EXHIBIT 4.2
RESIDENTIAL CAPITAL CORPORATION
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS TRUSTEE
SUBORDINATED INDENTURE
DATED AS OF _____________, 2005
SUBORDINATED DEBT SECURITIES
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ARTICLE ONE. DEFINITIONS.......................................... 1
Section 1.01. Definitions.......................................... 1
Section 1.02. Notice to Securityholders............................ 8
ARTICLE TWO. ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF
SECURITIES........................................... 8
Section 2.01. Amount Unlimited; Issuable in Series................. 8
Section 2.02. Form of Trustee's Certificate of Authentication...... 11
Section 2.03. Form, Execution, Authentication, Delivery and Dating
of Securities........................................ 11
Section 2.04. Denominations; Record Date........................... 13
Section 2.05. Exchange and Registration of Transfer of Securities.. 13
Section 2.06. Temporary Securities................................. 15
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities...... 15
Section 2.08. Cancellation......................................... 16
Section 2.09. Computation of Interest.............................. 17
Section 2.10. Securities in Global Form............................ 17
Section 2.11. Medium-Term Securities............................... 17
ARTICLE THREE. REDEMPTION OF SECURITIES............................. 18
Section 3.01. Redemption of Securities; Applicability of Article... 18
Section 3.02. Notice of Redemption; Selection of Securities........ 18
Section 3.03. Payment of Securities Called for Redemption.......... 19
ARTICLE FOUR. PARTICULAR COVENANTS OF THE COMPANY.................. 20
Section 4.01. Payment of Principal, Premium, Interest and
Additional Amounts................................... 20
Section 4.02. Offices for Notices and Payments, etc................ 20
Section 4.03. Provisions as to Paying Agent........................ 21
Section 4.04. Luxembourg Publications.............................. 22
Section 4.05. Statement by Officers as to Default.................. 22
Section 4.06. Existence............................................ 22
ARTICLE FIVE. SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND
THE TRUSTEE.......................................... 23
Section 5.01. Securityholder Lists................................. 23
Section 5.02. Preservation and Disclosure of Lists................. 23
Section 5.03. Reports by the Company............................... 24
TABLE OF CONTENTS
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Section 5.04. Reports by the Trustee............................... 25
ARTICLE SIX. REMEDIES ON DEFAULT.................................. 25
Section 6.01. Events of Default.................................... 25
Section 6.02. Payment of Securities on Default; Suit Therefor...... 28
Section 6.03. Application of Moneys Collected by Trustee........... 29
Section 6.04. Proceedings by Securityholders....................... 30
Section 6.05. Remedies Cumulative and Continuing................... 31
Section 6.06. Direction of Proceedings............................. 31
Section 6.07. Notice of Defaults................................... 32
Section 6.08. Undertaking to Pay Costs............................. 32
ARTICLE SEVEN. CONCERNING THE TRUSTEE............................... 33
Section 7.01. Duties and Responsibilities of Trustee............... 33
Section 7.02. Reliance on Documents, Opinions, etc................. 34
Section 7.03. No Responsibility for Recitals, etc.................. 35
Section 7.04. Ownership of Securities or Coupons................... 35
Section 7.05. Moneys to be Held in Trust........................... 35
Section 7.06. Compensation and Expenses of Trustee................. 35
Section 7.07. Officers' Certificate as Evidence.................... 35
Section 7.08. Conflicting Interest of Trustee...................... 36
Section 7.09. Eligibility of Trustee............................... 36
Section 7.10. Resignation or Removal of Trustee.................... 36
Section 7.11. Acceptance by Successor Trustee...................... 37
Section 7.12. Successor by Xxxxxx, etc............................. 38
Section 7.13. Limitations on Rights of Trustee as Creditor......... 39
ARTICLE EIGHT. CONCERNING THE SECURITYHOLDERS....................... 39
Section 8.01. Action by Securityholders............................ 39
Section 8.02. Proof of Execution by Securityholders................ 39
Section 8.03. Who Are Deemed Absolute Owners....................... 40
Section 8.04. Company-Owned Securities Disregarded................. 40
Section 8.05. Revocation of Consents; Future Securityholders
Bound................................................ 40
Section 8.06. Securities in a Foreign Currency..................... 41
ARTICLE NINE. SECURITYHOLDERS' MEETINGS............................ 41
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Section 9.01. Purposes of Meetings................................. 41
Section 9.02. Call of Meetings by Trustee.......................... 42
Section 9.03. Call of Meetings by Company or Securityholders....... 42
Section 9.04. Qualification for Voting............................. 42
Section 9.05. Regulations.......................................... 43
Section 9.06. Voting............................................... 43
ARTICLE TEN. SUPPLEMENTAL INDENTURES.............................. 44
Section 10.01. Supplemental Indentures Without Consent of
Securityholders...................................... 44
Section 10.02. Supplemental Indentures with Consent of
Securityholders...................................... 45
Section 10.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.............................. 46
Section 10.04. Notation on Securities............................... 46
ARTICLE ELEVEN. CONSOLIDATION, MERGER, SALE OR CONVEYANCE............ 46
Section 11.01. Company May Consolidate, etc., on Certain Terms...... 46
Section 11.02. Successor Corporation Substituted.................... 47
Section 11.03. Reliance by Trustee on Officers' Certificate and
Opinion of Counsel................................... 47
ARTICLE TWELVE. SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS..................................... 47
Section 12.01. Discharge of Indenture............................... 47
Section 12.02. Satisfaction, Discharge and Defeasance of Securities
of any Series........................................ 48
Section 12.03. Deposited Moneys to be Held in Trust by Trustee...... 50
Section 12.04. Paying Agent to Repay Moneys Held.................... 50
Section 12.05. Return of Unclaimed Moneys........................... 51
ARTICLE THIRTEEN. SUBORDINATION OF SECURITIES.......................... 51
Section 13.01. Agreement to Subordinate............................. 51
Section 13.02. No Payment on Securities if Senior Indebtedness in
Default.............................................. 51
Section 13.03. Priority of Senior Indebtedness...................... 52
Section 13.04. Payment Permitted in Certain Situations.............. 54
Section 13.05. Company to Give Notice of Certain Events; Reliance by
Trustee.............................................. 54
Section 13.06. Subrogation of Securities............................ 55
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Section 13.07. Company Obligation to Pay Unconditional.............. 55
Section 13.08. Authorization of Holders of Securities to Trustee to
Effect Subordination................................. 56
Section 13.09. No Waiver of Subordination Provisions................ 56
Section 13.10. Notice to Trustee of Facts Prohibiting Payments...... 56
Section 13.11. Trustee May Hold Senior Indebtedness................. 57
Section 13.12. All Indenture Provisions Subject to this Article..... 57
Section 13.13. Article Applicable to Paying Agents.................. 57
ARTICLE FOURTEEN. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS............................................ 57
Section 14.01. Indenture and Securities Solely Corporate Obligations 57
ARTICLE FIFTEEN. MISCELLANEOUS PROVISIONS............................. 57
Section 15.01. Benefits of Indenture Restricted to Parties, Holders
of Senior Indebtedness and Securityholders........... 57
Section 15.02. Provisions Binding on Company's Successors........... 57
Section 15.03. Addresses for Notices, etc........................... 58
Section 15.04. Evidence of Compliance with Conditions Precedent..... 58
Section 15.05. Legal Holidays....................................... 58
Section 15.06. Trust Indenture Act to Control....................... 58
Section 15.07. Execution in Counterparts............................ 59
Section 15.08. New York Contract.................................... 59
Section 15.09. Judgment Currency.................................... 59
Section 15.10. Severability of Provisions........................... 59
Section 15.11. Company Released From Indenture Requirements Under
Certain Circumstances................................ 59
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THIS SUBORDINATED INDENTURE, dated as of the day of _______________, 2005
between RESIDENTIAL CAPITAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (hereinafter sometimes called
the "COMPANY"), and DEUTSCHE BANK TRUST COMPANY AMERICAS, a banking corporation
duly incorporated and existing under the laws of the State of New York, as
trustee hereunder (hereinafter sometimes called the "TRUSTEE," which term shall
include any successor trustee appointed pursuant to Article Seven).
WITNESSETH:
WHEREAS, the Company deems it necessary to issue from time to time for its
lawful purposes securities (hereinafter called the "SECURITIES" or, in the
singular, "SECURITY") evidencing its unsecured indebtedness and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of the Securities in one or more series, unlimited as to principal
amount, to bear such rates of interest, to mature at such time or times and to
have such other provisions as shall be fixed as hereinafter provided; and
WHEREAS, the Company represents that all acts and things necessary to
constitute these presents a valid indenture and agreement according to its
terms, have been done and performed, and the execution of this Indenture has in
all respects been duly authorized, and the Company, in the exercise of legal
rights and power in it vested, is executing this Indenture;
NOW, THEREFORE:
In order to declare the terms and conditions upon which the Securities are
authenticated, issued and received, and in consideration of the premises, of the
purchase and acceptance of the Securities by the Holders thereof and of the sum
of one dollar to it duly paid by the Trustee at the execution of these presents,
the receipt whereof is hereby acknowledged, the Company covenants and agrees
with the Trustee, for the equal and proportionate benefit of the respective
Holders from time to time of the Securities, as follows:
ARTICLE ONE.
Definitions.
Section 1.01. Definitions. The terms defined in this Section (except as
herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture which are defined in the Trust Indenture Act or which are
by reference therein defined in the Securities Act shall have the meanings
(except as herein otherwise expressly provided or unless the context otherwise
clearly requires) assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture as originally executed.
The words "HEREIN," "HEREOF" and "HEREUNDER" and other words of similar import
refer to this Indenture as a whole, including the Exhibits to this instrument,
and not to any particular article, Section or other subdivision. Certain terms
used wholly or principally within an Article of this Indenture may be defined in
that Article.
ADDITIONAL AMOUNTS:
The term "ADDITIONAL AMOUNTS" shall mean any additional amounts which are
required by a Security or by or pursuant to a Board Resolution under
circumstances specified therein, to be paid by the Company in respect of certain
taxes, assessments or governmental charges imposed on certain Holders of
Securities and which are owing to such Holders of Securities.
APPLICANTS:
The term "APPLICANTS" shall have the meaning specified in Section 5.02(b).
AUTHORIZED NEWSPAPER:
The term "AUTHORIZED NEWSPAPER" shall mean a newspaper in an official
language of the country of publication of general circulation in the place in
connection with which the term is used. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof which
is made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
BOARD OF DIRECTORS:
The term "BOARD OF DIRECTORS" shall mean the Board of Directors of the
Company or any committee established by the Board of Directors.
BOARD RESOLUTION:
The term "BOARD RESOLUTION" shall mean a resolution certified by the
Secretary or 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:
The term "BUSINESS DAY" shall mean, with respect to any Security, a day
(other than a Saturday or Sunday) that in the city (or in any of the cities, if
more than one) in which amounts are payable as specified on the face of the form
of such Security, is neither a legal holiday nor a day on which banking
institutions are authorized or required by law, regulation or executive order to
close.
COMPANY:
The term "COMPANY" shall mean the Person named as the "COMPANY" in the
first paragraph of this instrument until a successor company shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"COMPANY" shall mean such successor company.
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COMPANY ORDER:
The term "COMPANY ORDER" shall mean any request, order or confirmation
signed by a Person designated pursuant to Section 2.03 to the Trustee, which may
be transmitted by telecopy or in writing.
CORPORATE TRUST OFFICE:
The term "CORPORATE TRUST OFFICE" means the office of the Trustee in New
York, New York, at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is located at
00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, except that, with respect to presentation of
Securities for payment or registration of transfers and exchanges and the
location of the Security Registrar, such term means the office or agency of the
Trustee in said city at which at any particular time its corporate agency
business shall be conducted, which at the date hereof is located at 00 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Trust and Securities
Services.
CORPORATION:
The term "CORPORATION" shall mean a corporation, limited liability company,
a statutory trust, a limited partnership or similar limited liability entity.
COUPON:
The term "COUPON" shall mean any interest coupon appertaining to a
Security.
COUPON SECURITY:
The term "COUPON SECURITY" shall mean any Security authenticated and
delivered with one or more Coupons appertaining thereto.
DEFAULTS:
The term "DEFAULTS" shall have the meaning specified in Section 6.07.
DEPOSITORY:
The term "DEPOSITORY" shall mean, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depository by the Company pursuant to
Section 2.01 until a successor Depository shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "DEPOSITORY" shall mean
or include each Person who is then a Depository hereunder, and if at any time
there is more than one such Person, "DEPOSITORY" as used with respect to the
Securities of any such series shall mean the Depository with respect to the
Securities of that series.
EVENT OF DEFAULT:
The term "EVENT OF DEFAULT" shall mean any event specified as such in
Section 6.01.
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EXCHANGE ACT:
The term "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
GLOBAL SECURITY:
The term "GLOBAL SECURITY" shall mean a Registered Security or an
Unregistered Security evidencing all or part of a series of Securities issued to
the Depository for such series in accordance with Section 2.03.
HOLDER:
The terms "HOLDER," "HOLDER OF SECURITIES," "SECURITYHOLDER" or other
similar terms, shall mean (a) in the case of any Registered Security, the Person
in whose name at the time such Security is registered on the registration books
kept for that purpose in accordance with the terms hereof, and (b) in the case
of any Unregistered Security, the bearer of such Security.
INDENTURE:
The term "INDENTURE" shall mean this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
INTEREST PAYMENT DATE:
The term "INTEREST PAYMENT DATE" when used with respect to any Security,
means the stated maturity of an installment of interest on such Security.
ISSUE DATE:
The term "ISSUE DATE" shall mean, with respect to Securities of any
tranche, whether evidenced by a Registered Security or an Unregistered Security,
the date such Securities are authenticated pursuant to Section 2.03.
JUDGMENT CURRENCY:
The term "JUDGMENT CURRENCY" shall have the meaning specified in Section
15.09.
MATURITY DATE:
The term "MATURITY DATE" when used with respect to any Security, shall mean
the stated maturity of the Security.
NEW YORK BANKING DAY:
The term "NEW YORK BANKING DAY" shall have the meaning specified in Section
15.09.
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OFFICERS' CERTIFICATE:
The term "OFFICERS' CERTIFICATE" shall mean a certificate signed by the
Chairman of the Board of Directors or the President or any Chief Executive
Officer or any Chief Financial Officer or any Executive Vice President or any
Senior Vice President or any Vice President or any Managing Director or the
Treasurer or the Assistant Treasurer and by the Secretary or any Assistant
Secretary of the Company.
OFFICER:
The term "OFFICER" shall mean the Chairman of the Board of Directors or the
President or any Chief Executive Officer or any Chief Financial Officer or any
Executive Vice President or any Senior Vice President or any Vice President or
any Managing Director or the Treasurer or the Assistant Treasurer or the
Secretary or any Assistant Secretary of the Company.
OPINION OF COUNSEL:
The term "OPINION OF COUNSEL" shall mean an opinion in writing signed by
legal counsel, who may be an employee of or counsel to the Company or any
subsidiary of the Company, which opinion shall be reasonably acceptable to the
Trustee.
ORIGINAL ISSUE DISCOUNT SECURITIES:
The term "ORIGINAL ISSUE DISCOUNT SECURITIES" shall mean any Securities
which are initially sold at a discount from the principal amount thereof and
which provide upon Event of Default for declaration of an amount less than the
principal amount thereof to be due and payable upon acceleration thereof.
OUTSTANDING:
The term "OUTSTANDING" when used with reference to Securities, shall,
subject to the provisions of Section 7.08 and Section 8.04, mean, as of any
particular time, all Securities authenticated and delivered by the Trustee under
this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of which
moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own Paying Agent), provided, that if such Securities are to be redeemed prior to
the Maturity Date thereof, notice of such redemption shall have been given as in
Article Three provided, or provisions satisfactory to the Trustee shall have
been made for giving such notice; and
(c) Securities in lieu of and in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of Article
Two, unless proof satisfactory to the Trustee is presented that any such
Securities are held by bona fide Holders in due course.
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PAYING AGENT:
The term "PAYING AGENT" shall mean initially Deutsche Bank Trust Company
Americas, and subsequently, any other paying agent appointed by the Company from
time to time in respect of the Securities.
PERSON:
The term "PERSON" shall mean any individual, Corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
PLACE OF PAYMENT:
The term "PLACE OF PAYMENT," when used with respect to the Securities of
any series, means the place or places where the principal of (and premium, if
any) and interest, if any, (and Additional Amounts, if any) on the Securities of
that series are payable.
RECORD DATE:
The term "RECORD DATE" shall have the meaning specified in Section 2.04.
REGISTERED SECURITY:
The term "REGISTERED SECURITY" shall mean any Security registered on the
Security registration books of the Company.
REGULAR RECORD DATE:
The term "REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Sections 2.01 and 2.04.
REQUIRED CURRENCY:
The term "REQUIRED CURRENCY" shall have the meaning specified in Section
15.09.
RESPONSIBLE OFFICER:
The term "RESPONSIBLE OFFICER" when used with respect to the Trustee shall
mean any officer assigned by the Trustee to administer its corporate trust
matters.
SECURITIES ACT:
The term "SECURITIES ACT" shall mean the United States Securities Act of
1933, as amended.
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SECURITIES AND SECURITY:
The terms "SECURITIES" and "SECURITY" shall have the respective meanings
specified in the recitals.
SECURITY REGISTER AND SECURITY REGISTRAR:
The term "SECURITY REGISTER" and "SECURITY REGISTRAR" shall have the
respective meanings specified in Section 2.05.
SENIOR INDEBTEDNESS:
The term "SENIOR INDEBTEDNESS" means the principal of, premium, if any, and
unpaid interest on the following, whether outstanding at the date hereof or
thereafter incurred or created: (i) indebtedness of the Company for money
borrowed evidenced by notes or other written obligations; (ii) indebtedness of
the Company evidenced by securities (other than the Securities), debentures,
bonds or other securities issued under the provisions of an indenture or similar
instrument; (iii) obligations of the Company as lessee under capitalized leases
and leases of property made as part of any sale and leaseback transactions; (iv)
indebtedness of others of any of the kinds described in the preceding clauses
(i) through (iii) assumed or guaranteed by the Company; and (v) renewals,
extensions and refundings of, and indebtedness and obligations of a successor
corporation issued in exchange for or in replacement of, indebtedness or
obligations of the kinds described in the preceding clauses (i) through (iv),
unless in the case of any particular indebtedness, obligation, renewal,
extension or refunding the instrument creating or evidencing the same or the
assumption or guarantee thereof expressly provides that such indebtedness,
obligation, renewal, extension or refunding is not superior in right of payment
to the Securities.
TRUSTEE
The term "TRUSTEE" shall have the meaning specified in the preamble.
TRUST INDENTURE ACT:
The term "TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939,
as amended.
UNITED STATES:
The term "UNITED STATES" shall mean the United States of America (including
the States and the District of Columbia) and its possessions (including the
Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands).
UNITED STATES PERSON:
The term "UNITED STATES PERSON" has the meaning given to it by the Internal
Revenue Code of 1986, as amended, and regulations thereunder, including U.S.
Treasury Regulations Section 1.163-5(c)(2)(i)(D).
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UNREGISTERED SECURITY:
The term "UNREGISTERED SECURITY" shall mean any Security other than a
Registered Security.
U.S. DOLLAR:
The term "U.S. DOLLAR" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
Section 1.02. Notice to Securityholders. Except as otherwise expressly
provided herein, where this Indenture provides for notice to Holders of
Securities of any event, such notice shall be sufficiently given if in writing
and mailed, first class, postage prepaid, to each Holder at such Holder's
address as it appears in the Securities Register, not later than the latest
date, and not earlier than the earliest date prescribed for such notice.
Neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Security shall affect the sufficiency of
such notice with respect to other Holders of Securities.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
ARTICLE TWO.
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES.
Section 2.01. Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(1) the designation of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for,
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or in lieu of, other Securities of the series pursuant to Section 2.05,
2.06, 2.07, 3.02 or 10.04 and except for any Securities which, pursuant to
Section 2.03, are deemed never to have been authenticated and delivered
hereunder);
(3) the date or dates on which the principal of the Securities of the
series is payable and the manner of payment of such principal; the rate or
rates, which may be fixed or variable, at which the Securities of the
series shall bear interest, if any, and if the rate or rates are variable,
the manner of calculation thereof, the circumstances (if any) under which
the rate or rates may be adjusted, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such interest
shall be payable, the manner of payment of such interest and, in the case
of Registered Securities, the Regular Record Date for the determination of
Holders of such Securities to whom interest is payable on any Interest
Payment Date;
(4) the place or places (in addition to such place or places specified
in this Indenture) where the principal of (and premium, if any), interest,
if any, and Additional Amounts, if any, on Securities of the series shall
be payable;
(5) the right, if any, of the Company to redeem Securities, in whole
or in part, at its option and the period or periods within which, the price
or prices at which and the terms and conditions upon which Securities of
the series may be redeemed pursuant to any sinking fund or otherwise;
(6) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof
and the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(7) if other than U.S. Dollars, the currency or currencies, or units
based on or related to foreign currencies, in which the Securities of the
series shall be denominated and in which payments of principal of (premium,
if any), interest, if any, on and any other amounts payable with respect to
such Securities shall or may be payable; or in the manner in which such
currency, currencies or composite currencies will be determined; and if the
principal of (and premium, if any) and interest, if any, on the Securities
of such series are to be payable, at the election of the Company or a
holder thereof, in a currency or currencies, including composite
currencies, other than that or those in which the Securities are stated to
be payable, the currency or currencies in which payment of the principal of
(and premium, if any) and interest, if any, on Securities of such series as
to which such election is made shall be payable, and the periods within
which and the terms and conditions upon which such election is to be made;
(8) if the amount of principal of or any premium or interest on the
Securities of the series may be determined with reference to an index based
on a currency or currencies other than that in which the Securities of the
series are denominated, the manner in which such amounts shall be
determined;
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(9) the denominations in which Securities of the series shall be
issuable, if other than U.S. $l,000 or integral multiples thereof with
respect to Registered Securities and denominations of U.S. $1,000 and U.S.
$5,000 for Unregistered Securities;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof or which the Trustee
shall be entitled to claim pursuant to Section 6.02;
(11) whether the Securities of the series will be issuable as
Registered Securities or Unregistered Securities (with or without Coupons),
or both, any restrictions applicable to the offer, sale or delivery of
Unregistered Securities and, if other than as provided for in Section 2.05,
the terms upon which Unregistered Securities of the series may be exchanged
for Registered Securities of such series and vice versa; and whether the
Securities of the series shall be issued in whole or in part in the form of
one or more Global Securities and, in such case, the Depository for such
Global Security or Securities and whether any Global Securities of the
series are to be issuable initially in temporary form and whether any
Global Securities of the series are to be issuable in definitive form with
or without Coupons and, if so, whether beneficial owners of interests in
any such definitive Global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which and the place or places
where any such exchanges may occur, if other than in the manner provided in
Section 2.05;
(12) whether and under what circumstances the Company will pay
Additional Amounts on the Securities of the series held by a Person who is
not a U.S. person in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Company will have the option
to redeem such Securities rather than pay such Additional Amounts;
(13) the provisions, if any, for the defeasance of the Securities of
the series;
(14) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(15) any trustees, depositaries, authenticating or paying agents,
transfer agents, registrars or any other agents with respect to the
Security of such series;
(16) any deletions from, modifications of or additions to the Events
of Default with respect to any of such Securities; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except
(i) as to denomination, (ii) that Securities of any series may be issuable as
either Registered Securities or
10
Unregistered Securities and (iii) as may otherwise be provided in or pursuant to
such Board Resolution and set forth in such Officers' Certificate or in any such
indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or any Assistant Secretary of the Company and
delivered to the Trustee at the same time as or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
Section 2.02. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in the following form:
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Deutsche Bank Trust Company Americas,
as Trustee,
By:
------------------------------------
Authorized Signatory
Section 2.03. Form, Execution, Authentication, Delivery and Dating of
Securities. The Securities of each series and the Coupons, if any, to be
attached thereto, shall be in the forms approved from time to time by or
pursuant to a Board Resolution, or established in one or more indentures
supplemental hereto, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the 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 stock exchange on which the Securities may be
listed, or to conform to usage.
Each Security and Coupon shall be executed on behalf of the Company by its
Chairman of the Board of Directors or any Vice Chairman of the Board of
Directors or its President or any Chief Executive Officer or any Chief Financial
Officer or any Executive Vice President or any Senior Vice President or any Vice
President and by its Treasurer or any Assistant Treasurer or its Secretary or
any Assistant Secretary. Such signatures may be the manual or facsimile
signatures of the present or any future such officers.
Each Security and Coupon 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 Security, or
the Security to which such Coupon appertains. At any time and from time to time
after the execution and delivery of this Indenture, the Company may deliver
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Securities of any series executed by the Company and, in the case of Coupon
Securities, having attached thereto appropriate Coupons, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities. If the form or terms of
the Securities or Coupons of the series have been established in or pursuant to
one or more Board Resolutions as permitted by this Section and Section 2.01, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 7.01) shall be fully protected in
relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities or Coupons has been established by or
pursuant to Board Resolution as permitted by Section 2.01, that such form has
been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or pursuant to
Board Resolution as permitted by Section 2.01, that such terms have been
established in conformity with the provisions of this Indenture; and
(c) that each such Security and Coupon, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
If such form or terms has been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and the Indenture or otherwise in a manner which
is not reasonably acceptable to the Trustee.
Every Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in or pursuant to the
Board Resolution or supplemental indenture referred to in Section 2.01 or, if no
such terms are specified, the date of its original issuance.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been duly authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 2.08 together with a written statement
(which need not comply with Section 15.04 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold by
the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
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If the Company shall establish pursuant to Section 2.01 that the Securities
of a series are to be issued in whole or in part in the form of a Global
Security, then the Company shall execute and the Trustee shall in accordance
with this Section and the Company Order with respect to such series authenticate
and deliver the Global Security that (i) shall represent and shall be
denominated in an aggregate amount equal to the aggregate principal amount of
outstanding Securities of such series to be represented by the Global Security,
(ii) shall be registered, if in registered form, in the name of the Depository
for such Global Security or the nominee of such Depository, and (iii) shall be
delivered by the Trustee to such Depository or pursuant to such Depository's
instructions.
Each Depository designated pursuant to Section 2.01 for a Global Security
in registered form must, at the time of its designation and at all times while
it serves as Depository, be a clearing agency registered under the Exchange Act
and any other applicable statute or regulation.
Section 2.04. Denominations; Record Date. The Securities shall be issuable
as Registered Securities or Unregistered Securities in such denominations as may
be specified as contemplated in Section 2.01. In the absence of any such
specification with respect to any series, such Securities shall be issuable in
the denominations contemplated by Section 2.01.
The term "RECORD DATE" as used with respect to an Interest Payment Date
(except a date for payment of defaulted interest) shall mean such day or days as
shall be specified in the terms of the Registered Securities of any particular
series as contemplated by Section 2.01; provided, however, that in the absence
of any such provisions with respect to any series, such term shall mean (1) the
last day of the calendar month next preceding such Interest Payment Date if such
Interest Payment Date is the fifteenth day of a calendar month; or (2) the
fifteenth day of a calendar month next preceding such Interest Payment Date if
such Interest Payment Date is the first day of the calendar month.
The Person in whose name any Registered Security is registered at the close
of business on the Regular Record Date with respect to an Interest Payment Date
shall be entitled to receive the interest payable and Additional Amounts, if
any, payable on such Interest Payment Date notwithstanding the cancellation of
such Registered Security upon any transfer or exchange thereof subsequent to
such Regular Record Date and prior to such Interest Payment Date; provided,
however, that if and to the extent the Company shall default in the payment of
the interest and Additional Amounts, if any, due on such Interest Payment Date,
such defaulted interest and Additional Amounts, if any, shall be paid to the
Persons in whose names outstanding Registered Securities are registered on a
subsequent Record Date established by notice given by mail by or on behalf of
the Company to the Holders of Securities of the series in default not less than
fifteen days preceding such subsequent Record Date, such Record Date to be not
less than five days preceding the date of payment of such defaulted interest.
Section 2.05. Exchange and Registration of Transfer of Securities.
Registered Securities of any series may be exchanged for a like aggregate
principal amount of Registered Securities of other authorized denominations of
such series. Registered Securities to be exchanged shall be surrendered at the
office or agency to be designated and maintained by the Company for such purpose
in the Borough of Manhattan, The City of New York, in accordance with the
provisions of Section 4.02, and the Company shall execute and register and the
Trustee shall authenticate
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and deliver in exchange therefor the Registered Security or Registered
Securities which the Holder making the exchange shall be entitled to receive.
If the Securities of any series are issued in both registered and
unregistered form, except as otherwise specified pursuant to Section 2.01, at
the option of the Holder thereof, Unregistered Securities of any series may be
exchanged for Registered Securities of such series of any authorized
denominations and of a like aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Company that shall
be maintained for such purpose in accordance with Section 4.02, with, in the
case of Unregistered Securities that are Coupon Securities, all unmatured
Coupons and all matured Coupons in default thereto appertaining. At the option
of the Holder thereof, if Unregistered Securities of any series are issued in
more than one authorized denomination, except as otherwise specified pursuant to
Section 2.01, such Unregistered Securities may be exchanged for Unregistered
Securities of such series of other authorized denominations and of a like
aggregate principal amount, upon surrender of such Unregistered Securities to be
exchanged at the agency of the Company that shall be maintained for such purpose
in accordance with Section 4.02 or as specified pursuant to Section 2.01, with,
in the case of Unregistered Securities that are Coupon Securities, all unmatured
Coupons and all matured Coupons in default thereto appertaining. Unless
otherwise specified pursuant to Section 2.01, Registered Securities of any
series may not be exchanged for Unregistered Securities of such series. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
The Company (or its designated agent (the "SECURITY REGISTRAR")) shall
keep, at such office or agency, a Security Register (the "SECURITY REGISTER") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall register Securities and shall register the transfer of Registered
Securities as in this Article Two provided. The Security Register shall be in
written form or in any other form capable of being converted into written form
within a reasonable time. At all reasonable times the Security Register shall be
open for inspection by the Trustee. Upon due presentment for registration of
transfer of any Registered Security of a particular series at such office or
agency, the Company shall execute and the Company or the Security Registrar
shall register and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Registered Security or Registered Securities of
such series for an equal aggregate principal amount.
Unregistered Securities (except for any temporary bearer Securities) and
Coupons shall be transferable by delivery.
All Securities presented for registration of transfer or for exchange,
redemption or payment, as the case may be, shall (if so required by the Company
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Registered Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith.
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The Company shall not be required to exchange or register a transfer of (a)
any Registered Securities of any series for a period of fifteen days next
preceding any selection of such Registered Securities of such series to be
redeemed, or (b) any Security of any such series selected for redemption except
in the case of any such series to be redeemed in part, the portion thereof not
to be so redeemed.
Notwithstanding anything herein or in the terms of any series of Securities
to the contrary, neither the Company nor the Trustee (which shall rely on an
Officers' Certificate and an Opinion of Counsel) shall be required to exchange
any Unregistered Security for a Registered Security if such exchange would
result in adverse Federal income tax consequences to the Company (including the
inability of the Company to deduct from its income, as computed for Federal
income tax purposes, the interest payable on any Securities) under then
applicable United States Federal income tax laws.
Section 2.06. Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute and upon receipt of a Company
Order the Trustee shall authenticate and deliver temporary Securities of such
series (printed or lithographed). Temporary Securities of any series shall be
issuable in any authorized denominations, and in the form approved from time to
time by or pursuant to a Board Resolution but with such omissions, insertions
and variations as may be appropriate for temporary Securities, all as may be
determined by the Company. Every temporary Security shall be executed by the
Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unnecessary delay the Company shall execute and shall
furnish definitive Securities of such series and thereupon any or all temporary
Registered Securities of such series may be surrendered in exchange therefor
without charge at the office or agency to be designated and maintained by the
Company for such purpose in the Borough of Manhattan, The City of New York, in
accordance with the provisions of Section 4.02 and in the case of Unregistered
Securities at any agency maintained by the Company for such purpose as specified
pursuant to Section 2.01, and the Trustee shall authenticate and deliver in
exchange for such temporary Securities an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and in the
case of such Securities that are Coupon Securities, having attached thereto the
appropriate Coupons. Until so exchanged the temporary Securities of any series
shall be entitled to the same benefits under this Indenture as definitive
Securities of such series. The provisions of this Section 2.06 are subject to
any restrictions or limitations on the issue and delivery of temporary
Unregistered Securities of any series that may be established pursuant to
Section 2.01 (including any provision that Unregistered Securities of such
series initially be issued in the form of a single global Unregistered Security
to be delivered to a depositary or agency of the Company located outside the
United States and the procedures pursuant to which definitive Unregistered
Securities of such series would be issued in exchange for such temporary global
Unregistered Security).
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities. In case any
temporary or definitive Security of any series or, in the case of a Coupon
Security, any Coupon appertaining thereto, shall become mutilated or be
destroyed, lost or stolen, the Company in the case of a mutilated Security or
Coupon shall, and in the case of a lost, stolen or destroyed Security or Coupon
may, in its discretion, execute, and upon receipt of a Company Order the Trustee
shall authenticate and deliver, a new Security of the same series as the
mutilated, destroyed, lost or
15
stolen Security or, in the case of a Coupon Security, a new Coupon Security of
the same series as the mutilated, destroyed, lost or stolen Coupon Security or,
in the case of a Coupon, a new Coupon Security of the same series as the Coupon
Security to which such mutilated, destroyed, lost or stolen Coupon appertains,
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated Security, or in lieu of and in substitution for the Security
so destroyed, lost or stolen or in exchange for the Coupon Security to which
such mutilated, destroyed, lost or stolen Coupon appertains, with all
appurtenant Coupons not destroyed, lost or stolen. In every case the applicant
for a substituted Security or Coupon shall furnish to the Company and to the
Trustee such security or indemnity as may be required by them to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security or Coupon, as
the case may be, and of the ownership thereof. The Trustee may authenticate any
such substituted Security and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any
substituted Security or Coupon, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses connected therewith and in addition a
further sum not exceeding ten dollars for each Security so issued in
substitution. In case any Security or Coupon which has matured or is about to
mature shall become mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substituted Security, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated Security or
Coupon) if the applicant for such payment shall furnish the Company and the
Trustee with such security or indemnity as they may require to save them
harmless and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft of
such Security or Coupon and of the ownership thereof.
Every substituted Security with, in the case of any such Security that is a
Coupon Security, its Coupons, issued pursuant to the provisions of this Section
by virtue of the fact that any Security or Coupon is destroyed, lost or stolen
shall, with respect to such Security or Coupon, constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security or Coupon shall be found at any time, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities, and the Coupons appertaining thereto, duly issued hereunder.
All Securities and any Coupons appertaining thereto shall be held and owned
upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities and Coupons appertaining thereto and shall, to the extent permitted
by law, preclude any and all other rights or remedies, notwithstanding any law
or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
Section 2.08. Cancellation. All Securities surrendered for payment,
redemption, exchange or registration of transfer, and all Coupons surrendered
for payment as the case may be, shall, if surrendered to the Company or any
agent of the Company or of the Trustee, be delivered to the Trustee and promptly
cancelled by it or, if surrendered to the Trustee, be cancelled by it, and no
Securities or Coupons shall be issued in lieu thereof except as expressly
16
permitted by any of the provisions of this Indenture. The Trustee shall destroy
cancelled Securities and Coupons and deliver a certificate of destruction to the
Company.
Section 2.09. Computation of Interest. Except as otherwise specified as
contemplated by Section 2.01 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
Section 2.10. Securities in Global Form. If Securities of a series are
issuable in global form, as specified as contemplated by Section 2.01, then,
notwithstanding clause (9) of Section 2.01 and the provisions of Section 2.04,
such Security shall represent such of the outstanding Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of outstanding Securities from time to time endorsed thereon
and that the aggregate amount of outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or decrease in the amount,
of outstanding Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 2.03 or Section 2.06. Subject to the provisions of Section
2.03 and, if applicable, Section 2.06, the Trustee shall deliver and redeliver
any Security in definitive global bearer form in the manner and upon written
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 2.03 or 2.06
has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 15.04 and need not be
accompanied by an Opinion of Counsel. The beneficial owner of a Security
represented by a definitive Global Security in bearer form may, upon no less
than 30 days written notice to the Trustee, given by the beneficial owner
through a Depository, exchange its interest in such definitive Global Security
for a definitive Unregistered Security or Securities, or a definitive Registered
Security or Securities, of any authorized denomination, subject to the rules and
regulations of such Depository and its members. No individual definitive
Unregistered Security will be delivered within the United States nor to any
United States person (except as permitted under Treas. Reg. Section
1.163-5(c)(2)(i)(D)(3)).
The provisions of the last sentence of the third to the last paragraph of
Section 2.03 shall apply to any Security represented by a Security in global
form if such Security was never issued and sold by the Company and the Company
delivers to the Trustee the Security in global form together with written
instructions (which need not comply with Section 15.04 and need not be
accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of the third to the last paragraph
of Section 2.03.
Unless otherwise specified as contemplated by Section 2.01, payment of
principal of and any premium and any interest on any Security in definitive
global form shall be made to the Person or Persons specified therein.
Section 2.11. Medium-Term Securities. Notwithstanding any contrary
provision herein, if all Securities of a series are not to be originally issued
at one time, it shall not be necessary to deliver the Company Order, Officers'
Certificate, supplemental indenture or Opinion of Counsel
17
otherwise required pursuant to Sections 2.01, 2.03, 2.06 and 15.04 at or prior
to the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued.
An Officers' Certificate or supplemental indenture, delivered pursuant to
this Section 2.11 in the circumstances set forth in the preceding paragraph may
provide that Securities which are the subject thereof will be authenticated and
delivered by the Trustee on original issue from time to time upon the written
order of Persons designated in such Officers' Certificate or supplemental
indenture and that such Persons are authorized to determine, consistent with
such Officers' Certificate or any applicable supplemental indenture such terms
and conditions of said Securities as are specified in such Officers' Certificate
or supplemental indenture, provided that the foregoing procedure is acceptable
to the Trustee.
ARTICLE THREE.
REDEMPTION OF SECURITIES.
Section 3.01. Redemption of Securities; Applicability of Article.
Redemption of Securities of any series as permitted or required by the terms
thereof shall be made in accordance with such terms and this Article; provided,
however, that if any provision of any series of Securities shall conflict with
any provision of this Article, the provision of such series of Securities shall
govern.
The notice date for a redemption of Securities shall mean the date on which
notice of such redemption is given in accordance with the provisions of Section
3.02 hereof.
Section 3.02. Notice of Redemption; Selection of Securities. The election
of the Company to redeem any Securities shall be evidenced by an Officers'
Certificate. In case the Company shall desire to exercise the right to redeem
all, or, as the case may be, any part of a series of Securities pursuant to the
terms and provisions applicable to such series, it shall fix a date for
redemption and shall mail a notice of such redemption at least thirty and not
more than sixty days prior to the date fixed for redemption to the Holders of
the Securities of such series which are Registered Securities to be redeemed as
a whole or in part at their last addresses as the same appear on the Security
Register. Such mailing shall be by prepaid first class mail. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder shall have received such notice. In any
case, failure to give notice by mail, or any defect in the notice to the Holder
of any Security of a series designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the redemption of any other
Security of such series.
Notice of redemption to the Holders of Unregistered Securities to be
redeemed as a whole or in part, who have filed their names and addresses with
the Trustee as described in Section 5.02(a)(iii), shall be given by mailing
notice of such redemption, by first class mail, postage prepaid, at least thirty
days and not more than sixty days prior to the date fixed for redemption, to
such Holders at such addresses as were so furnished to the Trustee (and, in the
case of any such notice given by the Company, the Trustee shall make such
information available to the Company for such purpose). Notice of redemption to
any other Holder of an Unregistered Security of such series shall be published
in an Authorized Newspaper in the Borough of Manhattan, The City of
18
New York and in an Authorized Newspaper in London (and, if required by Section
4.04, in an Authorized Newspaper in Luxembourg), in each case, once in each of
two successive calendar weeks, the first publication to be not less than thirty
nor more than sixty days prior to the date fixed for redemption. Any notice
which is mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the Holder shall have received such notice.
In any case, failure to give notice by mail, or any defect in the notice to the
Holder of any Security of a series designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Security of such series.
Each such notice of redemption shall specify the provisions of such
Securities under which such redemption is made, that the conditions precedent,
if any, to such redemption have occurred, shall describe the same and the date
fixed for redemption, the redemption price at which such Securities are to be
redeemed, the Place of Payment, that payment will be made upon presentation and
surrender of such Securities and, in the case of Coupon Securities, of all
Coupons appertaining thereto maturing after the date fixed for redemption, that
interest and Additional Amounts, if any, accrued to the date fixed for
redemption will be paid as specified in said notice, and that on and after said
date interest, if any, thereon or on the portions thereof to be redeemed will
cease to accrue. If less than all of the Securities of a series are to be
redeemed any notice of redemption published in an Authorized Newspaper shall
specify the numbers of the Securities to be redeemed. In case any Security is to
be redeemed in part only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that upon surrender
of such Security, a new Security or Securities in principal amount equal to the
unredeemed portion thereof will be issued of the same series.
At least one Business Day prior to the redemption date specified in the
notice of redemption given for Unregistered Securities as provided in this
Section and on or prior to the redemption date specified in the notice of
redemption given for all Securities other than Unregistered Securities, the
Company will deposit in trust with the Trustee or with one or more paying agents
an amount of money sufficient to redeem on the redemption date all the
Securities or portions of Securities so called for redemption at the appropriate
redemption price, together with accrued interest, if any, to the date fixed for
redemption. The Company will give the Trustee notice of each redemption at least
forty-five days prior to the date fixed for redemption (unless a shorter notice
is acceptable to the Trustee) as to the aggregate principal amount of Securities
to be redeemed.
If less than all of the Securities of a series are to be redeemed, the
Trustee shall select, pro rata or by lot or in such other manner as it shall
deem reasonable and fair, the numbers of the Securities to be redeemed in whole
or in part.
Section 3.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities with respect to which such notice has been given shall become due and
payable on the date and at the Place of Payment stated in such notice at the
applicable redemption price, together with interest, if any (and Additional
Amounts, if any), accrued to the date fixed for redemption, and on and after
said date (unless the Company shall default in the payment of such Securities at
the redemption price, together with interest, if any, and Additional Amounts, if
any, accrued to said date) interest on the Securities or portions of Securities
so called for redemption shall cease to accrue. On
19
presentation and surrender of such Securities subject to redemption at said
Place of Payment in said notice specified, the said Securities or the specified
portions thereof shall be paid and redeemed by the Company at the applicable
redemption price, together with interest, if any, and Additional Amounts, if
any, accrued thereon to the date fixed for redemption. Interest, if any (and
Additional Amounts, if any), maturing on or prior to the date fixed for
redemption shall continue to be payable (but without interest thereon unless the
Company shall default in payment thereof) in the case of Coupon Securities to
the bearers of the Coupons for such interest upon surrender thereof, and in the
case of Registered Securities to the Holders thereof registered as such on the
Security Register on the relevant record date subject to the terms and
provisions of Section 2.04. At the option of the Company payment may be made by
check to (or to the order of) the Holders of the Securities or other Persons
entitled thereto against presentation and surrender of such Securities.
If any Coupon Security surrendered for redemption shall not be accompanied
by all appurtenant Coupons maturing after the date fixed for redemption, the
surrender of such missing Coupon or Coupons may be waived by the Company and the
Trustee, if there be furnished to each of them such security or indemnity as
they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder thereof, at
the expense of the Company, a new Security or Securities, of authorized
denominations, in aggregate principal amount equal to the unredeemed portion of
the Security so presented of the same series.
ARTICLE FOUR.
PARTICULAR COVENANTS OF THE COMPANY.
Section 4.01. Payment of Principal, Premium, Interest and Additional
Amounts. The Company will duly and punctually pay or cause to be paid the
principal of (and premium, if any), interest, if any, and Additional Amounts, if
any, on each of the Securities at the place, at the respective times and in the
manner provided in the terms of the Securities and in this Indenture. The
interest on Coupon Securities (together with any Additional Amounts) shall be
payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. The
interest, if any, on any temporary bearer Securities (together with any
Additional Amounts) shall be paid, as to the installments of interest evidenced
by Coupons attached thereto, if any, only upon presentation and surrender
thereof, and, as to the other installments of interest, if any, only upon
presentation of such Securities for notation thereon of the payment of such
interest. The interest on Registered Securities (together with any Additional
Amounts) shall be payable only to the Holders thereof and at the option of the
Company may be paid by mailing checks for such interest payable to or upon the
order of such Holders at their last addresses as they appear on the Security
Register for such Securities unless otherwise specified in the terms of the
Securities of the series as contemplated by Section 2.01.
Section 4.02. Offices for Notices and Payments, etc. As long as any of the
Securities of a series remain outstanding, the Company will designate and
maintain, in the Borough of Manhattan, The City of New York, an office or agency
where the Registered Securities of such series may be presented for registration
of transfer and for exchange as in this Indenture
20
provided, an office or agency where notices and demands to or upon the Company
in respect of the Securities of such series or of this Indenture may be served,
and an office or agency where the Securities of such series may be presented for
payment. The Company will give to the Trustee notice of the location of each
such office or agency and of any change in the location thereof. In case the
Company shall fail to maintain any such office or agency in the Borough of
Manhattan, The City of New York, or shall fail to give such notice of the
location or of any change in the location thereof, presentations may be made and
notices and demands may be served at the corporate trust office of the Trustee
in the Borough of Manhattan, The City of New York, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, notices and
demands.
If Unregistered Securities of any series are outstanding, the Company will
maintain or cause the Trustee to maintain one or more agencies in a city or
cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on
which the Securities of such series are listed) where such Unregistered
Securities, and Coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or Coupon will be made upon
presentation of such Unregistered Security or Coupon at an agency of the Company
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States, except, at the option of the
Company, if the Company shall have determined that, pursuant to applicable
United States laws and regulations then in effect such payment can be made
without adverse tax consequences to the Company. Notwithstanding the foregoing,
payments in U.S. Dollars with respect to Unregistered Securities of any series
and Coupons appertaining thereto which are payable in U.S. Dollars may be made
at an agency of the Company maintained in the Borough of Manhattan, The City of
New York if such payment in U.S. Dollars at each agency maintained by the
Company outside the United States for payment on such Unregistered Securities is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company hereby initially designates Deutsche Bank Trust Company
Americas, located at its Corporate Trust Office as the Security Registrar and as
the office or agency of the Company in the Borough of Manhattan, The City of New
York, where the Securities may be presented for payment and, in the case of
Registered Securities, for registration of transfer and for exchange as in this
Indenture provided and where notices and demands to or upon the Company in
respect of the Securities of any series or of this Indenture may be served.
Section 4.03. Provisions as to Paying Agent. (a) Whenever the Company shall
appoint a paying agent other than the Trustee with respect to the Securities of
any series, it will cause such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section:
(1) that it will hold sums held by it as such agent for the payment of
the principal of (and premium, if any), interest, if any, or Additional
Amounts, if any, on the Securities of such series in trust for the benefit
of the Holders of the Securities of such series, or Coupons appertaining
thereto, as the case may be, entitled thereto and will notify the Trustee
of the receipt of sums to be so held,
21
(2) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Securities of such series) to make any
payment of the principal of (or premium, if any), interest, if any, or
Additional Amounts, if any, on the Securities of such series when the same
shall be due and payable, and
(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.
(b) If the Company shall act as its own paying agent, it will, on or before
each due date of the principal of (and premium, if any), interest, if any, or
Additional Amounts, if any, on the Securities of any series set aside, segregate
and hold in trust for the benefit of the Holders of the Securities of such
series entitled thereto a sum sufficient to pay such principal (and premium if
any), interest, if any, or Additional Amounts, if any, so becoming due. The
Company will promptly notify the Trustee of any failure to take such action.
(c) Anything in this Section to the contrary notwithstanding, the Company
may, at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for such
series by it or any paying agent hereunder as required by this Section, such
sums to be held by the Trustee upon the trusts herein contained.
(d) Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section is subject to the provisions
of Sections 12.03 and 12.04.
Section 4.04. Luxembourg Publications. In the event of the publication of
any notice pursuant to Section 3.02, 6.07, 7.10, 7.11, 9.02, 10.02 or 12.05, the
party making such publication shall also, to the extent that notice is required
so to be given to Holders of Securities of any series by applicable Luxembourg
law or stock exchange regulation, make a similar publication the same number of
times in Luxembourg.
Section 4.05. Statement by Officers as to Default. (a) 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 of execution hereof,
ends on December 31) ending after the date hereof, commencing with the fiscal
year ended 2005, but in no event less than once every twelve months, a brief
certificate of the Company's principal executive officer, principal financial
officer or principal accounting officer as to such officer's knowledge of the
Company's compliance with all conditions and covenants under this Indenture
(such compliance to be determined without regard to any period of grace or
requirement of notice provided under this Indenture).
(b) Promptly after any Officer has knowledge of a default hereunder, the
Company will deliver to the Trustee a written notice specifying the nature and
period of existence thereof and the action the Company is taking and proposes to
take with respect thereto.
Section 4.06. Existence. Subject to Article Eleven, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required
22
to preserve any rights or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not disadvantageous in any
material respect to the Securityholders.
ARTICLE FIVE.
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.
Section 5.01. Securityholder Lists. The Company covenants and agrees that
it will furnish or cause to be furnished to the Trustee with respect to the
Securities of each series:
(a) semiannually, not later than each Interest Payment Date (in the case of
any series having semiannual Interest Payment Dates) or not later than the dates
determined pursuant to Section 2.01 (in the case of any series not having
semiannual Interest Payment Dates) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities of
such series as of the Regular Record Date (or as of such other date as may be
determined pursuant to Section 2.01 for such series) therefor, and
(b) at such other times as the Trustee may request in writing, within
thirty days after receipt by the Company of any such request, a list in such
form as the Trustee may reasonably require of the names and addresses of the
Holders of Securities of a particular series specified by the Trustee as of a
date not more than fifteen days prior to the time such information is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar any such list shall exclude names and addresses received by the
Trustee in its capacity as Security Registrar, and if and so long as all of the
Securities of any series are Registered Securities, such list shall not be
required to be furnished.
Section 5.02. Preservation and Disclosure of Lists. (a) The Trustee shall
preserve, in as current a form as is reasonably practicable, all information as
to the names and addresses of the Holders of each series of Securities (i)
contained in the most recent list furnished to it as provided in Section 5.01,
(ii) received by the Trustee in its capacity as Security Registrar or a Paying
Agent, or (iii) that have filed their names and addresses with the Trustee
within the preceding two years. The Trustee may destroy any list furnished to it
as provided in Section 5.01 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities (hereinafter referred to as
"APPLICANTS") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security of such series
for a period of at least six months preceding the date of such application, and
such application states that the Applicants' desire to communicate with other
Holders of Securities of a particular series (in which case the Applicants must
hold Securities of such series) or with Holders of all Securities with respect
to their rights under this Indenture or under such Securities and it is
accompanied by a copy of the form of proxy or other communication which such
Applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either:
(1) afford to such Applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Section, or
23
(2) inform such Applicants as to the approximate number of Holders of
Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this
Section, and as to the approximate cost of mailing to such Securityholders
the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford to such Applicants access to such
information, the Trustee shall, upon the written request of such Applicants,
mail to each Holder of such series or all Securities, as the case may be, whose
name and address appear in the information preserved at the time by the Trustee
in accordance with the provisions of subsection (a) of this Section a copy of
the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five Business Days after such tender, the Trustee
shall mail to such Applicants and file with the Securities and Exchange
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of such series or
all Securities, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If said
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, said Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met, and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such Applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of the Company or of the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with the provisions of subsection (b)
of this Section, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under said subsection (b).
Section 5.03. Reports by the Company. The Company covenants:
(a) to file with the Trustee within fifteen days after the Company is
required to file the same with the Securities and Exchange Commission, copies of
the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as said Commission may from time
to time by rules and regulations prescribe) which the Company may be required to
file with said Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file information, documents
or reports pursuant to either of such sections, then to file with the Trustee
and said Commission, in accordance with rules and regulations prescribed from
time to time by said Commission, such of the supplementary and periodic
information, documents and reports which may be required
24
pursuant to Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) to file with the Trustee and the Securities and Exchange Commission, in
accordance with the rules and regulations prescribed from time to time by said
Commission, such additional information, documents, and reports with respect to
compliance by the Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and regulations;
(c) to transmit by mail to all the Holders of Securities of each series, as
the names and addresses of such Holders appear on the Security Register, within
thirty days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company with
respect to each such series pursuant to subsections (a) and (b) of this Section
as may be required by rules and regulations prescribed from time to time by the
Securities and Exchange Commission; and
(d) If Unregistered Securities of any series are outstanding, to file with
the listing agent of the Company with respect to such series such documents and
reports of the Company as may be required from time to time by the rules and
regulations of any stock exchange on which such Unregistered Securities are
listed.
Section 5.04. Reports by the Trustee. (a) On or before a date not more than
four months after the end of each fiscal year of the Company (which, on the date
of execution hereof, ends on December 31) ending after the date hereof,
commencing with the fiscal year December 31, 2005, but in no event less than
once every twelve months, so long as any Securities of any series are
outstanding hereunder, the Trustee shall transmit to the Holders of any
Securities of such series (including any Holder that has filed their names and
addresses with the Trustee pursuant to Section 5.02(a)(iii)), in the manner
provided by Section 313(c) of the Trust Indenture Act, a brief report dated as
of such reporting date as may be required by Section 313(a) of the Trust
Indenture Act. The Trustee shall also, to the extent applicable, provide such
Persons, in the manner provided by Section 313(c) of the Trust Indenture Act,
the reports required by Section 313(b) of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such transmission to
Holder of Securities of a particular series, be filed by the Trustee with each
stock exchange upon which the Securities of such series are listed and also with
the Securities and Exchange Commission. The Company agrees to notify the Trustee
when and as the Securities of any series become listed on any stock exchange.
ARTICLE SIX.
REMEDIES ON DEFAULT.
Section 6.01. Events of Default. In case one or more of the following
Events of Default with respect to a particular series of Securities shall have
occurred and be continuing, that is to say:
25
(a) default in the payment of the principal of (or premium, if any, on) any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise;
(b) default in the payment of any installment of interest, if any, or in
the payment of any Additional Amounts upon any of the Securities of such series
as and when the same shall become due and payable, and continuance of such
default for a period of thirty days;
(c) failure on the part of the Company duly to observe or perform any of
the covenants or agreements described in Article Eleven for a period of thirty
days after the date on which written notice of such failure, requiring the
Company to remedy the same, shall have been given to the Company by the Trustee,
or to the Company and the Trustee by the Holders of at least twenty-five percent
in aggregate principal amount of the Securities of such series at the time
outstanding;
(d) failure on the part of the Company duly to observe or perform any other
of the covenants or agreements on the part of the Company, applicable to such
series of the Securities or contained in this Indenture (other than the
covenants described in clauses (a), (b) and (c)) for a period of ninety days
after the date on which written notice of such failure, requiring the Company to
remedy the same, shall have been given to the Company by the Trustee, or to the
Company and the Trustee by the Holders of at least twenty-five percent in
aggregate principal amount of the Securities of such series at the time
outstanding;
(e) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect, 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 or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Company or for any substantial part of its
property, or ordering the winding-up or liquidation of its affairs, shall have
been entered and such decree or order shall remain unstayed and in effect for a
period of ninety (90) days; or
(f) the Company shall commence a voluntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law now or hereafter in effect or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or shall consent to the entry of a decree
or order for relief in an involuntary case or proceeding against the Company, or
the filing by the Company of a petition or answer to consent seeking
reorganization or relief under any such applicable federal or state law, or the
consent by the Company to the filing of such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee, trustee,
custodian, sequestrator (or similar official) of the Company or of any
substantial part of its property, or the making by the Company of any general
assignment for the benefit of creditors, or the taking of action by the Company
in furtherance of any such action,
then if an Event of Default (other than as described in clause (e) or (f)) shall
have occurred and be continuing, and in each and every such case, unless the
principal amount of all the Securities
26
of such series shall have already become due and payable, either the Trustee or
the Holders of not less than twenty-five percent in aggregate principal amount
of the Securities of all series affected thereby then outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by Holders of such
Securities) may declare the principal amount of all the Securities (or, with
respect to Original Issue Discount Securities, such lesser amount as may be
specified in the terms of such Securities) of the series affected thereby to be
due and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable, any provision of this Indenture or the
Securities of such series contained to the contrary notwithstanding; and if an
Event of Default described in clause (e) or (f) shall have occurred and be
continuing, the principal of all the Securities not already due and payable (or,
with respect to Original Issue Discount Securities, such lesser amount as may be
specified in the terms of such Securities) shall become due and payable
immediately without any declaration or other act on part of the Trustee or any
Securityholder, any provision of this Indenture or the Securities of such series
contained to the contrary notwithstanding. The foregoing provisions, however,
are subject to the conditions that if, at any time after the principal of the
Securities of any one or more or all series, as the case may be, shall have been
so declared due and payable, and before any judgment or decree for the payment
of the moneys due shall have been obtained or entered as hereinafter provided,
the Company shall pay or shall deposit with the Trustee a sum sufficient to pay
all matured installments of interest, if any, and all Additional Amounts, if
any, due upon all the Securities of such series or of all the Securities, as the
case may be, and the principal of (and premium, if any, on) all Securities of
such series or of all the Securities, as the case may be (or, with respect to
Original Issue Discount Securities, such lesser amount as may be specified in
the terms of such Securities), which shall have become due otherwise than by
acceleration (with interest, if any, upon such principal and premium, if any,
and, to the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest and Additional Amounts, if any, at the
same rate as the rate of interest specified in the Securities of such series, as
the case may be (or, with respect to Original Issue Discount Securities at the
rate specified in the terms of such Securities for interest on overdue principal
thereof upon maturity, redemption or acceleration of such series, as the case
may be), to the date of such payment or deposit), and such amount as shall be
payable to the Trustee pursuant to Section 7.06, and any and all defaults under
the Indenture shall have been remedied, then and in every such case the Holders
of a majority in aggregate principal amount of the Securities of such series (or
of all the Securities, as the case may be) then outstanding, by written notice
to the Company and to the Trustee, may waive all defaults with respect to that
series or with respect to all Securities, as the case may be and rescind and
annul such declaration and its consequences; but no such waiver or rescission
and annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon. If the principal of all Securities shall
have been declared to be payable pursuant to this Section 6.01, in determining
whether the Holders of a majority in aggregate principal amount thereof have
waived all defaults and rescinded and annulled such declaration, all series of
Securities shall be treated as a single class and the principal amount of
Original Issue Discount Securities shall be deemed to be the amount declared
payable under the terms applicable to such Original Issue Discount Securities.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such recession and annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company,
Trustee and the Holders of Securities, as the case may be,
27
shall be restored respectively to their former positions and rights hereunder,
and all rights, remedies and powers of the Company, the Trustee and the Holders
of Securities, as the case may be, shall continue as though no such proceedings
had been taken.
Section 6.02. Payment of Securities on Default; Suit Therefor. The Company
covenants that (1) in case default shall be made in the payment of any
installment of interest, if any, on any of the Securities of any series or any
Additional Amounts payable in respect of any of the Securities of any series, as
and when the same shall become due and payable, and such default shall have
continued for a period of thirty days or (2) in case default shall be made in
the payment of the principal of (or premium, if any, on) any of the Securities
of any series, as and when the same shall have become due and payable, whether
upon maturity of such series or upon redemption or upon declaration or
otherwise, then upon demand of the Trustee, the Company will pay to the Trustee,
for the benefit of the Holders of the Securities of such series, and the
Coupons, if any, appertaining to such Securities, the whole amount that then
shall have become due and payable on all such Securities of such series and such
Coupons, for principal (and premium, if any) or interest, if any, or Additional
Amounts, if any, as the case may be, with interest upon the overdue principal
(and premium, if any) and (to the extent that payment of such interest is
enforceable under applicable law) upon overdue installments of interest, if any,
and Additional Amounts, if any, at the same rate as the rate of interest
specified in the Securities of such series (or, with respect to Original Issue
Discount Securities, at the rate specified in the terms of such Securities for
interest on overdue principal thereof upon maturity, redemption or
acceleration); and, in addition thereto, such further amounts as shall be
payable pursuant to Section 7.06.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Company or other obligor upon such Securities wherever situated the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor upon Securities of any series
under Title 11 of the United States Code or any other applicable law, or in case
a receiver or trustee shall have been appointed for the property of the Company
or such other obligor, or in case of any other judicial proceedings relative to
the Company or such other obligor, or to the creditors or property of the
Company or such other obligor, the Trustee, irrespective of whether the
principal of the Securities of such series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section,
shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of principal
(or, with respect to Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series), and premium,
if any, interest, if any, and Additional Amounts, if any, owing and unpaid in
respect of the Securities of such series, and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee under Section 7.06 and of the Holders of the Securities and Coupons of
such series
28
allowed in any such judicial proceedings relative to the Company or other
obligor upon the Securities of such series, or to the creditors or property of
the Company or such other obligor, and to collect and receive any moneys or
other property payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders of such
series and of the Trustee on their behalf; and any receiver, assignee or trustee
in bankruptcy or reorganization is hereby authorized by each of the Holders of
the Securities and Coupons of such series to make payments to the Trustee and,
in the event that the Trustee shall consent to the making of payments directly
to the Securityholders of such series, to pay to the Trustee such amount as
shall be sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other reasonable expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities, may be enforced by the Trustee without the possession of
any of the Securities or Coupons appertaining to such Securities, or the
production thereof on any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own
name and as trustee of an express trust, and any recovery of judgment shall be
for the ratable benefit of the Holders of the Securities or Coupons appertaining
thereto.
In case of a default hereunder the Trustee may in its discretion proceed to
protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Section 6.03. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 6.02 shall, subject to the
subordination provisions hereof, be applied in the order following, at the date
or dates fixed by the Trustee and, in case of the distribution of such moneys on
account of principal (or premium, if any) or interest, if any, upon presentation
of the several Securities and Coupons in respect of which moneys have been
collected, and stamping thereon the payment, if only partially paid, and upon
surrender thereof, if fully paid:
FIRST: To the payment of the amounts payable to the Trustee pursuant to
Section 7.06;
SECOND: In case the principal of the Securities in respect of which moneys
have been collected shall not have become due, to the payment of interest, if
any, and Additional Amounts, if any, on the Securities of such series in the
order of the maturity of the installments of such interest, with interest (to
the extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at the same rate as the rate of interest, if
any, and Additional Amounts, if any, specified in the Securities of such series
(or, with respect to Original Issue
29
Discount Securities, at the rate specified in the terms of such Securities for
interest on overdue principal thereof upon maturity, redemption or
acceleration), such payments to be made ratably to the Persons entitled thereto,
without discrimination or preference;
THIRD: In case the principal of the Securities in respect of which moneys
have been collected shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon the Securities of such
series for principal (and premium, if any), interest, if any, and Additional
Amounts, if any, and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest, if any, and Additional Amounts,
if any, at the same rate as the rate of interest specified in the Securities of
such series (or, with respect to Original Issue Discount Securities, at the rate
specified in the terms of such Securities for interest on overdue principal
thereof upon maturity, redemption or acceleration); and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal (and premium,
if any), interest, if any, and Additional Amounts, if any, without preference or
priority of principal (and premium, if any), over interest, if any, and
Additional Amounts, if any, or of interest, if any, and Additional Amounts, if
any, over principal (and premium, if any), or of any installment of interest, if
any, or Additional Amounts, if any, over any other installment of interest, if
any, or Additional Amounts, if any, or of any Security of such series over any
other Security of such series, ratably to the aggregate of such principal (and
premium, if any), and accrued and unpaid interest, if any, and Additional
Amounts, if any; and
FOURTH: To the Company.
Section 6.04. Proceedings by Securityholders. No Holder of any Security of
any series or of any Coupon appertaining thereto shall have any right by virtue
or by availing of any provision of this Indenture to institute any action or
proceedings at law or in equity or in bankruptcy or otherwise, upon or under or
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless such Holder previously shall have
given to the Trustee written notice of default and of the continuance thereof,
as hereinbefore provided, and unless also the Holders of not less than
twenty-five percent in aggregate principal amount of the Securities of such
series then outstanding shall have made written request upon the Trustee to
institute such action or proceedings in its own name as trustee hereunder and
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby,
and the Trustee for sixty days after its receipt of such notice, request and
offer of indemnity shall have failed to institute any such action or proceedings
and no direction inconsistent with such written request shall have been given to
the Trustee pursuant to Section 6.06; it being understood and intended, and
being expressly covenanted by the taker and Holder of every Security with every
other taker and Holder and the Trustee, that no one or more Holders of
Securities or Coupons appertaining to such Securities shall have any right in
any manner whatever by virtue of or by availing himself of any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holder of
Securities or Coupons appertaining to such Securities, or to obtain or seek to
obtain priority over or preference to any other such Holder or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities and Coupons. For
the protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be
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given either at law or in equity. Notwithstanding the first sentence of this
Section 6.04, if an Event of Default specified in clauses (e) and (f) of Section
6.01 occurs, no further action or declaration on part of the Trustee or any
Securityholder is required.
Notwithstanding any other provisions in this Indenture, however, the right
of any Holder of any Security to receive payment of the principal of (and
premium, if any) and interest, if any, and Additional Amounts, if any, on such
Security or Coupon, on or after the respective due dates expressed in such
Security or Coupon, or to institute suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without the
consent of such Holder. With respect to Original Issue Discount Securities,
principal shall mean such amount as shall be due and payable be specified in the
terms of such Securities.
Section 6.05. Remedies Cumulative and Continuing. All powers and remedies
given by this Article Six to the Trustee or to the Holders of Securities or
Coupons shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any thereof or of any other powers and remedies available to the
Trustee or the Holders of Securities or Coupons, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder of any of the Securities or Coupons to exercise any right or
power accruing upon any default occurring and continuing as aforesaid shall
impair any such right or power or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the provisions of Section
6.04, every power and remedy given by this Article Six or by law to the Trustee
or to the Holders of Securities or Coupons may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the Holders of
Securities or Coupons, as the case may be.
Section 6.06. Direction of Proceedings. The Holders of a majority in
aggregate principal amount of the Securities of any or all series affected
(voting as one class) at the time outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee;
provided, however, that (i) such direction shall not be in conflict with any
rule of law or with this Indenture, (ii) the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction and
(iii) the Trustee shall have the right to decline to follow any such direction
if the Trustee, being advised by counsel, determines that the action or
proceedings so directed would be prejudicial to the Holders not joining in such
direction or may not lawfully be taken or if the Trustee in good faith by its
board of directors or executive committee or a trust committee of directors or
trustees and/or Responsible Officers shall determine that the action or
proceedings so directed would involve the Trustee in personal liability.
Prior to any declaration accelerating the maturity of the Securities of any
series, the holders of a majority in aggregate principal amount of the
Securities of such series at the time outstanding may on behalf of the Holders
of all of the Securities of such series waive any past default or Event of
Default hereunder and its consequences except a default in the payment of
principal of (premium, if any) or interest, if any, or Additional Amounts, if
any, on any Securities of such series or in respect of a covenant or provision
hereof which may not be modified or amended without the consent of the Holders
of each outstanding Security of such series affected. Upon any such waiver the
Company, the Trustee and the Holders of the
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Securities of such series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Whenever any default or Event of Default hereunder shall have been waived as
permitted by this Section 6.06, said default or Event of Default shall for all
purposes of the Securities of such series and this Indenture be deemed to have
been cured and to be not continuing.
Section 6.07. Notice of Defaults. The Trustee shall, within ninety days
after the occurrence of a default with respect to the Securities of any series,
give notice of all Defaults with respect to that series known to the Trustee (i)
if any Unregistered Securities of that series are then outstanding, to the
Holders thereof, by publication at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 4.04, at least once in an
Authorized Newspaper in Luxembourg), (ii) if any Unregistered Securities of that
series are then outstanding, to all Holders thereof who have filed their names
and addresses with the Trustee as described in Section 5.02(a)(iii), by mailing
such notice to such Holders at such addresses and (iii) to all Holders of then
outstanding Registered Securities of that series, by mailing such notice to such
Holders at their addresses as they shall appear on the Security Register, unless
in each case such Defaults shall have been cured before the mailing or
publication of such notice (the term "DEFAULTS" for the purpose of this Section
being hereby defined to be the events specified in Sections 6.01(a), (b), (c),
(d), (e) and (f) and any additional events specified in the terms of any series
of Securities pursuant to Section 2.01, not including periods of grace, if any,
provided for therein, and irrespective of the giving of written notice specified
in Section 6.01(c) or (d) or in the terms of any Securities established pursuant
to Section 2.01); and provided that, except in the case of Default in the
payment of the principal of (premium, if any), interest, if any, or Additional
Amounts, if any, on any of the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Securities of such series.
Section 6.08. Undertaking to Pay Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Securityholders of
any series, or group of such Securityholders, holding in the aggregate more than
ten percent in aggregate principal amount of all Securities (voting as one
class), or to any suit instituted by any Securityholders for the enforcement of
the payment of the principal of (or premium, if any), interest, if any, or
Additional Amounts, if any on any Security on or after the due date expressed in
such Security.
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ARTICLE SEVEN.
CONCERNING THE TRUSTEE.
Section 7.01. Duties and Responsibilities of Trustee. The Trustee, prior to
the occurrence of an Event of Default of a particular series and after the
curing of all Events of Default of such series which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to a
particular series has occurred (which has not been cured) the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to a
particular series and after the curing of all Events of Default with respect to
such series which may have occurred:
(1) the duties and obligations of the Trustees with respect to such
series shall be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or officers, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of Securities pursuant to Section 6.06 relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture.
No provision of this Indenture shall be construed as requiring the Trustee
to expend or risk its own funds or otherwise to incur any personal financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if there shall be
33
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Section 7.02. Reliance on Documents, Opinions, etc. Subject to the
provisions of Section 7.01:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, debenture, note, Coupon or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by an instrument signed in the name of the
Company by the Chairman of the Board of Directors or any Vice Chairman of the
Board of Directors or the President or any Executive Vice President or any
Senior Vice President or any Vice President or any Managing Director or the
Chief Financial Officer or the Treasurer and by the Secretary or any Assistant
Secretary or, if the other signatory is other than the Treasurer, any Assistant
Treasurer (unless other evidence in respect thereof be herein specifically
prescribed); and a Board Resolution may be evidenced to the Trustee by a copy
thereof certified by the Secretary or any Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action taken
or suffered by it hereunder in good faith and in accordance with such Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders, pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses, and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys, provided, however, that the Trustee shall be responsible for any
misconduct or negligence on the part of any agent or attorney appointed by it
hereunder; and
(g) the Trustee shall not be liable for any action taken by it in good
faith and believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
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Section 7.03. No Responsibility for Recitals, etc. The recitals contained
herein and in the Securities, other than the Trustee's certificate of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities, provided that the Trustee shall not be relieved of its duty to
authenticate Securities only as authorized by this Indenture. The Trustee shall
not be accountable for the use or application by the Company of Securities or
the proceeds thereof.
Section 7.04. Ownership of Securities or Coupons. The Trustee or any agent
of the Company or of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities or Coupons with the same rights it
would have if it were not Trustee, or an agent of the Company or of the Trustee.
Section 7.05. Moneys to be Held in Trust. Subject to the provisions of
Section 12.04 hereof, all moneys received by the Trustee or any paying agent
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received but need not be segregated from other
funds except to the extent required by law. Neither the Trustee nor any paying
agent shall be under any liability for interest on any moneys received by it
hereunder except such as it may agree with the Company to pay thereon. So long
as no Event of Default shall have occurred and be continuing, all interest
allowed on any such moneys shall be paid from time to time upon the written
order of the Company, signed by its Chairman of the Board of Directors or any
Vice Chairman of the Board of Directors or its President or any Executive Vice
President or any Senior Vice President or any Vice President or any Managing
Director or its Treasurer or any Assistant Treasurer.
Section 7.06. Compensation and Expenses of Trustee. The Company covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation, and, except as otherwise expressly
provided the Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation, expenses and disbursements of its counsel and of all
Persons not regularly in its employ) except any such expense, disbursement or
advance as may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or reasonable expense incurred without negligence or bad faith
on the part of the Trustee, arising out of or in connection with the acceptance
or administration of this trust, including the reasonable costs and expenses of
defending itself against any claim of liability in the premises. The obligations
of the Company under this Section to compensate the Trustee and to pay or
reimburse the Trustee for reasonable expenses, disbursements and advances shall
constitute additional indebtedness hereunder, and shall survive discharge of the
Indenture, payment in full at maturity of the Securities, and resignation or
removal of the Trustee. Such additional indebtedness shall be secured by a lien
prior to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the Holders
of particular Securities or Coupons.
Section 7.07. Officers' Certificate as Evidence. Subject to the provisions
of Section 7.01, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any
35
action to be taken hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
Certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted by it under the provisions of this Indenture upon the faith thereof.
Section 7.08. Conflicting Interest of Trustee. The Trustee shall comply
with Section 310(b) of the Trust Indenture Act.
Section 7.09. Eligibility of Trustee. There shall at all times be a trustee
hereunder which shall be a corporation organized and doing business under the
laws of the United States or of any State or Territory thereof or of the
District of Columbia, which (a) is authorized under such laws to exercise
corporate trust powers and (b) is subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority and (c) shall have
at all times a combined capital and surplus of not less than twenty-five million
dollars. If such corporation publishes reports of condition at least annually,
pursuant to law, or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation at any time shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
Section 7.10. Resignation or Removal of Trustee. (a) The Trustee, or any
trustee or trustees hereafter appointed, may, upon sixty days written notice to
the Company, at any time resign with respect to one or more or all series by
giving written notice of resignation to the Company (i) if any Unregistered
Securities of a series affected are then outstanding, by giving notice of such
resignation to the Holders thereof, by publication at least once in an
Authorized Newspaper in London (and, if required by Section 4.04, at least once
in an Authorized Newspaper in Luxembourg), (ii) if any Unregistered Securities
of a series affected are then outstanding, by mailing notice of such resignation
to the Holders thereof who have filed their names and addresses with the Trustee
as described in Section 5.02(a)(iii) at such addresses as were so furnished to
the Trustee and (iii) by mailing notice of such resignation to the Holders of
then outstanding Registered Securities of each series affected at their
addresses as they shall appear on the Security Register. Upon receiving such
notice of resignation the Company shall promptly appoint a successor trustee
with respect to the applicable series by written instrument, in duplicate,
executed by order of the Board of Directors of the Company, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have
accepted appointment within thirty days after the mailing of such notice of
resignation to the Securityholders, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Section 6.08, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
36
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section
7.08 with respect to any series of Securities after written request
therefor by the Company or by any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months,
or
(2) the Trustee shall cease to be eligible in accordance with the
provision of Section 7.09 with respect to any series of Securities and
shall fail to resign after written request therefor by the Company or by
any such Securityholder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Company may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee with respect to
such series by written instrument, in duplicate, executed by order of the Board
of Directors of the Company, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 6.08, any Securityholder of such series who has been a
bona fide Holder of a Security or Securities of the applicable series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee with respect to such series. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of all series (voting as one class) at the time outstanding may at
any time remove the Trustee with respect to Securities of all series and appoint
a successor trustee with respect to the Securities of all series.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 7.11.
Section 7.11. Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 7.10 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as trustee herein; but, nevertheless, on the
written request of the Company or of the successor trustee, the trustee ceasing
to act shall, upon payment of any amounts then due it pursuant to the provisions
of Section 7.06, execute and deliver an instrument transferring to such
successor trustee all the rights and powers of the
37
trustee so ceasing to act. Upon request of any such successor trustee, the
Company shall execute any and all instruments in writing in order more fully and
certainly to vest in and confirm to such successor trustee all such rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon all
property or funds held or collected by such trustee to secure any amounts then
due it pursuant to the provisions of Section 7.06.
In case of the appointment hereunder of a successor trustee with respect to
the Securities of one or more (but not all) series, the Company, the predecessor
Trustee and each successor trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such trustees co-trustees of the
same trust and that each such trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such trustee.
No successor trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor trustee shall be qualified
under the provisions of Section 7.08 and eligible under the provisions of
Section 7.09.
Upon acceptance of appointment by a successor trustee as provided in this
Section, the Company shall give notice of the succession of such trustee
hereunder (a) if any Unregistered Securities of a series affected are then
outstanding, to the Holders thereof, by publication of such notice at least once
in an Authorized Newspaper in the Borough of Manhattan, The City of New York and
at least once in an Authorized Newspaper in London (and, if required by Section
4.04, at least once in an Authorized Newspaper in Luxembourg), (b) if any
Unregistered Securities of a series affected are then outstanding, to the
Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 5.02(a)(iii), by mailing such notice to such Holders at such
addresses as were so furnished to the Trustee (and the Trustee shall make such
information available to the Company for such purpose) and (c) to the Holders of
Registered Securities of each series affected, by mailing such notice to such
Holders at their addresses as they shall appear on the Security Register. If the
Company fails to mail such notice in the prescribed manner within ten days after
the acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be so given at the expense of the Company.
Section 7.12. Successor by Xxxxxx, etc. Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified under the provisions of Section
7.08 and eligible under the provisions of Section 7.09, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
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Section 7.13. Limitations on Rights of Trustee as Creditor. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act.
ARTICLE EIGHT.
CONCERNING THE SECURITYHOLDERS.
Section 8.01. Action by Securityholders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action the Holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by Securityholders in Person or by agent or proxy appointed in writing,
or (b) by the record of the Holders of Securities voting in favor thereof at any
meeting of Securityholders duly called and held in accordance with the
provisions of Article Nine, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Securityholders. In
determining whether the Holders of a specified percentage in aggregate principal
amount of the Securities have taken any action (including the making of any
demand or request, the waiving of any notice, consent or waiver or the taking of
any other action), the principal amount of any Original Issue Discount Security
that may be counted in making such determination and that shall be deemed to be
outstanding for such purposes shall be equal to the amount of the principal
thereof that could be declared to be due and payable upon an Event of Default
pursuant to the terms of such Original Issue Discount Security at the time the
taking of such action is evidenced to the Trustee.
Section 8.02. Proof of Execution by Securityholders. Subject to the
provisions of Sections 7.01, 7.02 and 9.05, proof of the execution of any
instrument by a Securityholder or its agent or proxy shall be sufficient if made
in the following manner:
(a) In the case of Holders of Unregistered Securities, the fact and date of
the execution by any such Person of any instrument may be proved by the
certificate of any notary public or other officer of any jurisdiction authorized
to take acknowledgments of deeds or administer oaths that the Person executing
such instruments acknowledged to him the execution thereof or by an affidavit of
a witness to such execution sworn to before any such notary or other such
officer. Where such execution is by or on behalf of any legal entity other than
an individual, such certificate or affidavit shall also constitute sufficient
proof of the authority of the Person executing the same. The fact of the holding
by any Holder of a Security of any series, and the identifying number of such
Security and the date of his holding the same, may be proved by the production
of such Security or by a certificate executed by any trust company, bank, banker
or recognized securities dealer wherever situated satisfactory to the Trustee,
if such certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
of such series bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized securities dealer by
the Person named in such certificate. Any such certificate may be issued in
respect of one or more Securities of one or more series specified therein. The
holding by the Person named in any such certificate of any Securities of any
series specified therein shall be presumed to continue for a period of one year
from the date of such certificate unless at the time of any determination of
such holding (1) another certificate bearing a later date issued in respect
39
of the same Securities shall be produced, or (2) the Security of such series
specified in such certificate shall be produced by some other Person, or (3) the
Security of such series specified in such certificates shall have ceased to be
outstanding. Subject to Sections 7.01, 7.02 and 9.05, the fact and date of the
execution of any such instrument and the amount and numbers of Securities of any
series held by the Person so executing such instrument and the amount and
numbers of any Security or Securities for such series may also be proven in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee for such series or in any other manner which the Trustee for such
series may deem sufficient.
(b) In the case of Registered Securities, the ownership of such Securities
shall be proved by the Security Register or by a certificate of the Security
Registrar.
Section 8.03. Who Are Deemed Absolute Owners. The Company, the Trustee, any
paying agent, any transfer agent and any Security Registrar may treat the Holder
of any Unregistered Security and the Holder of any Coupon as the absolute owner
of such Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes and neither the
Company, the Trustee, any paying agent, any transfer agent nor any Security
Registrar shall be affected by any notice to the contrary. The Company, the
Trustee, any paying agent, any transfer agent and any Security Registrar may,
subject to Section 2.04 hereof, treat the Person in whose name a Registered
Security shall be registered upon the Security Register as the absolute owner of
such Registered Security (whether or not such Registered Security shall be
overdue) for the purpose of receiving payment thereof or on account thereof and
for all other purposes and neither the Company, the Trustee, any paying agent,
any transfer agent nor any Security Registrar shall be affected by any notice to
the contrary.
Section 8.04. Company-Owned Securities Disregarded. In determining whether
the Holders of the required aggregate principal amount of Securities have
concurred in any direction, consent or waiver under this Indenture, Securities
which are owned by the Company or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company, shall be disregarded and deemed not to be outstanding for the purpose
of any such determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction, consent or
waiver only Securities which the Trustee knows are so owned shall be
disregarded. Securities so owned which have been pledged in good faith may be
regarded as outstanding for the purposes of this Section if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right to vote such
Securities and that the pledgee is not a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company. In the case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05. Revocation of Consents; Future Securityholders Bound. At any
time prior to the taking of any action by the Holders of the percentage in
aggregate principal amount of the Securities specified in this Indenture in
connection with such action, any Holder of a Security the identifying number of
which is shown by the evidence to be included in the Securities the Holders of
which have consented to such action may, by filing written notice with the
Trustee at its office and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Security. Except as aforesaid any
such action taken by the Holder of any Security
40
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of such Security and of any Security issued in exchange or substitution
therefor irrespective of whether or not any notation in regard thereto is made
upon such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the
Trustee and the Holders of all the Securities of each series intended to be
affected thereby.
Section 8.06. Securities in a Foreign Currency. Unless otherwise specified
in an Officers' Certificate or supplemental indenture delivered pursuant to
Section 2.01 of this Indenture with respect to a particular series of
Securities, on any day when for purposes of this Indenture any action may be
taken by the Holders of a specified percentage in aggregate principal amount of
two or more series of outstanding Securities and, at such time, there are
outstanding Securities of at least one such series which are denominated in a
coin or currency other than that of at least one other such series, then the
principal amount of Securities of each such series (other than any such series
denominated in U.S. Dollars) which shall be deemed to be outstanding for the
purpose of taking such action shall be that amount of U.S. Dollars that could be
obtained for such amount at the Market Exchange Rate. For purposes of this
Section 8.06, Market Exchange Rate shall mean the noon U.S. Dollar buying rate
for that currency for cable transfers quoted in The City of New York on such day
as certified for customs purposes by the Federal Reserve Bank of New York. If
such Market Exchange Rate is not available for any reason with respect to such
currency, the Company shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date. The provisions of this paragraph shall apply in
determining the equivalent number of votes which each Securityholder or proxy
shall be entitled to pursuant to Section 9.05 in respect of Securities of a
series denominated in a currency other than U.S. Dollars.
All decisions and determinations of the Company regarding the Market
Exchange Rate shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company and all Holders.
ARTICLE NINE.
SECURITYHOLDERS' MEETINGS.
Section 9.01. Purposes of Meetings. A meeting of Securityholders of any or
all series may be called at any time and from time to time pursuant to the
provisions of this Article for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to waive any default hereunder and its
consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article Six;
(2) to remove the Trustee and appoint a successor trustee pursuant to
the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
41
(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 Securities
of any or all series, as the case may be, under any other provision of this
Indenture or under applicable law.
Section 9.02. Call of Meetings by Trustee. The Trustee may at any time call
a meeting of Holders of Securities of any or all series to take any action
specified in Section 9.01, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, or in London, as the Trustee shall
determine. Notice of every meeting of the Holders of Securities of any or all
series, setting forth the time and place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be given (i) if any
Unregistered Securities of a series that may be affected by the action proposed
to be taken at such meeting are then outstanding, to all Holders thereof, by
publication at least twice in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least twice in an Authorized Newspaper in
London (and, if required by Section 4.04, at least twice in an Authorized
Newspaper in Luxembourg) prior to the date fixed for the meeting, the first
publication, in each case, to be not less than twenty nor more than one hundred
eighty days prior to the date fixed for the meeting and the last publication to
be not more than five days prior to the date fixed for the meeting, (ii) if any
Unregistered Securities of a series that may be affected by the action proposed
to be taken at such meeting are then outstanding, to all Holders thereof who
have filed their names and addresses with the Trustee as described in Section
5.02(a)(iii), by mailing such notice to such Holders at such addresses, not less
than twenty nor more than one hundred eighty days prior to the date fixed for
the meeting and (iii) to all Holders of then outstanding Registered Securities
of each series that may be affected by the action proposed to be taken at such
meeting, by mailing such notice to such Holders at their addresses as they shall
appear on the Security Register, not less than twenty nor more than one hundred
eighty days prior to the date fixed for the meeting. Failure of any Holder or
Holders to receive such notice or any defect therein shall in no case affect the
validity of any action taken at such meeting. Any meeting of Holders of
Securities of all or any series shall be valid without notice if the Holders of
all such Securities outstanding, the Company and the Trustee are present in
Person or by proxy or shall have waived notice thereof before or after the
meeting. The Trustee may fix, in advance, a date as the record date for
determining the holders entitled to notice of or to vote at any such meeting at
not less than twenty or more than one hundred eighty days prior to the date
fixed for such meeting.
Section 9.03. Call of Meetings by Company or Securityholders. In case at
any time the Company, pursuant to a Board Resolution, or the Holders of at least
ten percent in aggregate principal amount of the Securities of any or all
series, as the case may be, then outstanding, shall have requested the Trustee
to call a meeting of Securityholders of any or all series to take any action
authorized in Section 9.01, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have mailed or published as provided in Section 9.02, the notice of such meeting
within thirty days after receipt of such request, then the Company or the
Holders of such Securities in the amount above specified may determine the time
and the place in said Borough of Manhattan or London for such meeting and may
call such meeting to take any action authorized in Section 9.01, by mailing
notice thereof as provided in Section 9.02.
Section 9.04. Qualification for Voting. To be entitled to vote at any
meeting of Securityholders a Person shall be a Holder of one or more Securities
of a series with respect to
42
which a meeting is being held or a Person appointed by an instrument in writing
as proxy by such a Holder. The only Persons who shall be entitled to be present
or to speak at any meeting of the Securityholders shall be the Persons entitled
to vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
Section 9.05. Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof of the holding
of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 9.03, in which case the
Company or the Securityholder calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders of a majority
in principal amount of the Securities represented at the meeting and entitled to
vote.
Subject to the provisions of Sections 8.01 and 8.04, at any meeting each
Securityholder or proxy shall be entitled to one vote for each U.S. $1,000
principal amount of Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not outstanding and ruled by the chairman of the meeting not to be
outstanding. The chairman of the meeting shall have no right to vote except as a
Securityholder or proxy. Any meeting of Securityholders duly called pursuant to
the provisions of Section 9.02 or 9.03 may be adjourned from time to time, and
the meeting may be held as so adjourned without further notice.
Section 9.06. Voting. The vote upon any resolution submitted to any meeting
of Securityholders shall be by written ballot on which shall be subscribed the
signatures of the Securityholders or proxies and on which shall be inscribed the
identifying number or numbers or to which shall be attached a list of
identifying numbers of the Securities held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified reports in duplicate
of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of Securityholders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavit by one or
more Persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was mailed as provided in Section 9.02.
The record shall be signed and verified by the permanent chairman and secretary
of the meeting and one of the duplicates shall be delivered to the Company and
the other to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
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ARTICLE TEN.
SUPPLEMENTAL INDENTURES.
Section 10.01. Supplemental Indentures Without Consent of Securityholders.
Without the consent of the Holders of any of the Securities at the time
outstanding, the Company, when authorized by a Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act) for one or more of the following purposes:
(a) to evidence the succession of another corporation to the Company, or
successive successions, and the assumption by any successor corporation of the
covenants, agreements and obligations of the Company pursuant to Article Eleven
hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions as its Board of Directors and the Trustee
shall consider to be for the protection of the Holders of Securities of any or
all series, or the Coupons appertaining to such Securities, and to make the
occurrence, or the occurrence and continuance, of a default in any of such
additional covenants, restrictions, conditions or provisions a default or an
Event of Default with respect to any or all series permitting the enforcement of
all or any of the several remedies provided in this Indenture as herein set
forth, with such period of grace, if any, and subject to such conditions as such
supplemental indenture may provide;
(c) to add or change any of the provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the issuance of Securities of any
series in bearer form, registrable or not registrable as to principal, and with
or without interest Coupons, and, if permitted by law, to provide for
exchangeability of such Securities with Securities issued hereunder in fully
registered form and to make all appropriate changes for such purpose, and to add
or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of uncertificated Securities of
any series;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture or to make such other provisions in regard to matters or questions
arising under this Indenture, provided that such action pursuant to this clause
(d) shall not adversely affect the interests of the Holders of any series of
Securities or any Coupons appertaining to such Securities;
(e) to convey, transfer, assign, mortgage or pledge any property to or with
the Trustee;
(f) to evidence and provide for the acceptance and appointment hereunder by
a successor trustee with respect to the Securities of one or more series and to
add or change any provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to Section 7.11;
(g) to establish the form or terms of Securities of any series as permitted
by Sections 2.01 and 2.03; or
44
(h) to change or eliminate any provision of this Indenture, provided that
any such change or elimination (i) shall become effective only when there is no
Security outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision or
(ii) shall not apply to any Security outstanding.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which adversely affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 10.02. Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the Holders of not
less than a majority in the aggregate principal amount of the Securities of all
series at the time outstanding affected by such supplemental indenture (voting
as one class), the Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indentures or modifying in any manner the rights of the
Holders of the Securities of each such series or any Coupons appertaining to
such Securities; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each outstanding Security affected thereby,
(i) change the fixed maturity of any Securities, or reduce the principal amount
thereof (or premium, if any), or reduce the rate or extend the time of payment
of any interest or Additional Amounts thereon or reduce the amount due and
payable upon acceleration of the maturity thereof or the amount provable in
bankruptcy, or make the principal of (premium, if any) or interest, if any, or
Additional Amounts, if any, on any Security payable in any coin or currency
other than that provided in such Security, (ii) impair the right to institute
suit for the enforcement of any such payment on or after the stated maturity
thereof (or, in the case of redemption, on or after the redemption date
therefor) or (iii) reduce the aforesaid percentage of Securities, the consent of
the Holders of which is required for any such supplemental indenture, or the
percentage required for the consent of the Holders pursuant to Section 6.01 to
waive defaults.
Upon the request of the Company, accompanied by a copy of a Board
Resolution certified by the Secretary or an Assistant Secretary of the Company
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution and delivery by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice of
45
such supplemental indenture (i) to the Holders of then outstanding Registered
Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
Security Register, (ii) if any Unregistered Securities of a series affected
thereby are then outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee as described in Section 5.02(a)(iii), by mailing
a notice thereof by first-class mail to such Holders at such addresses as were
so furnished to the Trustee and (iii) if any Unregistered Securities of a series
affected thereby are then outstanding, to all Holders thereof, if by publication
of a notice thereof at least once in an Authorized Newspaper in London (and, if
required by Section 4.04, at least once in an Authorized Newspaper in
Luxembourg), and in each case such notice shall set forth in general terms the
substance of such supplemental indenture. Any failure of the Company to mail or
publish such notice, or any defect therein, shall not, however in any way impair
or affect the validity of any such supplemental indenture.
Section 10.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures. Any supplemental indenture executed pursuant to the provisions of
this Article Ten shall comply with the Trust Indenture Act. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article Ten,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
of Securities shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may
receive an Opinion of Counsel as conclusive evidence that any such supplemental
indenture complies with the provisions of this Article Ten.
Section 10.04. Notation on Securities. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provision of this Article Ten may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. New Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Company, authenticated by the Trustee and delivered, without
charge to the Securityholders, in exchange for the Securities of such series
then outstanding.
ARTICLE ELEVEN.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
Section 11.01. Company May Consolidate, etc., on Certain Terms. The Company
covenants that it will not merge or consolidate with any other Corporation or
sell, assign, transfer, lease or otherwise convey all or substantially all of
its property or assets to any Person, unless (i) either the Company shall be the
continuing Corporation, or the successor Person (if other than the Company)
shall be a Corporation organized and existing under the laws of the United
States of America or a state thereof and such Corporation shall expressly assume
the due and punctual payment of the principal of (and premium, if any),
interest, if any, and Additional
46
Amounts, if any, on all the Securities and any Coupons, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Company by
supplemental indenture satisfactory to the Trustee, executed and delivered to
the Trustee by such Corporation and (ii) the Company or such successor
Corporation, as the case may be, shall not, immediately after such merger or
consolidation, or such sale or conveyance, be in default in the performance of
any such covenant or condition.
Section 11.02. Successor Corporation Substituted. In case of any such
consolidation, merger, sale or conveyance and upon any such assumption by the
successor Corporation, such successor Corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
as the party of the first part. Such successor Corporation thereupon may cause
to be signed, and may issue either in its own name or in the name of Residential
Capital Corporation, any or all of the Securities, and any Coupons appertaining
thereto, issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
Corporation, instead of the Company, and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities or Coupons which previously shall have been signed
and delivered by the officers of the Company to the Trustee for authentication,
and any Securities or Coupons which such successor Corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All of the
Securities, and any Coupons appertaining thereto, so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Securities or Coupons theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Securities, and any Coupons
appertaining thereto, had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such changes
in phraseology and form (but not in substance) may be made in the Securities and
Coupons thereafter to be issued as may be appropriate.
Section 11.03. Reliance by Trustee on Officers' Certificate and Opinion of
Counsel. The Trustee, subject to the provisions of Sections 7.01 and 7.02, may
rely on the Officers' Certificate and Opinion of Counsel required by Section
15.04 as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article Eleven.
ARTICLE TWELVE.
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS.
Section 12.01. Discharge of Indenture. If at any time (a) the Company shall
have delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated (other than any Securities of such series and Coupons
appertaining thereto which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.06) or (b) all such
Securities of such series and any Coupons appertaining to such Securities not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company shall
deposit or cause to be deposited with the Trustee as trust
47
funds the entire amount (other than moneys repaid by the Trustee or any paying
agent to the Company in accordance with Section 12.04) sufficient to pay at
maturity or upon redemption all Securities of such series and all Coupons
appertaining to such Securities not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any), interest, if any, and
Additional Amounts, if any, due or to become due to such date of maturity or
date fixed for redemption, as the case may be, and if in either case the Company
shall also pay or cause to be paid all other sums payable hereunder by the
Company with respect to such series, then this Indenture shall cease to be of
further effect with respect to the Securities of such series or any Coupons
appertaining to such Securities, and the Trustee, on demand of and at the cost
and expense of the Company and subject to Section 15.04, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture with
respect to the Securities of such series and all Coupons appertaining to such
Securities. The Company agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Securities of such series or any Coupons
appertaining to such Securities.
Section 12.02. Satisfaction, Discharge and Defeasance of Securities of any
Series. If pursuant to Section 2.01 provision is made for the defeasance of
Securities of a series, then the provisions of this Section 12.02 shall be
applicable except as otherwise specified as contemplated by Section 2.01 for
Securities of such series. The Company shall cease to be under any obligation to
comply with any term, provision, condition or covenant specified as contemplated
by Section 2.01 with respect to the outstanding Securities of any series, when
(1) either
(A) with respect to all outstanding Securities of such series,
the Company has deposited or caused to be deposited with the Trustee:
(i) as trust funds in trust (in such currency in which such
outstanding Securities and any related Coupons are then specified
as payable at stated maturity) in an amount as will be; or
(ii) as obligations in trust direct noncallable obligations
of, or noncallable obligations the payment of principal of and
interest on which is fully guaranteed by, the United States of
America (or, in the case of Securities payable in a currency
other than the U.S. Dollars, by the government that issued such
currency), or to the payment of which obligations or guarantees
the full faith and credit of the United States of America (or, in
the case of Securities payable in a currency other than the U.S.
Dollars, by the government that issued such currency) is pledged,
maturing as to principal and interest in such amounts and at such
times as will, together with the income to accrue thereon (but
without reinvesting any proceeds thereof), be; or
(iii) a combination of (i) and (ii);
48
sufficient to pay and discharge the entire indebtedness on all
outstanding Securities of such series for principal (and premium, if
any), interest, if any, and Additional Amounts, if any, to the stated
maturity or any redemption date as contemplated by the last paragraph
of this Section 12.02, as the case may be, in installments on the
dates such principal (and premium, if any), interest, if any, and
Additional Amounts, if any, shall be due; or
(B) the Company has properly fulfilled such other terms and
conditions to the satisfaction and discharge as is specified, as
contemplated by Section 2.01, as applicable to the Securities of such
series, and
(2) the Company has paid or caused to be paid all other sums payable
with respect to the outstanding Securities of such series, 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 the
entire indebtedness on all outstanding Securities of any such series have
been complied with, and
(4) no event or condition shall exist that, pursuant to the provisions
of Article Thirteen, would prevent the Company from making payments of the
principal of (and any premium) or interest on the Securities of such series
on the date of such deposit or at any time on or prior to the ninetieth day
after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until such ninetieth day shall have ended),
and
(5) the Company has delivered to the Trustee an Opinion of Counsel
substantially to the effect that (x) the trust funds deposited pursuant to
this Section will not be subject to any rights of holders of Senior
Indebtedness, including those arising under Article Thirteen, and (y) after
the ninetieth day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally,
except that if a court were to rule under any such law in any case or
proceeding that the trust funds remained property of the Company, no
opinion is given as to the effect of such laws on the trust funds except
the following: (A) assuming such trust funds remained in the possession of
the trustee with whom such funds were deposited prior to such court ruling
to the extent not paid to Holders of such Securities, such trustee would
hold, for the benefit of such Holders, a valid and perfected security
interest in such trust funds that is not avoidable in bankruptcy or
otherwise, (B) such Holders would be entitled to receive adequate
protection of their interests in such trust funds if such trust funds were
used and (C) no property, rights in property or other interests granted to
such trustee (or the Trustee) or such Holders in exchange for or with
respect to any such funds would be subject to any prior rights of holders
of Senior Indebtedness, including those arising under Article Thirteen.
Notwithstanding the discharge and defeasance of any term, provision,
condition or covenant of the Securities of a series specified as contemplated by
Section 2.01 with respect to the Securities of a series at the time outstanding,
all other obligations of the Company in this
49
Indenture, including without limitation, the Company's primary liability for the
payment of the principal (premium, if any), interest, if any, and Additional
Amounts, if any, on all Securities of such series shall survive until the
payment of all such principal (premium, if any), interest, if any, and
Additional Amounts, if any, has been made, unless the Company has delivered to
the Trustee an Opinion of Counsel stating that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling or
(ii) since the date of execution of this Indenture, there has been a change in
the applicable Federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the holders of the outstanding
Securities and any related Coupons will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amounts and in
the same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred. Upon delivery of such
opinion and satisfaction of the other conditions in this Section 12.02, the
Company shall be deemed to have paid and discharged the entire indebtedness of
all outstanding Securities of such series (and the Trustee shall execute proper
instruments acknowledging satisfaction and discharge of such indebtedness),
except (i) rights of registration of transfer and exchange in accordance with
Section 2.05, and (ii) substitution of mutilated, destroyed, lost or stolen
Securities in accordance with Section 2.07.
Any deposits with the Trustee referred to in Section 12.02(1)(A) above
shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any outstanding
Securities of such series are to be redeemed prior to their stated maturity,
whether pursuant to any optional redemption provisions or in accordance with any
mandatory sinking fund requirement or otherwise, the applicable escrow trust
agreement shall provide therefor and the Company shall make such arrangements as
are satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Section 12.03. Deposited Moneys to be Held in Trust by Trustee. All moneys
deposited with the Trustee pursuant to Section 12.01 or 12.02 shall be held in
trust and applied by it to the payment, either directly or through any paying
agent (including the Company acting as its own paying agent if permitted by the
terms of the Securities of such series as specified by Section 2.01), to the
Holders of the particular Securities and of any Coupons appertaining to such
Securities for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal (and premium, if any), interest, if any, and Additional Amounts, if
any. Moneys so held in trust shall not be subject to the provisions of Article
Thirteen, provided that the applicable conditions of Section 12.02 have been
satisfied. The Trustee shall not be liable to anyone for interest on any
deposited funds except as agreed in writing.
Section 12.04. Paying Agent to Repay Moneys Held. In connection with the
satisfaction and discharge of this Indenture with respect to Securities of any
series all moneys with respect to such Securities then held by any paying agent
under the provisions of this Indenture shall, upon demand of the Company, be
repaid to it or paid to the Trustee and thereupon such paying agent shall be
released from all further liability with respect to such moneys.
50
Section 12.05. Return of Unclaimed Moneys. Any moneys deposited with or
paid to the Trustee or any paying agent for the payment of the principal of (and
premium, if any), interest, if any, and Additional Amounts, if any, on any
Security and not applied but remaining unclaimed for two years after the date
upon which such principal (and premium, if any), interest, if any, and
Additional Amounts, if any, shall have become due and payable, shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Company by the Trustee or such paying
agent on demand, and the Holder of such Security or any Coupon appertaining to
such Security shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, thereafter look only
to the Company for any payment which such Holder may be entitled to collect and
all liability of the Trustee or any paying agent with respect to such moneys
shall thereupon cease; provided, however, that the Trustee or such paying agent,
before being required to make any such repayment with respect to moneys
deposited with it for any payment in respect of Unregistered Securities of any
series, may at the expense of the Company cause to be published once, in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and once
in an Authorized Newspaper in London (and, if required by Section 4.04, once in
an Authorized Newspaper in Luxembourg), notice that such moneys remain and that,
after a date specified therein, which shall not be less than thirty days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
ARTICLE THIRTEEN.
SUBORDINATION OF SECURITIES
Section 13.01. Agreement to Subordinate. The Company covenants and agrees,
and each Holder of Securities issued hereunder by his acceptance thereof
likewise covenants and agrees, that all Securities issued hereunder shall be
issued subject to the provisions of this Article; and each person holding any
Security, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees to be bound by such provisions. The provisions of
this Article are made for the benefit of the holders of Senior Indebtedness, and
such holders shall, at any time, be entitled to enforce such provisions against
the Company or any holders.
All Securities issued hereunder shall, to the extent and in the manner
hereinafter in this Article set forth, be subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness.
Section 13.02. No Payment on Securities if Senior Indebtedness in Default.
No payment (including any payment which may be payable by reason of the payment
of any other indebtedness of the Company being subordinated to the payment of
the Securities) on account of principal of (and premium, if any), interest and
any Additional Amounts, if any, on the Securities or on account of the purchase
or other acquisition of Securities shall be made unless full payment of amounts
then due for principal of (and premium, if any), interest and any Additional
Amounts, if any, on all Senior Indebtedness has been made or duly provided for.
No payment (including the making of any deposit in trust with the Trustee in
accordance with Section 12.01) on account of principal of (and premium, if any),
interest and any Additional Amounts, if any, on the Securities shall be made if,
at the time of such payment or immediately after giving effect thereto, (i)
there shall exist a default in the payment of principal of (and premium, if
any), interest and any Additional Amounts, if any, with respect to any Senior
Indebtedness, or (ii)
51
there shall have occurred an event of default (other than a default in the
payment of principal of (and premium, if any), interest and any Additional
Amounts, if any,) with respect to any Senior Indebtedness, as defined therein or
in the instrument under which the same is outstanding, permitting the holders
thereof to accelerate the maturity thereof, and such event of default shall not
have been cured or waived or shall not have ceased to exist. The foregoing
provision shall not prevent the Trustee from making payments on the Securities
from moneys or securities deposited with the Trustee pursuant to the terms of
Section 12.01 if at the time such deposit was made or immediately after giving
effect thereto the conditions in clause (i) or (ii) of this Section did not
exist.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
provisions of this Section, and if such fact shall, at or prior to the time of
such payment, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such payment shall be paid over and delivered
forthwith to the Company.
Section 13.03. Priority of Senior Indebtedness. In the event of any
insolvency or bankruptcy proceedings, and any receivership, liquidation,
reorganization under Title 11 of the United States Code or any other similar
applicable Federal or state law, or other similar proceedings in connection
therewith, relative to the Company or to its creditors, as such, or to its
property, and in the event of any proceedings for voluntary or involuntary
liquidation, dissolution or other winding-up of the Company or assignment for
the benefit of creditors or any other marshalling of assets of the Company,
whether or not involving insolvency or bankruptcy, then the holders of Senior
Indebtedness shall be entitled to receive payment in full of all principal of
(and premium, if any), interest and any Additional Amounts, if any, on all
Senior Indebtedness including interest on such Senior Indebtedness after the
date of filing of a petition or other action commencing such proceeding, or
provision shall be made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Indebtedness, before
the Holders of the Securities are entitled to receive any payment on account of
the principal of (and premium, if any), interest and any Additional Amounts, if
any, on the Securities (except that Holders of Securities shall be entitled to
receive such payments from moneys or securities deposited with the Trustee
pursuant to the terms of Section 12.01 if at the time such deposit was made or
immediately after giving effect thereto the conditions in clause (i) or (ii) of
Section 13.02 did not exist), and any payment or distribution of any kind or
character which may be payable or deliverable in any such proceedings in respect
of the Securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of the
Company being subordinated to the payment of the Securities but excluding any
such payment or distribution of securities which are subordinate and junior in
right of payment to the payment of all Senior Indebtedness then outstanding,
shall be paid by the person making such payment or distribution directly to the
holders of Senior Indebtedness to the extent necessary to make payment in full
of all Senior Indebtedness, after giving effect to any concurrent payment or
distribution to the holders of Senior Indebtedness. In the event that any
payment or distribution of cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason of the
payment of any other indebtedness of the Company being subordinated to the
payment of the Securities, shall be received by the Trustee or the Holders of
the Securities in contravention of this Section before all Senior Indebtedness
is paid in full, or provision made for the payment thereof, such payment or
52
distribution shall be held in trust for the benefit of and shall be paid over to
the holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture under which
any instrument evidencing any of such Senior Indebtedness may have been issued,
or to the trustee in bankruptcy, receiver, liquidating trustee, custodian,
assignee, agent or other person making payment or distribution of assets of the
Company for application to the payment of all Senior Indebtedness remaining
unpaid, as their respective interests may appear, to the extent necessary to pay
in full all Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness.
Any taxes that have been withheld or deducted from any payment or distribution
in respect of the Securities, or any taxes that ought to have been withheld or
deducted from any such payment or distribution that have been remitted to the
relevant taxing authority, shall not be considered to be an amount that the
Trustee or the Holder of any Security receives for purposes of this Section.
For purposes of this Article only, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation or other
entity provided for by a plan of reorganization or readjustment which are
subordinated in right of payment to all Senior Indebtedness which may at the
time be outstanding to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, or the
conveyance, transfer or lease by the Company of its properties and assets
substantially as an entirety to, another person upon the terms and conditions
set forth in Article Eleven, or the liquidation or dissolution of the Company
following any such conveyance or transfer, shall not be deemed a dissolution,
winding-up, liquidation, reorganization, assignment for the benefit of creditors
or marshalling of assets and liabilities of the Company for the purposes of this
Section if the person formed by such consolidation or into which the Company is
merged or the person which acquires by conveyance, transfer or lease of such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance or transfer, comply with the
conditions set forth in Article Eleven.
In the event that any Security is declared due and payable before its
Maturity Date because of the occurrence of an Event of Default (under
circumstances when the provisions of the first paragraph of this Section shall
not be applicable), the holders of the Senior Indebtedness outstanding at the
time the Securities of such series so become due and payable because of such
occurrence of such an Event of Default shall be entitled to receive payment in
full of all principal of (and premium, if any), interest and any Additional
Amounts, if any, on all Senior Indebtedness or provisions shall be made for such
payment in cash before the Holders of the Securities of such series are entitled
to receive any payment (including any payment which may be payable by reason of
the payment of any other indebtedness of the Company being subordinated to the
payment of the Securities) on account of the principal of (and premium, if any),
interest and any Additional Amounts, if any, on the Securities of such series or
on account of the purchase or other acquisition of Securities except that
Holders of Securities of such series shall be entitled to receive payments from
moneys or securities deposited with the Trustee pursuant to the terms of Section
12.01, if at the time of such deposit no Security of such series had been
declared due and payable before its expressed maturity because of the occurrence
of an Event of Default.
53
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
Nothing in this Section shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.06.
Section 13.04. Payment Permitted in Certain Situations. Nothing contained
in this Article or elsewhere in this Indenture or in any of the Securities shall
prevent (a) the Company, at any time except during the pendency of any case,
proceeding, dissolution, liquidation or other winding-up, assignment for the
benefit of creditors or other marshalling of assets and liabilities of the
Company referred to in Section 13.03 or under the other conditions described in
Section 13.02 or 13.03, from making payments at any time of or on account of the
principal of (and premium, if any), interest or any Additional Amounts, if any,
on the Securities or on account of the purchase or other acquisition of the
Securities, or (b) the application by the Trustee of any money deposited with it
hereunder to the payment of or on account of the principal of (and premium, if
any), interest or any Additional Amounts, if any, on the Securities or the
retention of such payment by the Holders, if, at the time of such application by
the Trustee, it did not have knowledge that such payment would have been
prohibited by the provisions of this Article.
Section 13.05. Company to Give Notice of Certain Events; Reliance by
Trustee. The Company shall give prompt written notice to the Trustee of any
insolvency or bankruptcy proceedings, any receivership, liquidation,
reorganization under Title 11 of the United States Code or any other similar
applicable Federal or state law, or similar proceedings and any proceedings for
voluntary liquidation, dissolution or winding up of the Company within the
meaning of this Article. The Trustee shall be entitled to assume that no such
event has occurred unless the Company or any one or more holders of Senior
Indebtedness or any trustee therefor has given such notice together with proof
satisfactory to the Trustee of such holding of Senior Indebtedness or the
authority of such trustee. Upon any payment or distribution of assets of the
Company referred to in this Article, the Trustee, in the absence of its own
negligence, bad faith or willful misconduct, and any Holder of a Security shall
be entitled to rely conclusively upon a certificate of the receiver, trustee in
bankruptcy, liquidation trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article.
In the event that the Trustee determines, in good faith, that further evidence
is required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, as to the extent to which such person is entitled to
participate in such payment or distribution and as to other facts pertinent to
the rights of such person under this Article, and if such evidence is not
furnished, the Trustee may defer any payment to such person pending judicial
determination as to the right of such person to receive such payment.
54
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such covenants and obligations as are specifically
set forth in this Indenture and no implied covenants or obligations with respect
to holders of Senior Indebtedness shall be read into this Indenture against the
Trustee. The Trustee does not have any fiduciary duties to holders of Senior
Indebtedness and shall not be liable to any such holders if it shall in good
faith pay over or distribute to Holders of Securities or the Company or any
other person, moneys or assets to which any holder of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
Nothing in this Section shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.06.
Section 13.06. Subrogation of Securities. Subject to the payment in full of
all Senior Indebtedness or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article (equally and ratably with the holders
of indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Securities
are subordinated to the Senior Indebtedness and is entitled to like rights of
subrogation) to the rights of the holders of Senior Indebtedness to receive
payments or distributions of assets of the Company made on the Senior
Indebtedness until the principal of (and premium, if any), interest and any
Additional Amounts, if any, on the Securities shall be paid in full; and, for
the purposes of such subrogation, no payments or distributions to the holders of
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payment pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Securities, or by the Trustee,
shall, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of Securities, be deemed to be a payment or
distribution by the Company to or on account of Senior Indebtedness, and no
payments or distributions to the Trustee or the Holders of the Securities of
cash, property or securities payable or distributable to the holders of the
Senior Indebtedness to which the Trustee or the Holders of the Securities shall
become entitled pursuant to the provisions of this Section, shall, as between
the Company, its creditors other than the holders of Senior Indebtedness, and
the Holders of the Securities, be deemed to be a payment by the Company to the
Holders of or on account of the Securities.
Section 13.07. Company Obligation to Pay Unconditional. The provisions of
this Article are solely for the purpose of defining the relative rights of the
holders of Senior Indebtedness on the one hand, and the Holders of the
Securities on the other hand, and nothing herein or elsewhere in this Indenture
or in the Securities shall (i) impair, as between the Company, its creditors,
other than holders of Senior Indebtedness, and the Holders of the Securities,
the obligation of the Company, which is unconditional and absolute (and which,
subject to the rights under this Article of the holders of Senior Indebtedness,
is intended to rank equally with all other general obligations of the Company),
to pay to the Holders thereof the principal thereof (and premium, if any),
interest and any Additional Amounts, if any, thereon in accordance with the
terms of the Securities and this Indenture; or (ii) affect the relative rights
against the Company of the Holders of the Securities and creditors of the
Company other than
55
the holders of the Senior Indebtedness; or (iii) prevent the Holders of the
Securities or the Trustee from exercising all remedies otherwise permitted by
applicable law or under the Securities and this Indenture upon default under the
Securities and this Indenture, subject to the rights of holders of Senior
Indebtedness under the provisions of this Article to receive cash, property or
securities otherwise payable or deliverable to the Holders of the Securities.
Section 13.08. Authorization of Holders of Securities to Trustee to Effect
Subordination. Each Holder of Securities by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 13.09. No Waiver of Subordination Provisions. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any non-compliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) release any person liable in any manner for
the collection of Senior Indebtedness; and (iii) exercise or refrain from
exercising any rights against the Company and any other person.
Section 13.10. Notice to Trustee of Facts Prohibiting Payments.
Notwithstanding any of the provisions of this Article or any other provision of
this Indenture, the Trustee shall not at any time be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
moneys to or by the Trustee, unless and until the Trustee shall have received
written notice thereof from the Company or from one or more holders of Senior
Indebtedness or from any trustee therefor, together with proof satisfactory to
the Trustee of such holding of Senior Indebtedness or the authority of such
trustee, and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 7.01, shall be entitled in all respects to
assume that no such facts exist; provided, that, if prior to the second Business
Day preceding the date upon which by the terms hereof any such moneys may become
payable for any purpose (including, without limitation, the payment of the
principal of or premium, if any, or interest on any Security), the Trustee shall
not have received with respect to such moneys the notice provided for in this
Section, then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such moneys and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary which may be received by it on or after such day.
56
Section 13.11. Trustee May Hold Senior Indebtedness. The Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness at the time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Section 13.12. All Indenture Provisions Subject to this Article.
Notwithstanding anything herein contained to the contrary, all the provisions of
this Indenture shall be subject to the provisions of this Article, so far as the
same may be applicable thereto.
Section 13.13. Article Applicable to Paying Agents. In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in this Article shall in
such case (unless the context otherwise requires) be construed as extending to
and including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition to or in
place of the Trustee.
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.
Section 14.01. Indenture and Securities Solely Corporate Obligations. No
recourse under or upon any obligation, covenant or agreement contained in this
Indenture, or in any covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any past, present or future incorporator, stockholder, officer or
director, as such, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, under any rule of
law, statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the Holders
thereof and as part of the consideration for the issue of the Securities and
Coupons.
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
Section 15.01. Benefits of Indenture Restricted to Parties, Holders of
Senior Indebtedness and Securityholders. Nothing in this Indenture or in the
Securities or Coupons, expressed or implied, shall give or be construed to give
to any Person, firm or corporation, other than the parties hereto and their
successors, the holders of any Senior Indebtedness and the Holders of the
Securities or Coupons, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors, the holders of any Senior Indebtedness and of the Holders of
the Securities or Coupons.
Section 15.02. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or on behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
57
Section 15.03. Addresses for Notices, etc. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders of Securities to or on the Company may be given
or served by being deposited postage prepaid first class mail in a post office
letter box addressed (until another address is filed by the Company with the
Trustee), as follows: Residential Capital Corporation, 0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000. Any notice, direction, request or
demand by any Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at its
Corporate Trust Office, which is at the date of this Indenture, 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, except that for purposes of presentation of Securities
for payment or registration of transfer or exchange, such term means the office
or agency which at any particular time its corporate agency business shall be
conducted, which at the date of this Indenture is 00 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Trust and Securities Services.
Section 15.04. Evidence of Compliance with Conditions Precedent. Upon any
application or demand by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 15.05. Legal Holidays. Except as otherwise specified as
contemplated by Section 2.01 for Securities of any series, in any case where the
date of maturity of any interest, premium or Additional Amounts on or principal
of the Securities or the date fixed for redemption of any Securities shall not
be a Business Day in a city where payment thereof is to be made, then payment of
any interest, premium or Additional Amounts on, or principal of such Securities
need not be made on such date in such city but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
Section 15.06. Trust Indenture Act to Control. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture by operation of Sections 310 to 317,
inclusive, of the Trust Indenture Act (an "INCORPORATED PROVISION"), such
incorporated provision shall control.
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Section 15.07. Execution in Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 15.08. New York Contract. This Indenture and each Security shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be governed by and construed in accordance with the laws of
said State. Any claims or proceedings in respect of this Indenture shall be
heard in a federal or state court located in the State of New York.
Section 15.09. Judgment Currency. The Company agrees, to the fullest extent
that it may effectively do so under applicable law, that (a) if for the purposes
of obtaining judgment in any court it is necessary to convert the sum due in
respect of the principal of or interest on the Securities of any series (the
"REQUIRED CURRENCY") into a currency in which a judgment will be rendered (the
"JUDGMENT CURRENCY"), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the date on
which final unappealable judgment is entered, unless such day is not a New York
Banking Day, then, to the extent permitted by applicable law, the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding the
day on which final unappealable judgment is entered and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount of
the Required Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "NEW YORK BANKING DAY" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
Section 15.10. Severability of Provisions. Any prohibition, invalidity or
unenforceability of any provision of this Indenture in any jurisdiction shall
not invalidate or render unenforceable the remaining provisions hereto in such
jurisdiction and shall not invalidate or render unenforceable such provisions in
any other jurisdiction.
Section 15.11. Company Released From Indenture Requirements Under Certain
Circumstances. Whenever in this Indenture the Company shall be required to do or
not to do anything so long as any of the Securities of any series shall be
Outstanding, the Company shall, notwithstanding any such provision, not be
required to comply with such provisions if it shall be entitled to have this
Indenture satisfied and discharged pursuant to the provisions hereof, even
though in either case the Holders of any of the Securities of that series shall
have failed to present and surrender them for payment pursuant to the terms of
this Indenture.
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Deutsche Bank Trust Company Americas hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
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IN WITNESS WHEREOF, RESIDENTIAL CAPITAL CORPORATION has caused this
Indenture to be signed and acknowledged by its Chairman of the Board or one of
its Vice Chairmen of the Board or its President or its Chief Executive Officer
or its Chief Financial Officer or one of its Executive Vice Presidents or one of
its Senior Vice Presidents or one of its Vice Presidents or its Managing
Director or its Treasurer; and DEUTSCHE BANK TRUST COMPANY AMERICAS has caused
this Indenture to be signed, all as of the day and year first above written.
RESIDENTIAL CAPITAL CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title
---------------------------------
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
By:
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Name:
----------------------------------
Title
---------------------------------
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