matters or questions arising under this Indenture which
shall not be inconsistent with any provision of this Indenture;
provided such other provisions shall not adversely affect the interests
of the Holders of Outstanding Debt Securities or Coupons, if any, of
any series created prior to the execution of such supplemental
indenture in any material respect.
Section 11.02. Supplemental Indentures With Consent of
Holders.
With the written consent of the Holders of not less than a
majority in principal amount of the Outstanding Debt Securities of each series
affected by such supplemental indenture voting separately, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture of such
Debt Securities and Coupons, if any; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security of each such series affected thereby,
(1) conflict with the required provisions of the Trust
Indenture Act;
(2) except as specifically provided with respect to any
series of Debt Securities pursuant to Section 3.01, (a) change the
Stated Maturity of the principal of, or installment of interest, if
any, on, any Debt Security, or reduce the principal amount thereof or
the interest thereon or any premium payable upon redemption thereof
(provided that a requirement to offer to repurchase Debt Securities
shall not be deemed a redemption for this purpose), or change the
Stated Maturity of or reduce the amount of any payment to be made with
respect to any Coupon, or change the Currency or Currencies in which
the principal of (and premium, if any) or interest on such Debt
Security is denominated or payable, or reduce the amount of the
principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.02, or reduce the amount of, or postpone the date fixed for, any
payment under any sinking fund or analogous provisions for any Debt
Security, or impair the right to institute suit for the enforcement of
any payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or limit the obligation
of the Company to maintain a paying agency outside the United States
for payment on Bearer Securities as provided in Section 12.03, or
adversely affect the right to convert any Debt Security into shares of
Common Stock of the Company as may be provided pursuant to Section
3.01; or
(3) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, the consent of whose Holders
is required for any supplemental indenture, or the consent of
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whose Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture; or
(4) modify any of the provisions of this Section, Section
5.13 or Section 12.09, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Debt Security of each series affected thereby; provided,
however, that this clause shall not be deemed to require the consent of
any Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 12.09, or the
deletion of this proviso, in accordance with the requirements of
Sections 6.11 and 11.01(7).
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture with respect to one or more
particular series of Debt Securities and Coupons, if any, or which modifies the
rights of the Holders of Debt Securities and Coupons of such series with respect
to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Debt securities and Coupons, if any, of
any other series.
Section 11.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 6.01) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture and that the supplemental
indenture conforms to the requirements of the Trust Indenture Act as then in
effect. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which adversely affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise in a material way.
Section 11.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Debt Securities and Coupons theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 11.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 11.06. Reference in Debt Securities to Supplemental
Indentures.
Debt Securities and Coupons, if any, of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If
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the Company shall so determine, new Debt Securities and Coupons of any series so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debt Securities and Coupons of such series.
Section 11.07. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the
appropriate Trustee of any supplemental indenture pursuant to Section 11.02, the
Company shall transmit, in the manner and to the extent provided in Section
1.05, to all Holders of any series of the Debt Securities affected thereby, a
notice setting forth in general terms the substance of such supplemental
indenture.
ARTICLE XII
COVENANTS
Section 12.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Debt Securities and Coupons, if any, that it will duly and punctually
pay the principal of (and premium, if any) and interest on the Debt Securities
in accordance with the terms of the Debt Securities, the Coupons and this
Indenture. Unless otherwise specified as contemplated by Section 3.01 with
respect to any series of Debt Securities or except as otherwise provided in
Section 3.06, any interest due on Bearer Securities on or before Maturity shall
be payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. If so
provided in the terms of any series of Debt Securities established as provided
in Section 3.01, the interest, if any, due in respect of any temporary Global
Note or permanent Global Note, together with any additional amounts payable in
respect thereof, as provided in the terms and conditions of such Debt Security,
shall be payable only upon presentation of such Debt Security to the Trustee for
notation thereon of the payment of such interest.
Section 12.02. Officer's Certificate as to Default.
Unless otherwise specifically provided for with respect to any
series of Debt Securities under Section 3.01, the Company will deliver to the
Trustee, on or before a date not more than four months after the end of each
fiscal year of the Company (which on the date hereof is the calendar year)
ending after the date hereof, a certificate of the principal executive officer,
principal financial officer or principal accounting officer of the Company
stating whether or not to the best knowledge of the signer thereof the Company
is in compliance with all covenants and conditions under this Indenture, and, if
the Company shall be in default, specifying all such defaults and the nature
thereof of which such signer may have knowledge. For purposes of this Section,
such compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
Section 12.03. Maintenance of Office or Agency.
If Debt Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Debt Securities of that series may be presented or
surrendered for payment, where Debt Securities of that series may be surrendered
for
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registration of transfer or exchange, where Debt Securities of that series that
are convertible may be surrendered for conversion, if applicable, and where
notices and demands to or upon the Company in respect of the Debt Securities of
that series and this Indenture may be served. If Debt Securities of a series are
issuable as Bearer Securities, the Company will maintain (A) in the Borough of
Manhattan, The City and State of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Debt Securities of that series may be
surrendered for exchange or redemption, where notices and demands to or upon the
Company in respect of the Debt Securities of that series and this Indenture may
be served and where Bearer Securities of that series and related Coupons may be
presented or surrendered for payment in the circumstances described in the
following paragraph (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Debt Securities of that
series and related Coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Debt Securities of that
series, if so provided pursuant to Section 3.01); provided, however, that if the
Debt Securities of that series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Debt Securities of
that series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Debt Securities of that series
are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Debt Securities of that
series may be surrendered for exchange or redemption and where notices and
demands to or upon the Company in respect of the Debt Securities of that series
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency.
No payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; provided,
however, that, if the Debt Securities of a series are denominated and payable in
Dollars, payment of principal of and any premium and interest on any Bearer
Security (including any additional amounts payable on Securities of such series,
if so provided pursuant to Section 3.01) shall be made at the office of the
Company's Paying Agent in the Borough of Manhattan, The City and State of New
York, if (but only if) payment in Dollars of the full amount of such principal,
premium, interest or additional amounts, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
Section 12.04. Money for Debt Securities; Payments To Be Held
in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Debt Securities and Coupons, if any, it will, on
or before each due date of the principal of (and premium, if any) or interest on
any of the Debt Securities of such series, segregate and hold in trust for the
benefit of the
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Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with
respect to any series of Debt Securities and Coupons, it will, by 10:00 a.m.
(New York City time) or on each due date of the principal (and premium, if any)
or interest on any Debt Securities of such series, deposit with any such Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless any such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
Notwithstanding any term herein to the contrary, in no
instance shall the Trustee be under any duty or obligation (i) to maintain any
office or to act in any capacity as an agent for any purpose under this
Indenture (or any supplement hereto) outside the United States, or (ii) to act
as a Paying Agent in respect of any currency other than Dollars.
The Company will cause each Paying Agent with respect to any
series of Debt Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Debt Securities of
such series in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Debt Securities of such series) in the
making of any payment of principal (and premium, if any) or interest on
the Debt Securities of such series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Debt Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company upon Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Debt Security or Coupon shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be transmitted in the
manner and to the extent provided by Section 1.05, notice that such money
remains unclaimed and that, after a date specified therein,
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which shall not be less than 30 days from the date of such notification, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 12.05. Corporate Existence.
Subject to Article Ten, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such right or
franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
Section 12.06. Purchase of Debt Securities by Company.
If the Debt Securities of a series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, the Company will not purchase any Debt Securities of
that series by private treaty at a price (exclusive of expenses and accrued
interest) which exceeds 120% of the mean of the nominal quotations of the Debt
Securities of that series as shown in The Stock Exchange Daily Official List for
the last trading day preceding the date of purchase.
Section 12.07. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 12.05, 12.07 and 12.08
(and, if so specified pursuant to Section 3.01, any other covenant not set forth
herein and specified pursuant to Section 3.01 to be applicable to the Securities
of any series, except as otherwise provided pursuant to Section 3.01) with
respect to the Debt Securities of any series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Debt Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent expressly so waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE XIII
REDEMPTION OF DEBT SECURITIES
Section 13.01. Applicability of Article.
Debt Securities of any series which are redeemable before their
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified pursuant to Section 3.01 for Debt Securities of any series)
in accordance with this Article.
Section 13.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem (or, in the case of Discount
Securities, to permit the Holders to elect to surrender for redemption) any Debt
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all of the Debt Securities of any
series
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pursuant to Section 13.03, the Company shall, at least 30 days before the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Debt Securities of such series to be redeemed. In the
case of any redemption of Debt Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Debt Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restrictions.
Section 13.03. Selection by Trustee of Debt Securities to Be
Redeemed.
Except in the case of a redemption in whole of the Bearer
Securities or the Registered Securities of such series, if less than all the
Debt Securities of any series are to be redeemed at the election of the Company,
the particular Debt Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding Debt
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral multiple
thereof) of the principal amount of Debt Securities of such series in a
denomination larger than the minimum authorized denomination for Debt Securities
of such series pursuant to Section 3.02 in the Currency in which the Debt
Securities of such series are denominated. The portions of the principal amount
of Debt Securities so selected for partial redemption shall be equal to the
minimum authorized denominations for Debt Securities of such series pursuant to
Section 3.02 in the Currency in which the Debt Securities of such series are
denominated or any integral multiple thereof, except as otherwise set forth in
the applicable form of Debt Securities. In any case when more than one
Registered Security of such series is registered in the same name, the Trustee
in its discretion may treat the aggregate principal amount so registered as if
it were represented by one Registered Security of such series.
The Trustee shall promptly notify the Company in writing of
the Debt Securities selected for redemption and, in the case of any Debt
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Debt Securities
shall relate, in the case of any Debt Security redeemed or to be redeemed only
in part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
Section 13.04. Notice of Redemption.
Notice of redemption shall be given by the Company, or at the
Company's request, by the Trustee in the name and at the expense of the Company,
not less than 30 days and not more than 60 days prior to the Redemption Date to
the Holders of Debt Securities of any series to be redeemed in whole or in part
pursuant to this Article Thirteen, in the manner provided in Section 1.05. Any
notice so given shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. Failure to give such notice, or any
defect in such notice to the Holder of any Debt Security of a series designated
for redemption, in whole or in part, shall not affect the sufficiency of any
notice of redemption with respect to the Holder of any other Debt Security of
such series.
All notices of redemption shall state:
(1) the Redemption Date,
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(2) the Redemption Price,
(3) that Debt Securities of such series are being
redeemed by the Company pursuant to provisions contained in this
Indenture or the terms of the Debt Securities of such series or a
supplemental indenture establishing such series, if such be the case,
together with a brief statement of the facts permitting such
redemption,
(4) if less than all Outstanding Debt Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Debt
Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security to be redeemed, and
that interest thereon, if any, shall cease to accrue on and after said
date,
(6) that, unless otherwise specified in such notice,
Coupon Securities of any series, if any, surrendered for redemption
must be accompanied by all Coupons maturing subsequent to the date
fixed for redemption, failing which the amount of any such missing
Coupon or Coupons will be deducted from the Redemption Price,
(7) the Place or Places of Payment where such Debt
Securities are to be surrendered for payment of the Redemption Price,
(8) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be redeemed,
and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on this Redemption Date pursuant
to Section 3.05(b) or otherwise, the last date on which such exchanges
may be made, and
(9) that the redemption is for a sinking fund, if such is
the case.
Section 13.05. Deposit of Redemption Price.
On or prior to 10:00 a.m. (New York City time) on the
Redemption Date for any Debt Securities, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 12.04) an amount of
money in the Currency or Currencies in which such Debt Securities are
denominated (except as provided pursuant to Section 3.01) sufficient to pay the
Redemption Price of such Debt Securities or any portions thereof which are to be
redeemed on that date.
Section 13.06. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, any Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price in the Currency in which the Debt Securities of
such series are payable (except as otherwise specified pursuant to Section 3.01
or 3.10), and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Debt Securities shall cease to bear
interest. Upon surrender of any such Debt Security for redemption in accordance
with said notice, such Debt Security shall be paid by the Company at the
Redemption Price; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date
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shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 12.03) and, unless otherwise specified
as contemplated by Section 3.01, only upon presentation and surrender of Coupons
for such interest; and provided, further, that, unless otherwise specified as
contemplated by Section 3.01, installments of interest on Registered Securities
which have a Stated Maturity on or prior to the Redemption Date for such Debt
Securities shall be payable according to the terms of such Debt Securities and
the provisions of Section 3.07.
If any Debt Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
If any Coupon Security surrendered for redemption shall not be
accompanied by all Coupons appertaining thereto maturing on or after the
Redemption Date, the Redemption Price for such Coupon Security may be reduced by
an amount equal to the face amount of all such missing Coupons. If thereafter
the Holder of such Coupon shall surrender to any Paying Agent outside the United
States any such missing Coupon in respect of which a deduction shall have been
made from the Redemption Price, such Holder shall be entitled to receive the
amount so deducted. The surrender of such missing Coupon or Coupons may be
waived by the Company and the Trustee, if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless.
Section 13.07. Debt Securities Redeemed in Part.
Any Debt Security which is to be redeemed only in part shall
be surrendered at the Corporate Trust Office or such other office or agency of
the Company as is specified pursuant to Section 3.01 (in the case of Registered
Securities) and at an office of the Trustee, or at such other office or agency
of the Company outside the United States as is specified pursuant to Section
3.01 (in the case of Bearer Securities) with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing, and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Debt Security without service
charge, a new Debt Security or Debt Securities of the same series, of like tenor
and form, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Debt Security so surrendered, and, in the case of a
Coupon Security, with appropriate Coupons attached. In the case of a Debt
Security providing appropriate space for such notation, at the option of the
Holder thereof, the Trustee, in lieu of delivering a new Debt Security or Debt
Securities as aforesaid, may make a notation on such Debt Security of the
payment of the redeemed portion thereof.
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ARTICLE XIV
SINKING FUNDS
Section 14.01. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Debt Securities of a series except as
otherwise specified pursuant to Section 3.01 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Debt Securities
of any series, the amount of any cash sinking fund payment may be subject to
reduction as provided in Section 14.02. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
Section 14.02. Satisfaction of Mandatory Sinking Fund
Payments with Debt Securities.
In lieu of making all or any part of a mandatory sinking fund
payment with respect to any Debt Securities of a series in cash, the Company may
at its option, at any time no more than sixteen months and no less than 45 days
prior to the date on which such sinking fund payment is due, deliver to the
Trustee Debt Securities of such series (together with the unmatured Coupons, if
any, appertaining thereto) theretofore purchased or otherwise acquired by the
Company, except Debt Securities of such series which have been redeemed through
the application of mandatory sinking fund payments pursuant to the terms of the
Debt Securities of such series, accompanied by a Company Order instructing the
Trustee to credit such obligations and stating that the Debt Securities of such
series were originally issued by the Company by way of bona fide sale or other
negotiation for value, provided that such Debt Securities shall not have been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Debt
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
Section 14.03. Redemption of Debt Securities for Sinking
Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Debt Securities (unless a shorter period shall be satisfactory
to the Trustee), the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency or Currencies in
which the Debt Securities of such series are denominated (except as provided
pursuant to Section 3.01) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Debt Securities of such series pursuant to
Section 14.02 and whether the Company intends to exercise its rights to make a
permitted optional sinking fund payment with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. In the case of the
failure of the Company to deliver such certificate, the sinking fund payment due
on the next succeeding sinking fund payment date for such series shall be paid
entirely in cash and shall be sufficient to redeem the principal amount of the
Debt Securities of such series subject to a mandatory sinking fund payment
without the right to deliver or credit
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Debt Securities as provided in Section 14.02 and without the right to make any
optional sinking fund payment with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional)
made in cash plus any unused balance of any preceding sinking fund payments made
with respect to the Debt Securities of any particular series shall be applied by
the Trustee (to the extent it is acting as a Paying Agent with respect to
Dollars) or other Paying Agent appointed by the Company (or by the Company if
the Company is acting as its own Paying Agent) on the sinking fund payment date
on which such payment is made (or, if such payment is made before a sinking fund
payment date, on the sinking fund payment date immediately following the date of
such payment) to the redemption of Debt Securities of such series at the
Redemption Price specified in such Debt Securities with respect to the sinking
fund. Any sinking fund moneys not so applied or allocated by the Trustee (to the
extent it is acting as a Paying Agent with respect to Dollars) or other Paying
Agent appointed by the Company (or by the Company if the Company is acting as
its own Paying Agent) to the redemption of Debt Securities shall be added to the
next sinking fund payment received by the Trustee (to the extent it is acting as
a Paying Agent with respect to Dollars) or other Paying Agent appointed by the
Company (or if the Company is acting as its own Paying Agent, segregated and
held in trust as provided in Section 12.04) for such series and, together with
such payment (or such amount so segregated) shall be applied in accordance with
the provisions of this Section. Any and all sinking fund moneys with respect to
the Debt Securities of any particular series held by the Trustee (to the extent
it is acting as a Paying Agent with respect to Dollars) or other Paying Agent
appointed by the Company (or if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in Section 12.04) on the last sinking
fund payment date with respect to Debt Securities of such series and not held
for the payment or redemption of particular Debt Securities of such series shall
be applied by the Trustee (to the extent it is acting as a Paying Agent with
respect to Dollars) or other Paying Agent appointed by the Company (or by the
Company if the Company is acting as its own Paying Agent), together with other
moneys, if necessary, to be deposited (or segregated) sufficient for the
purpose, to the payment of the principal of the Debt Securities of such series
at Maturity.
The Trustee shall select or cause to be selected the Debt
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 13.03 and the Company shall cause notice of the redemption
thereof to be given in the manner provided in Section 13.04. Such notice having
been duly given, the redemption of such Debt Securities shall be made upon the
terms and in the manner stated in Section 13.06.
On or before 10:00 a.m. (New York City time) on each sinking
fund payment date, the Company shall pay to the Trustee (to the extent it is
acting as a Paying Agent with respect to Dollars) or other Paying Agent
appointed by the Company (or, if the Company is acting as its own Paying Agent,
the Company shall segregate and hold in trust as provided in Section 12.04) in
cash a sum, in the Currency or Currencies in which Debt Securities of such
series are denominated (except as provided pursuant to Sections 3.01 or 3.10),
equal to the principal and any interest accrued to the Redemption Date for Debt
Securities or portions thereof to be redeemed on such sinking fund payment date
pursuant to this Section.
Neither the Trustee, any Paying Agent nor the Company shall
redeem any Debt Securities of a series with sinking fund moneys or mail any
notice of redemption of Debt Securities of such series by operation of the
sinking fund for such series during the continuance of a default in payment of
interest, if any, on any Debt Securities of such series or of any Event of
Default (other than an Event of Default occurring as a consequence of this
paragraph) with respect to the Debt Securities of such series, except that if
the notice of redemption shall have been provided in accordance with the
provisions hereof, the Trustee or applicable Paying Agent (or the Company, if
the Company is then acting as its own Paying Agent) shall redeem such Debt
Securities if cash sufficient for that purpose shall be deposited with the
Trustee or such other Paying Agent as
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provided above (or segregated by the Company) for that purpose in accordance
with the terms of this Article. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the Debt Securities and Coupons, if any, of such series; provided,
however, that in case such default or Event of Default shall have been cured or
waived as provided herein, such moneys shall thereafter be applied on or prior
to the next sinking fund payment date for the Debt Securities of such series on
which such moneys may be applied pursuant to the provisions of this Section.
ARTICLE XV
DEFEASANCE
Section 15.01. Applicability of Article.
If, pursuant to Section 3.01, provision is made for the
defeasance of Debt Securities of a series, and if the Debt Securities of such
series are Registered Securities and denominated and payable only in Dollars
(except as provided pursuant to Section 3.01 and subject to the proviso in the
last sentence of this paragraph) then the provisions of this Article shall be
applicable except as otherwise specified pursuant to Section 3.01 for Debt
Securities of such series. Defeasance provisions, if any, for Debt Securities
denominated and/or payable in a Foreign Currency or Currencies or for Bearer
Securities may be specified pursuant to Section 3.01; provided, however, that
nothing herein or therein shall obligate the Trustee (without its consent, at
its sole option) to hold or maintain any account, or act as Paying Agent with
respect to, any Foreign Currency or Currencies.
Section 15.02. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations.
At the Company's option, either (a) the Company shall be
deemed to have been Discharged (as defined below) from its obligations with
respect to Debt Securities of any series ("legal defeasance option") or (b) the
Company shall cease to be under any obligation to comply with any term,
provision or condition set forth in Section 10.01 with respect to Debt
Securities of any series (and, if so specified pursuant to Section 3.01, any
other obligation of the Company or restrictive covenant added for the benefit of
such series pursuant to Section 3.01) ("covenant defeasance option") at any time
after the applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Debt Securities of such series (i) money
in an amount, or (ii) U.S. Government Obligations (as defined below)
which through the payment of interest and principal in respect thereof
in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (iii) a
combination of (i) and (ii), sufficient, in the opinion (with respect
to (i) and (ii)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge each installment of principal
(including any mandatory sinking fund payments) of and premium, if any,
and interest on, the Outstanding Debt Securities of such series on the
dates such installments of interest or principal and premium are due;
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(2) such deposit shall not cause the Trustee with respect
to the Debt Securities of that series to have a conflicting interest as
defined in Section 6.08 and for purposes of the Trust Indenture Act
with respect to the Debt Securities of any series;
(3) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it
is bound;
(4) if the Debt Securities of such series are then listed
on any national securities exchange, the Company shall have delivered
to the Trustee an Opinion of Counsel or a letter or other document from
such exchange to the effect that the Company's exercise of its option
under this Section would not cause such Debt Securities to be delisted;
(5) no Event of Default or event (including such deposit)
which, with notice or lapse of time or both, would become an Event of
Default with respect to the Debt Securities of such series shall have
occurred and be continuing on the date of such deposit and, with
respect to the legal defeasance option only, no Event of Default under
Section 5.01(7) or Section 5.01(8) or event which with the giving of
notice or lapse of time, or both, would become an Event of Default
under Section 5.01(7) or Section 5.01(8) shall have occurred and be
continuing on the 91st day after such date; and
(6) the Company shall have delivered to the Trustee an
Opinion of Counsel or a ruling from the Internal Revenue Service to the
effect that the Holders of the Debt Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance or Discharge.
Notwithstanding the foregoing, if the Company exercises its covenant defeasance
option and an Event of Default under Section 5.01(7) or Section 5.01(8) or event
which with the giving of notice or lapse of time, or both, would become an Event
of Default under Section 5.01(7) or Section 5.01(8) shall have occurred and be
continuing on the 91st day after the date of such deposit, the obligations of
the Company referred to under the definition of covenant defeasance option with
respect to such Debt Securities shall be reinstated.
"Discharged" means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by, and obligations
under, the Debt Securities of such series and to have satisfied all the
obligations under this Indenture relating to the Debt Securities of such series
(and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except (A) the rights of Holders of Debt
Securities of such series to receive, from the trust fund described in clause
(1) above, payment of the principal of (and premium, if any) and interest on
such Debt Securities when such payments are due, (B) the Company's obligations
with respect to the Debt Securities of such series under Sections 3.04, 3.05,
3.06, 12.03 and 15.03 and (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States for the payment of which its full faith
and credit is pledged, or (ii) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States the payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States, which, in either case under clauses (i) or (ii), are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian
for the account of the holder of a depository receipt; provided that (except as
required by law)
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such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
Section 15.03. Deposited Moneys and U.S. Government
Obligations to Be Held in Trust.
All moneys and U.S. Government Obligations deposited with the
Trustee pursuant to Section 15.02 in respect of Debt Securities of a series
shall be held in trust and applied by it, in accordance with the provisions of
such Debt Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Debt Securities, of all
sums due and to become due thereon for principal (and premium, if any) and
interest, if any, but such money need not be segregated from other funds except
to the extent required by law.
Section 15.04. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay
or return to the Company upon Company Request any moneys or U.S. Government
Obligations held by them at any time that are not required for the payment of
the principal of (and premium, if any) and interest on the Debt Securities of
any series for which money or U.S. Government Obligations have been deposited
pursuant to Section 15.02.
The provisions of the last paragraph of Section 12.04 shall
apply to any money held by the Trustee or any Paying Agent under this Article
that remains unclaimed for two years after the Maturity of any series of Debt
Securities for which money or U.S. Government Obligations have been deposited
pursuant to Section 15.02.
ARTICLE XVI
CONVERSION
Section 16.01. Applicability; Conversion Privilege.
Except as otherwise specified pursuant to Section 3.01 for
Debt Securities of any series, the provisions of this Article Sixteen shall be
applicable to any Debt Securities that are convertible into Common Stock. If so
provided pursuant to Section 3.01 with respect to the Debt Securities of any
series, the Holder of a Debt Security of such series shall have the right, at
such Holder's option, to convert, in accordance with the terms of such series of
Debt Securities and this Article Sixteen, all or any part (in a denomination of,
unless otherwise specified pursuant to Section 3.01 with respect to Securities
of such series, $1,000 in principal amount or any integral multiple thereof) of
such Debt Security into shares of Common Stock or, as to any Debt Securities
called for redemption, at any time prior to the time and date fixed for such
redemption (unless the Company shall default in the payment of the Redemption
Price, in which case such right shall not terminate at such time and date).
Section 16.02. Conversion Procedure; Conversion Price;
Fractional Shares.
(a) Each Debt Security to which this Article is
applicable shall be convertible at the office of the Conversion Agent, and at
such other place or places, if any, specified in pursuant to Section 3.01 with
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respect to the Debt Securities of such series, into fully paid and nonassessable
shares (calculated to the nearest 1/100th of a share) of Common Stock. The Debt
Securities will be converted into shares of Common Stock at the Conversion Price
therefor. No payment or adjustment shall be made in respect of dividends on the
Common Stock or accrued interest on a converted Debt Security except as
described in Section 16.09. The Company may, but shall not be required, in
connection with any conversion of Debt Securities, to issue a fraction of a
share of Common Stock and, if the Company shall determine not to issue any such
fraction, the Company shall, subject to Section 16.03(4), make a cash payment
(calculated to the nearest cent) equal to such fraction multiplied by the
Closing Price of the Common Stock on the last Trading Day prior to the date of
conversion.
(b) Before any Holder of a Debt Security shall be
entitled to convert the same into Common Stock, such Holder shall surrender such
Debt Security duly endorsed to the Company or in blank, or, in the case of
Bearer Securities, together with all unmatured Coupons and any matured Coupons
in default attached thereto, at the office of the Conversion Agent or at such
other place or places, if any, specified pursuant to Section 3.01 (in the case
of Registered Securities) and at an office of the Conversion Agent or at such
other place or places, if any, outside of the United States as is specified
pursuant to Section 3.01 (in the case of Bearer Securities), and shall give
written notice to the Company at said office or place that he elects to convert
the same and shall state in writing therein the principal amount of Debt
Securities to be converted and the name or names (with addresses) in which he
wishes the certificate or certificates for Common Stock to be issued; provided,
however, that no Debt Security or portion thereof shall be accepted for
conversion unless the principal amount of such Debt Security or such portion,
when added to the principal amount of all other Debt Securities or portions
thereof then being surrendered by the Holder thereof for conversion, exceeds the
then effective Conversion Price with respect thereto. If the Holder of a Bearer
Security is unable to produce any such unmatured Coupon or Coupons or matured
Coupon or Coupons in default, such conversion may be effected if the Bearer
Securities to be surrendered for conversion are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such missing
Coupon or Coupons, or the surrender of such missing Coupon or Coupons may be
waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Bearer Security shall surrender
to any Paying Agent any such missing Coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however that except as otherwise provided in Section
12.03, interest represented by Coupons shall be payable only upon presentation
and surrender of those Coupons at an office or agency located outside the United
States. If more than one Debt Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares of Common Stock which
shall be deliverable upon conversion shall be computed on the basis of the
aggregate principal amount of the Debt Securities (or specified portions thereof
to the extent permitted thereby) so surrendered. Subject to the next succeeding
sentence, the Company will, as soon as practicable thereafter, issue and deliver
at said office or place to such Holder of a Debt Security, or to his nominee or
nominees, certificates for the number of full shares of Common Stock to which he
shall be entitled as aforesaid, together, subject to the last sentence of
paragraph (a) above, with cash in lieu of any fraction of a share to which he
would otherwise be entitled. The Company shall not be required to deliver
certificates for shares of Common Stock while the stock transfer books for such
stock or the Security Register are duly closed for any purpose, but certificates
for shares of Common Stock shall be issued and delivered as soon as practicable
after the opening of such books or Security Register. A Debt Security shall be
deemed to have been converted as of the close of business on the date of the
surrender of such Debt Security for conversion as provided above, and the Person
or Persons entitled to receive the Common Stock issuable upon such conversion
shall be treated for all purposes as the record Holder or Holders of such Common
Stock as of the close of business on such date. In case any Debt Security shall
be surrendered for partial conversion, the Company shall execute and the Trustee
shall authenticate and deliver
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to or upon the written order of the Holder of the Debt Securities so
surrendered, without charge to such Holder (subject to the provisions of Section
16.08), a new Debt Security or Securities in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered
Debt Security.
Section 16.03. Adjustment of Conversion Price for Common
Stock.
The Conversion Price with respect to any Debt Security which
is convertible into Common Stock shall be adjusted from time to time as follows:
(1) In case the Company shall, at any time or from time
to time while any of such Debt Securities are outstanding, (i) pay a
dividend in shares of its Common Stock to holders of Common Stock, (ii)
combine its outstanding shares of Common Stock into a smaller number of
shares of Common Stock, (iii) subdivide its outstanding shares of
Common Stock into a greater number of shares of Common Stock or (iv)
make a distribution in shares of Common Stock to holders of Common
Stock, then the Conversion Price in effect immediately before such
action shall be adjusted so that the Holders of such Debt Securities,
upon conversion thereof into Common Stock immediately following such
event, shall be entitled to receive the kind and amount of shares of
capital stock of the Company which they would have owned or been
entitled to receive upon or by reason of such event if such Debt
Securities had been converted immediately before the record dated (or,
if no record date, the effective date) for such event. An adjustment
made pursuant to this Section 16.03(1) shall become effective
retroactively immediately after the record date in the case of a
dividend or distribution and shall become effective retroactively
immediately after the effective date in the case of a subdivision or
combination. For the purposes of this Section 16.03(1), each Holder of
Debt Securities shall be deemed to have failed to exercise any right to
elect the kind or amount of securities receivable upon the payment of
any such dividend, subdivision, combination or distribution (provided
that if the kind or amount of securities receivable upon such dividend,
subdivision, combination or distribution is not the same for each
nonelecting share, then the kind and amount of securities or other
property receivable upon such dividend, subdivision, combination or
distribution for each nonelecting share shall be deemed to be the kind
and amount so receivable per share by a plurality of the nonelecting
shares).
(2) In case the Company shall, at any time or from time
to time while any of such Debt Securities are outstanding, issue rights
or warrants to all holders of shares of its Common Stock entitling them
(for a period expiring within 45 days after the record date for such
issuance) to subscribe for or purchase shares of Common Stock (or
securities convertible into shares of Common Stock) at a price per
share less than the Current Market Price of the Common Stock at such
record date (treating the price per share of the securities convertible
into Common Stock as equal to (x) the sum of (i) the price for a unit
of the security convertible into Common Stock and (ii) any additional
consideration initially payable upon the conversion of such security
into Common Stock divided by (y) the number of shares of Common Stock
initially underlying such convertible security), the Conversion Price
with respect to such Debt Securities shall be adjusted so that it shall
equal the price determined by dividing the Conversion Price in effect
immediately prior to the date of issuance of such rights or warrants by
a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of additional shares of Common Stock offered
for subscription or purchase (or into which the convertible securities
so offered are initially convertible), and the denominator of which
shall be the number of shares of Common Stock outstanding on the date
of issuance of securities which the aggregate offering price of the
total number of shares of securities so offered for subscription or
purchase (or the aggregate purchase price of the convertible securities
so offered plus the aggregate amount of any additional
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consideration initially payable upon conversion of such securities into
Common Stock) would purchase at such Current Market Price of the Common
Stock. Such adjustment shall become effective retroactively immediately
after the record date for the determination of stockholders entitled to
receive such rights or warrants.
(3) In the case the Company shall, at any time or from
time to time while any of such Debt Securities are outstanding,
distribute to all holders of shares of its Common Stock (including any
such distribution made in connection with a consolidation or merger in
which the Company is the continuing corporation and the Common Stock is
not changed or exchanged) cash, evidences of its indebtedness,
securities or assets (excluding (i) regular periodic cash dividends in
amounts, if any, determined from time to time by the Board of
Directors, (ii) dividends payable in shares of Common Stock for which
adjustment is made under Section 16.03(1) or (iii) rights or warrants
to subscribe for or purchase securities of the Company (excluding those
referred to in Section 16.03(2))), then in each such case the
Conversion Price with respect to such Debt Securities determined by
dividing the Conversion Price in effect immediately prior to the date
of such distribution by a fraction, the numerator of which shall be the
Current Market Price of the Common Stock on the record date referred to
below, and the denominator of which shall be such Current Market Price
of the Common Stock less the then fair market value (as determined by
the Board of Directors of the Company, whose determination shall be
conclusive) of the portion of the cash or assets or evidences of
indebtedness or securities so distributed or of such subscription
rights or warrants applicable to one share of Common Stock (provided
that such denominator shall never be less than 1.0); provided however,
that no adjustment shall be made with respect to any distribution of
rights to purchase securities of the Company if a Holder of Debt
Securities would otherwise be entitled to receive such rights upon
conversion at any time of such Debt Securities into Common Stock unless
such rights are subsequently redeemed by the Company, in which case
such redemption shall be treated for purposes of this section as a
dividend on the Common Stock. Such adjustment shall become effective
retroactively immediately after the record date for the determination
of stockholders entitled to receive such distribution; and in the event
that such distribution is not so made, the Conversion Price shall again
be adjusted to the Conversion Price which would then be in effect if
such record date had not been fixed.
(4) The Company shall be entitled to make such additional
adjustments in the Conversion Price, in addition to those required by
subsections 16.03(1), 16.03(2), and 16.03(03), as shall be necessary in
order that any dividend or distribution of Common Stock, any
subdivision, reclassification or combination of shares of Common Stock
or any issuance of rights or warrants referred to above shall not be
taxable to the holders of Common Stock for United States Federal income
tax purposes.
(5) In any case in which this Section 16.03 shall require
that any adjustment be made effective as of or retroactively
immediately following a record date, the Company may elect to defer
(but only for five (5) Trading Days following the filing of the
statement referred to in Section 16.05) issuing to the Holder of any
Debt Securities converted after such record date the shares of Common
Stock and other capital stock of the Company issuable upon such
conversion over and above the shares of Common Stock and other capital
stock of the Company issuable upon such conversion on the basis of the
Conversion Price prior to adjustment; provided, however, that the
Company shall deliver to such Holder a due xxxx or other appropriate
instrument evidencing such Holder's right to receive such additional
shares upon the occurrence of the event requiring such adjustment.
(6) All calculations under this Section 16.03 shall be
made to the nearest cent or one-hundredth of a share of security, with
one-half cent and 0.005 of a share, respectively, being rounded
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upward. Notwithstanding any other provision of this Section 16.03, the
Company shall not be required to make any adjustment of the Conversion
Price unless such adjustment would require an increase or decrease of
at least 1% of such price. Any lessor adjustment shall be carried
forward and shall be made at the time of and together with the next
subsequent adjustment which, together with any adjustment or
adjustments so carried forward, shall amount to an increase or decrease
of at least 1% in such price. Any adjustments under this Section 16.03
shall be made successively whenever an event requiring such an
adjustment occurs.
(7) In the event that at any time, as a result of an
adjustment made pursuant to this Section 16.03, the Holder of any Debt
Security thereafter surrendered for conversion shall become entitled to
receive any shares of stock of the Company other than shares of Common
Stock into which the Debt Securities originally were convertible, the
Conversion Price of such other shares so receivable upon conversion of
any such Debt Security shall be subject to adjustment from time to time
in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to Common Stock contained in subparagraphs (1)
through (6) of this Section 16.03, and the provisions of Sections
16.01, 16.02 and 16.04 through 16.09 with respect to the Common Stock
shall apply on like or similar terms to any such other shares and the
determination of the Board of Directors as to any such adjustment shall
be conclusive.
(8) No adjustment shall be made pursuant to this Section:
(i) if the effect thereof would be to reduce the Conversion Price below
the par value (if any) of the Common Stock or (ii) subject to 16.03(5)
hereof, with respect to any Debt Security that is converted prior to
the time such adjustment otherwise would be made.
Section 16.04 Consolidation or Merger of the Company.
In case of either (a) any consolidation or merger to which the
Company is a party, other than a merger or consolidation in which the company is
the surviving or continuing corporation and which does not result in a
reclassification of, or change (other than a change in par value or from par
value to no par value or from no par value to par value, as a result of a
subdivision or combination) in, outstanding shares of Common Stock or (b) any
sale or conveyance of all or substantially all of the property and assets of the
Company to another Person, then each Debt Security then outstanding shall be
convertible from and after such merger, consolidation, sale or conveyance of
property and assets into the kind and amount of shares of stock or other
securities and property (including cash) receivable upon such consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
into which such Debt Securities would have been converted immediately prior to
such consolidation, merger, sale or conveyance, subject to adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article Sixteen (and assuming such holder of Common Stock failed to
exercise his rights of election, if any, as to the kind or amount of securities,
cash or other property (including cash) receivable upon such consolidation,
merger, sale or conveyance (provided that, if the kind or amount of securities,
cash or other property (including cash) receivable upon such consolidation,
merger, sale or conveyance is not the same for each nonelecting share, then the
kind and amount of securities, cash or other property (including cash)
receivable upon such consolidation, merger, sale or conveyance for each
nonelecting share shall be deemed to be the kind and amount so receivable per
share by a plurality of the nonelecting shares or securities)). The Company
shall not enter into any of the transactions referred to in clause (a) or (b) of
the preceding sentence unless effective provision shall be made so as to give
effect to the provisions set forth in this Section 16.04. The provisions of this
Section 16.04 shall apply similarly to successive consolidations, mergers, sales
or conveyances.
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Section 16.05. Notice of Adjustment.
Whenever an adjustment in the Conversion Price with respect to
a series of Debt Securities is required:
(1) the Company shall forthwith place on file with the
Trustee and any Conversion Agent for such Securities a certificate of
the Treasurer of the Company, stating the adjusted Conversion Price
determined as provided herein and setting forth in reasonable detail
such facts as shall be necessary to show the reason for and the manner
of computing such adjustment, such certificate to be conclusive
evidence that the adjustment is correct; and
(2) a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall
forthwith be given by the Company, or at the Company's request, by the
Trustee in the name and at the expense of the Company, in the manner
provided in Section 1.05. Any notice so given shall be conclusively
presumed to have been duly given, whether or not the Holder receives
such notice.
Section 16.06. Notice in Certain Events.
In case:
(1) of a consolidation or merger to which the Company is
a party and for which approval of any stockholders of the Company is
required, or of the sale or conveyance to another Person or entity or
group of Persons or entities acting in concert as a partnership,
limited partnership, syndicate or other group (within the meaning of
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of
all or substantially all of the property and assets of the Company; or
(2) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(3) of any action triggering an adjustment of the
Conversion Price pursuant to this Article Sixteen;
then, in each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent for the applicable Debt Securities, and shall cause to be
given, to the Holders of record of applicable Debt Securities in the manner
provided in Section 1.05, at least fifteen (15) days prior to the applicable
date hereinafter specified, a notice stating (x) the date on which a record is
to be taken for the purpose of any distribution or grant of rights or warrants
triggering an adjustment to the Conversion Price pursuant to this Article
Sixteen, or, if a record is not to be taken, the date as of which the holders of
record or Common Stock entitled to such distribution, rights or warrants are to
be determined, or (y) the date on which any reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding up triggering an
adjustment to the Conversion Price pursuant to this Article Sixteen is expected
to become effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding up.
Failure to give such notice or any defect therein shall not
affect the legality or validity of the proceedings described in clause (1), (2),
or (3) of this Section.
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Section 16.07. Company to Reserve Stock; Registration;
Listing.
(a) The Company shall at all times reserve and keep
available, free from preemptive rights, out of its authorized but unissued
shares of Common Stock, for the purpose of effecting the conversion of the Debt
Securities, such number of its duly authorized shares of Common Stock as shall
from time to time be sufficient to effect the conversion of all applicable
outstanding Debt Securities into such Common Stock at any time (assuming that,
at the time of the computation of such number of shares or securities, all such
Debt Securities would be held by a single holder); provided, however, that
nothing contained herein shall preclude the Company from satisfying its
obligations in respect of the conversion of the Debt Securities by delivery of
purchased shares of Common Stock which are held in the treasury of the Company.
The Company shall from time to time, in accordance with the laws of the State of
Delaware, use its best efforts to cause the authorized amount of the Common
Stock to be increased if the aggregate of the authorized amount of the Common
Stock remaining unissued and the issued shares of such Common Stock in its
treasury (other than any such shares reserved for issuance in any other
connection) shall not be sufficient to permit the conversion of all Debt
Securities.
(b) If any shares of Common Stock which would be issuable
upon conversion of Debt Securities hereunder require registration with or
approval of any governmental authority before such shares or securities may be
issued upon such conversion, the Company will in good faith and as expeditiously
as possible endeavor to cause such shares or securities to be duly registered or
approved, as the case may be. The Company will endeavor to list the shares of
Common Stock required to be delivered upon conversion of the Debt Securities
prior to such delivery upon the principal national securities exchange upon
which the outstanding Common Stock is listed at the time of such delivery.
Section 16.08. Taxes on Conversion.
The Company shall pay any and all documentary, stamp or
similar issue or transfer taxes that may be payable in respect of the issue or
delivery of shares of Common Stock on conversion of Debt Securities pursuant
hereto. The Company shall not, however, be required to pay any such tax which
may be payable in respect of any transfer involved in the issue or delivery of
shares of Common Stock or the portion, if any, of the Debt Securities which are
not so converted in a name other than that in which the Debt Securities so
converted were registered (in case of Registered Securities), and no such issue
or delivery shall be made unless and until the Person requesting such issue has
paid to the Company the amount of such tax or has established to the
satisfaction of the Company that such tax has been paid.
Section 16.09 Conversion After Record Date.
If any Debt Securities are surrendered for conversion
subsequent to the record date preceding an Interest Payment Date but on or prior
to such Interest Payment Date (except Debt Securities called for redemption on a
Redemption Date between such record date and Interest Payment Date), the Holder
of such Debt Securities at the close of business on such record date shall be
entitled to receive the interest payable on such Debt Securities on such
Interest Payment Date notwithstanding the conversion thereof. Debt Securities
surrendered for conversion during the period from the close of business on any
record date next preceding any Interest Payment Date to the opening of business
on such Interest Payment Date to the opening of business on such Interest
Payment Date shall (except in the case of Debt Securities which have been called
for redemption on a Redemption Date within such period) be accompanied by
payment in New York Clearing House funds or other funds and in the Currency
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the Debt Securities being surrendered for conversion.
Except as provided in
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this Section 16.09, no adjustments in respect of payments of interest on Debt
Securities surrendered for conversion or any dividends or distributions of
interest on the Common Stock issued upon conversion shall be made upon the
conversion of any Debt Securities.
Section 16.10. Company Determination Final.
Any determination that the Company or the Board of Directors
must make pursuant to this Article is conclusive.
Section 16.11 Trustee's Disclaimer.
The Trustee has no duty to determine when an adjustment under
this Article should be made, how it should be made or what it should be. The
Trustee makes no representation as to the validity or value of any securities or
assets issued upon conversion of Debt Securities. The Trustee shall not be
responsible for the Company's failure to comply with this Article. Each
Conversion Agent other than the Company shall have the same protection under
this Section as the Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
PRISON REALTY TRUST, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Title: Chief Operating Officer
------------------------------------
Attest:
/s/ Xxxxxxxx X. Xxxxx
-----------------------------
Title: Notary Public
Seal
STATE STREET BANK AND TRUST COMPANY
as Trustee
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Title: Vice President
------------------------------------
Attest:
/s/ Xxxxx X. Xxxxxxxx
-----------------------------
Title: Notary Public
Seal
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EXHIBIT A
[FORMS OF CERTIFICATION]
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
-------------------------
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof and except as
set forth below principal amount of the above captioned Debt Securities
held by you for our account (i) is owned by person(s) that are not United States
person(s) (as defined below), (ii) is owned by United States person(s) that are
(a) foreign branches of United States financial institutions (as defined in
Section 1.165-12(c)(1)(v) of the United States Treasury regulations) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution hereby agrees, on its
own behalf or through its agent, that you may advise the Company or the
Company's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the Treasury regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for the purpose of resale during the
restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury regulations), and in addition if the owner of the Debt
Securities is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)) this is
to further certify that such financial institution has not acquired the Debt
Securities for the purpose of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the beneficial interest in the temporary global Security held by you for our
account in accordance with your operating procedures if any applicable statement
herein is not correct on such date, and in the absence of any such notification
it may be assumed that this certification applies as of such date.
This certificate excepts and does not relate to ___________
principal amount of Debt Securities held by you for our account as to which we
are not able to provide a certificate in this form. We understand that exchange
of such portion of the temporary global Note for definitive Bearer Securities or
interests in a permanent global Note cannot be made until we are able to provide
a certificate in this form.
We understand that this certificate is required in connection
with certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust
101
the income of which is subject to United States federal income taxation
regardless of its source. "United States" means the United States of America
(including the States and the District of Columbia) and its "possessions" which
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
Dated:_______________________________, 19__
[To be dated no earlier than the
10th day before the Exchange Date]
By:
---------------------------------
As, or as agent for, the
beneficial owner(s) of
the portion of the
temporary global Note
to which this
certificate relates.
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102
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND
CEDEL, S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL NOTE]
CERTIFICATE
---------------------------
[Insert title or sufficient description
of Securities to be delivered]
The undersigned certifies that, based solely on certifications
we have received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Indenture as of the date hereof, __
________ principal amount of the above-captioned Debt Securities (i) is owned by
person(s) that are not United States person(s) (as defined below), (ii) is owned
by United States person(s) that are (a) foreign branches of United States
financial institutions (as defined in Section 1.165-12(c)(1)(v) of the United
States Treasury regulations) ("financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the Debt
Securities through foreign branches of United States financial institutions and
who hold the Debt Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through its agent, that
we may advise the Company or the Company's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the Treasury regulations thereunder), or (iii) is owned by
United States or foreign financial institution(s) for the purpose of resale
during the restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of
the United States Treasury regulations), and in addition United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Debt Securities for the purpose of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
We further certify (i) that we are not making available for
exchange or collection of any interest any portion of the temporary Global Note
excepted in such certifications and (ii) that as of the date hereof we have not
received any notification from any of our Member Organizations to the effect
that the statements made by such Member Organizations with respect to any
portion of the part submitted herewith for exchange or collection of any
interest are no longer true and cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection
with certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is subject to United States federal income taxation regardless of its
source. "United States" means the United States of America (including the States
and the District of Columbia) and its "possessions" which include Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
103
Dated:______________________________, 19__
[To be dated no earlier than the
Exchange Date]
By:
---------------------------
[XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE, as
Operator of the Euro-Clear
System] [CEDEL, S.A.]
2
