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EXHIBIT 4(a)
SYSCO CORPORATION
AND
FIRST UNION NATIONAL BANK OF NORTH CAROLINA, TRUSTEE
INDENTURE
DATED AS OF JUNE 15, 1995
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TABLE OF CONTENTS
ARTICLE I - DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Certain Terms Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.2 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.3 Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.4 Authentication and Delivery of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.5 Execution of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.6 Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.7 Denomination and Date of Securities; Payments of Interest . . . . . . . . . . . . . . . . . . . . . 15
2.8 Registration, Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . 18
2.10 Cancellation of Securities; Destruction Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.11 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.12 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE III - COVENANTS OF THE ISSUER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.1 Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.2 Offices for Payments, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.3 Appointment to Fill a Vacancy in Office of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.4 Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.5 Written Statement to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.6 Luxembourg Publications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.7 Certain Covenants Applicable to the Securities; Limitations on Liens . . . . . . . . . . . . . . . . 24
ARTICLE IV - SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE . . . . . . . . . . . . . . . . . . . . 25
4.1 Issuer to Furnish Trustee Information As to Names and Addresses of Securityholders . . . . . . . . . 25
4.2 Reports by the Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4.3 Reports by the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE V - REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT . . . . . . . . . . . . . . . . . . . . . 26
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5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default . . . . . . . . . . . . . . . 26
5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt . . . . . . . . . . . . . . . . . . . 28
5.3 Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.4 Suits for Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.5 Restoration of Rights on Abandonment of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . 32
5.6 Limitations on Suits by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.7 Unconditional Right of Securityholder to Institute Certain Suits . . . . . . . . . . . . . . . . . . 32
5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default . . . . . . . . . . . . . . 33
5.9 Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5.10 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5.11 Trustee to Give Notice of Default, But May Withhold in Certain Circumstances . . . . . . . . . . . . 34
5.12 Right of Court to Require Filing of Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . . 34
ARTICLE VI - CONCERNING THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.1 Duties and Responsibilities of the Trustee; Prior to Default . . . . . . . . . . . . . . . . . . . . 35
6.2 Certain Rights of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds
Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.4 Trustee and Agents May Hold Securities or Coupons; Collections; etc . . . . . . . . . . . . . . . . 38
6.5 Moneys Held by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
6.6 Compensation and Indemnification of Trustee and Its Prior Claim . . . . . . . . . . . . . . . . . . 38
6.7 Right of Trustee to Rely on Officer's Certificate, etc . . . . . . . . . . . . . . . . . . . . . . . 39
6.8 Indentures Not Creating Potential Conflicting Interests for the Trustee . . . . . . . . . . . . . . 39
6.9 Persons Eligible for Appointment as Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.10 Resignation and Removal; Appointment of Successor Trustee . . . . . . . . . . . . . . . . . . . . . 39
6.11 Acceptance of Appointment by Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee . . . . . . . . . . . . . . . 42
6.13 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE VII - CONCERNING THE SECURITYHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.1 Evidence of Action Taken by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.2 Proof of Execution of Instruments and of Holding of Securities . . . . . . . . . . . . . . . . . . . 44
7.3 Holders to be Treated as Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.4 Securities Owned by Issuer Deemed Not Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.5 Right of Revocation of Action Taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
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7.6 Record Date for Consents and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE VIII - SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
8.1 Supplemental Indentures Without Consent of Securityholders . . . . . . . . . . . . . . . . . . . . . 47
8.2 Supplemental Indentures With Consent of Securityholders . . . . . . . . . . . . . . . . . . . . . . 48
8.3 Effect of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.4 Documents to Be Given to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.5 Notation on Securities in Respect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . 50
ARTICLE IX - CONSOLIDATION, MERGER, SALE OR CONVEYANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
9.1 Issuer May Consolidate, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
9.2 Successor Issuer Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.3 Opinion of Counsel to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE X - SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS . . . . . . . . . . . . . . . . . . . . . . . 52
10.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
10.2 Application by Trustee of Funds Deposited for Payment of Securities . . . . . . . . . . . . . . . . 56
10.3 Repayment of Moneys Held by Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years . . . . . . . . . . . . . 56
10.5 Indemnity for U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE XI - MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
11.1 Incorporators, Stockholders, Officers, Directors and Employees of Issuer Exempt from Individual
Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
11.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities and Coupons . . . 57
11.3 Successors and Assigns of Issuer Bound by Indenture . . . . . . . . . . . . . . . . . . . . . . . 58
11.4 Notices and Demands on Issuer, Trustee and Holders of Securities and Coupons . . . . . . . . . . . 58
11.5 Officer's Certificates and Opinions of Counsel; Statements to Be Contained Therein . . . . . . . . . 59
11.6 Payments Due on Saturdays, Sundays and Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939 . . . . . . . . . . . . . . 60
11.8 New York Law to Govern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
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11.10 Effect of Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.11 Securities in a Foreign Currency or in ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.12 Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE XII - REDEMPTION OF SECURITIES AND SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
12.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
12.2 Notice of Redemption; Partial Redemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
12.3 Payment of Securities Called for Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
12.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption . . . . . . . . . . . 64
12.5 Mandatory and Optional Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
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THIS INDENTURE, dated as of June 15, 1995 between SYSCO
CORPORATION, a Delaware corporation (the "Issuer"), and FIRST UNION NATIONAL
BANK OF NORTH CAROLINA, a national banking association, as trustee (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to
time of its unsecured debentures, notes or other evidences of indebtedness to
be issued in one or more series (the "Securities") up to such principal amount
or amounts as may from time to time be authorized in accordance with the terms
of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders
from time to time of the securities and of the coupons, if any, appertaining
thereto as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Terms Defined. The following terms (except
as otherwise expressly provided or unless the context otherwise clearly
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 that are defined in the Trust Indenture Act of
1939 or are defined therein by reference to the Securities Act of 1933 (except
as herein otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation. The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision. The
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terms defined in this Article have the meanings assigned to them in this Article
and include the plural as well as the singular.
"Attributable Debt" with regard to a Sale and Lease-Back
Transaction with respect to any property means, at the time of determination,
the lesser of: (a) the fair market value of such property (as determined in
good faith by the Board of Directors of the Issuer); or (b) the present value
of the total net amount of rent required to be paid under such lease during the
remaining term thereof (including any period for which such lease has been
extended), discounted at the rate of interest set forth or implicit in the
terms of such lease (or, if not practicable to determine such rate, the
weighted average interest rate per annum borne by the Securities then
outstanding) compounded semi- annually. In the case of any lease which is
terminable by the lessee upon the payment of a penalty, such net amount shall
be the lesser of the net amount determined assuming termination upon the first
date such lease may be terminated (in which case the net amount shall also
include the amount of the penalty, but no rent shall be considered as required
to be paid under such lease subsequent to the first date upon which it may be
so terminated) or the net amount determined assuming no such termination.
"Authenticating Agent" shall have the meaning set forth in
Section 6.13.
"Authorized Newspaper" means a newspaper (which, in the case
of The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition), in the case of the United Kingdom, will, if practicable, be
The Financial Times (London Edition) and, in the case of Luxembourg, will, if
practicable, be The Luxemburger Wort) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York, the United Kingdom or in Luxembourg, as applicable. 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" means either the Board of Directors of
the Issuer or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have been
duly adopted or consented to by the Board of Directors and to be in full force
and effect, and delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that
in the city of the principal Corporate Trust Office of the Trustee and in the
city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is neither a Saturday, Sunday or a
legal holiday nor a day on which banking institutions are authorized or
required by law or regulation to close.
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"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"Composite Rate" means, at any time, the rate of interest, per
annum, compounded semiannually, equal to the sum of the rates of interest borne
by each of the Securities Outstanding hereunder (as specified on the face of
each of the Securities, provided, that, in the case of the Securities with
variable rates of interest, the interest rate to be used in calculating the
Composite Rate shall be the interest rate applicable to such Securities at the
beginning of the year in which the Composite Rate is being determined and,
provided, further, that, in the case of Securities which do not bear interest,
the interest rate to be used in calculating the Composite Rate shall be a rate
equal to the yield to maturity on such Securities, calculated at the time of
issuance of such Securities) multiplied, in the case of each of the Securities,
by the percentage of the aggregate principal amount of all of the Securities
then Outstanding represented by such Security. For the purposes of this
calculation, the aggregate principal amounts of Outstanding Securities that are
denominated in a foreign currency, shall be calculated in the manner set forth
in Section 11.11.
"Consolidated Net Tangible Assets" means, as of any particular
time, the aggregate amount of assets (less applicable reserves and other
properly deductible items) after deducting therefrom: (a) all current
liabilities, except for current maturities of long-term debt and of obligations
under capital leases; and (b) intangible assets, to the extent included in said
aggregate amount of assets, all as set forth on the most recent consolidated
balance sheet of the Issuer and its consolidated subsidiaries and computed in
accordance with generally accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular
time, be principally administered which office is, at the date as of which this
Indenture is dated, located in Charlotte, North Carolina. Where the terms of
this Indenture refer to performance in New York, New York, the location and
address of such office are as follows:
c/o IBJ Xxxxxxxx Bank & Trust
Stock Transfer Department, XXX
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Lifzewsky
Phone: (000) 000-0000
"Coupon" means any interest coupon appertaining to a Security.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Issuer pursuant to
Section 2.3 until a successor Depositary shall have become such pursuant to the
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applicable provisions of this Indenture, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Registered Global Securities of that series.
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of European Communities.
"Event of Default" means any event or condition specified as
such in Section 5.1.
"Foreign Currency" means a currency issued by the government
of a country other than the United States.
"Holder," "Holder of Securities," "Securityholder" or other
similar terms mean (a) in the case of any Registered Security, the person in
whose name such Security is registered in the security register kept by the
Issuer for that purpose in accordance with the terms hereof, and (b) in the
case of any Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"Indebtedness" shall have the meaning set forth in Section
5.1.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular
series of Securities established as contemplated hereunder.
"Interest" shall include interest payable after maturity and
any additional amount payable in connection with the applicable Securities.
"Issuer" means Sysco Corporation, a Delaware corporation and,
subject to Article IX, its successors and assigns.
"Issuer Order" means a written statement, request or order of
the Issuer signed in its name by the Chairman or Vice Chairman of the Board of
Directors, the President, any Vice President or the Treasurer of the Issuer.
"Judgment Currency" shall have the meaning set forth in
section 11.12.
"Officer's Certificate" means a certificate signed by the
Chairman or Vice Chairman of the Board of Directors, the President or any Vice
President or the Treasurer of the Issuer and
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delivered to the Trustee. Each such certificate shall comply with Section 314
of the Trust Indenture Act of 1939 and include the statements provided for in
Section 11.5.
"Opinion of Counsel" means an opinion in writing signed by the
General Counsel of the Issuer or by such other legal counsel who may be an
employee of or counsel to the Issuer and who shall be satisfactory to the
Trustee. Each such opinion shall comply with section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 11.5.
"Original Issue Date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereat pursuant to
Section 5.1.
"Outstanding" when used with reference to Securities, shall,
subject to the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the
payment or redemption of which moneys or U.S. Government Obligations
in the necessary amount (as provided for in Section 10.1) shall have
been deposited in trust with the Trustee or with any paying agent
(other than the Issuer) or shall have been set aside, segregated and
held in trust by the Issuer for the Holders of such Securities (if the
Issuer shall act as its own paying agent), provided that if such
Securities, or portions thereof, are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have
been made for giving such notice; and
(c) Securities which shall have been paid or in
substitution for which other Securities shall have been authenticated
and delivered pursuant to the terms of Section 2.9 (except with
respect to any such Security as to which proof satisfactory to the
Trustee is presented that such Security is held by a person in whose
hands such Security is a legal, valid and binding obligation of the
Issuer).
In determining whether the Holders of the requisite principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof
that
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would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"Periodic Offering" means an offering of Securities of a
series from time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Issuer or its agents upon the
issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities or
any Security or any portion thereof, shall be deemed to include "and premium,
if any."
"Principal Property" means the land, improvements, buildings
and fixtures (including any leasehold interest therein) constituting the
principal corporate office, any manufacturing plant, any manufacturing,
distribution or research facility or self-serve center (in each case, whether
now owned or hereafter acquired) which is owned or leased by the Issuer or any
Subsidiary and is located within the United States of America or Canada unless
the Board of Directors of the Issuer has determined in good faith that such
office, plant, facility or center is not of material importance to the total
business conducted by the Issuer and its Subsidiaries taken as a whole. With
respect to any Sale and Lease-Back Transaction or series of related Sale and
Lease-Back Transactions, the determination of whether any property is a
Principal Property shall be determined by reference to all properties affected
by such transaction or series of transactions.
"record date" shall have the meaning set forth in Section 2.7.
"Registered Global Security" means a Security evidencing all
or a part of a series of Registered Securities, issued to the Depositary for
such series in accordance with Section 2.4, and bearing the legend prescribed
in Section 2.4.
"Registered Security" means any Security registered on the
Security register of the Issuer.
"Required Currency" shall have the meaning set forth in
Section 11.12.
"Responsible Officer" when used with respect to the Trustee
means the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any
vice president, (whether or not designated by numbers or words added before or
after the title "vice president"), the cashier, the secretary, the treasurer,
any trust officer, any assistant trust officer, any assistant vice president,
any assistant cashier, any assistant secretary, any assistant
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treasurer, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Sale and Lease-Back Transaction" means any arrangement with
any Person providing for the leasing by the Issuer or any Subsidiary of any
Principal Property which property has been or is to be sold or transferred by
the Issuer or such Subsidiary to such Person.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Subsidiary" means any corporation of which outstanding voting
stock having the power to elect a majority of the board of directors of such
corporation is at the time owned, directly or indirectly, by the Issuer or by
one or more other Subsidiaries, or by the Issuer and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article VI, shall also
include any agent of such trustee and any successor trustee. "Trustee" shall
also mean or include each Person who is then a trustee hereunder and if at any
time there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the trustee with respect to the Securities
of such series.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" shall have the meaning set forth
in Section 10.1(a).
"Yield to Maturity" means the yield to maturity (i) on a
series of Securities or (ii) if the Securities of a series are issuable from
time to time, on a Security of such series, calculated at the time of issuance
of such series in the case of clause (i) or at the time of issuance of such
Security of such series in the case of clause (ii), or, if applicable, at the
most recent redetermination of interest on such series or on such Security, and
calculated in accordance with the constant interest method or such other
accepted financial practice as is specified in the terms of such Security.
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ARTICLE II
SECURITIES
2.1 Forms Generally. The Securities of each series and
the Coupons, if any, to be attached thereto shall be substantially in such form
(not inconsistent with this Indenture) as shall be established by or pursuant
to one or more Board Resolutions (and to the extent established pursuant to
rather than set forth in a Board Resolution, in an Officer's Certificate
detailing such establishment) or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture and may have
imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as may be
required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and
Coupons.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any.
2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
Date:
"This is one of the Securities referred to in the
within-mentioned Indenture.
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as Trustee
By:
-------------------------
Authorized Signatory"
If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the Authenticating
Agent's certificate of authentication to be borne by the Securities of each
such series shall be substantially as follows:
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"This is one of the Securities referred to in the
within-mentioned Indenture.
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as Authenticating
Agent
By:
------------------------------
Authorized Officer"
2.3 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 and each
such series shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Issuer. There shall be established by or pursuant
to one or more Board Resolutions (and to the extent established pursuant to
rather than set forth in a Board Resolution, in an Officer's Certificate
detailing such establishment) or in one or more indentures supplemental hereto,
prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the
series, which shall distinguish the Securities of the series from the
Securities of all other series;
(2) any limit upon the aggregate principal
amount of the Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Section 2.8,
2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency
or units thereof in which the Securities of that series are
denominated (including, but not limited to, any Foreign Currency or
ECU);
(4) the date or dates on which the principal of
the Securities of the series is payable;
(5) the rate or rates at which the Securities of
the series shall bear interest, if any, the date or dates from which
such interest shall accrue, on which such interest shall be payable
and (in the case of Registered Securities) on which a record shall be
taken for the determination of Holders to whom interest is payable
and/or the method by which such rate or rates or date or dates shall
be determined;
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(6) the method by which amounts payable in
respect of principal, premium, if any, or interest, if any, on such
Securities may be calculated, and any currencies, commodities or
indices, or value, rate or price, relevant to such calculation;
(7) the place or places where the principal of
and any interest on Securities of the series shall be payable (if
other than as provided in Section 3.2);
(8) the right, if any, of the Issuer to redeem or
cause to be redeemed Securities of the series, in whole or in part, at
its option and the period or periods within which, the price or prices
(and/or method by which such price or prices shall be determined) at
which and any terms and conditions upon which and the manner in which
(if different from the provision of Article XII hereof), Securities of
the series may be so redeemed, pursuant to any sinking fund or
otherwise;
(9) the obligation, if any, of the Issuer to
redeem, purchase or repay Securities of the series, in whole or in
part, pursuant to any mandatory redemption, sinking fund or analogous
provisions or at the option of a Holder thereof and the price or
prices (and/or the method by which such price or prices shall be
determined) at which, the period or periods within which and any terms
and conditions upon which and the manner in which (if different from
the provisions of Article XII hereof) Securities of the series shall
be redeemed, purchased or repaid pursuant to such obligation;
(10) if other than denominations of $1,000 and any
integral multiple thereof in the case of Registered Securities, or
$1,000 and $5,000 in the case of Unregistered Securities, the
denominations in which Securities of the series shall be issuable;
(11) 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;
(12) if other than the coin or currency or units
thereof in which the Securities of that series are denominated, the
coin or currency or units thereof in which payment of the principal of
or interest on the Securities of such series shall be payable;
(13) if the principal of or interest on the
Securities of such series are to be payable, at the election of the
Issuer or a Holder thereof, in a coin or currency or units thereof
other than that in which the Securities are denominated, the period or
periods within which, and the terms and conditions upon which, such
election may be made;
(14) if the amount of payments of principal of
and/or interest on the Securities of the series may be determined with
reference to the value or price of any one or more commodities,
currencies or indices, the manner in which such amounts will be
determined;
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(15) whether the Securities of the series will be
issuable as Registered Securities (and if so, whether such Securities
will be issuable as Registered Global Securities) or Unregistered
Securities (with or without coupons), or any combination of the
foregoing, any restrictions applicable to the offer, sale or delivery
of Unregistered Securities or the payment of interest thereon and, if
other than as provided in Section 2.8, the terms upon which
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(16) whether and under what circumstances the
Issuer 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 Issuer will have the option to redeem such Securities
rather than pay such additional amounts;
(17) 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;
(18) any trustees, depositaries, authenticating
or paying agents, transfer agents or registrars or any other agents
with respect to the Securities of such series;
(19) any other events of default or covenants not
set forth herein with respect to the Securities of such series;
(20) the terms and conditions upon which and the
manner in which Securities of the series may be defeased or discharged
if different from the provisions set forth under the defeasance
provision herein;
(21) offices at which presentations and demands
may be made and notices may be served, if other than the Corporate
Trust Office of the Trustee; and
(22) any other terms of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto, shall be substantially identical, except in the case of
Registered Securities as to denomination and except as may otherwise be
provided by or pursuant to the Board Resolution or Officer's Certificate
referred to above or as set forth in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to such Board Resolution, such Officer's Certificate or
in any such indenture supplemental hereto.
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2.4 Authentication and Delivery of Securities. The Issuer
may deliver Securities of any series having attached thereto appropriate
Coupons, if any, executed by the Issuer to the Trustee for authentication
together with the applicable documents referred to below in this Section, and
the Trustee shall thereupon authenticate and deliver such Securities to or upon
the order of the Issuer (contained in the Issuer Order referred to below in this
Section) or pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by an Issuer Order. The maturity date, original
issue date, interest rate and any other terms of the Securities of such series
and Coupons, if any, appertaining thereto shall be determined by or pursuant to
such Issuer Order and procedures. If provided for in such procedures, such
Issuer Order may authorize authentication and delivery pursuant to oral or
electronic instructions from the Issuer or its duly authorized agent, which
instructions shall be promptly confirmed in writing. In authenticating such
Securities and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive (in the
case of subparagraphs 2, 3 and 4 below only at or before the time of the first
request of the Issuer to the Trustee to authenticate Securities of such series)
and (subject to Section 6.1) shall be fully protected in relying upon, unless
and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such
authentication and setting forth delivery instructions if the
Securities and Coupons, if any, are not to be delivered to the Issuer,
provided that, with respect to Securities of a series subject to a
Periodic Offering, (a) such Issuer Order may be delivered by the
Issuer to the Trustee prior to the delivery to the Trustee of such
Securities for authentication and delivery, (b) the Trustee shall
authenticate and deliver Securities of such series for original issue
from time to time, in an aggregate principal amount not exceeding the
aggregate principal amount established for such series, pursuant to an
Issuer Order or pursuant to procedures acceptable to the Trustee as
may be specified from time to time by an Issuer Order, (c) the
maturity date or dates, original issue date or dates, interest rate or
rates and any other terms of Securities of such series shall be
determined by an Issuer Order or pursuant to such procedures and (d)
if provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral or electronic
instructions from the Issuer or its duly authorized agent or agents,
which oral instructions shall be promptly confirmed in writing;
(2) any Board Resolution, Officer's Certificate
and/or executed supplemental indenture referred to in Sections 2.1 and
2.3 by or pursuant to which the forms and terms of the Securities and
Coupons, if any, were established;
(3) an Officer's Certificate setting forth the
form or forms and terms of the Securities and Coupons, if any, stating
that the form or forms and terms of the Securities and Coupons, if
any, have been established pursuant to Sections 2.1 and 2.3 and comply
with this Indenture, and covering such other matters as the Trustee
may reasonably request; and
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(4) At the option of the Issuer, either an
Opinion of Counsel, or a letter addressed to the Trustee permitting to
it rely on an Opinion of Counsel, substantially to the effect that:
(a) the forms of the Securities and
Coupons, if any, have been duly authorized and established in
conformity with the provisions of this Indenture;
(b) when the Securities and Coupons, if
any, have been executed by the Issuer and authenticated by the
Trustee in accordance with the provisions of this Indenture
and delivered to and paid for by the purchasers thereof, they
will be entitled to the benefits of this Indenture, will have
been duly issued under this Indenture and will be valid and
binding obligations of the Issuer, enforceable in accordance
with their respective terms; and
(c) the execution and delivery by the
Issuer of, and the performance by the Issuer of its
obligations under, the Securities and Coupons, if any, will
not contravene any provision of the certificate of
incorporation or bylaws of the Issuer or any agreement or
other instrument binding upon the Issuer or, to the best of
such counsel's knowledge, but without any independent
investigation, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Issuer, and no consent, approval or authorization of any
governmental body or agency is required for the performance by
the Issuer of its obligations under the Securities and
Coupons, if any, except such as are specified and have been
obtained and such as may be required by the securities or blue
sky laws of the various states in connection with the offer
and sale of the Securities and Coupons, if any.
In rendering such opinions, such counsel may qualify any
opinions as to enforceability by stating that such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting the rights and remedies of creditors and is
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Such
counsel may rely, as to all matters except those governed by the Federal law of
the United States, upon opinions of other counsel (copies of which shall be
delivered to the Trustee), who shall be counsel reasonably satisfactory to the
Trustee, in which case the opinion shall state that such counsel believes he
and the Trustee are entitled so to rely. Such counsel may also state that,
insofar as such opinion involves factual matters, he has relied, to the extent
he deems proper, upon certificates of officers of the Issuer and its
subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers
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shall determine that such action would expose the Trustee to personal liability
to existing Holders or would affect the Trustee's own rights, duties or
immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Registered Global Securities that (i)
shall represent and shall be denominated in an amount equal to the aggregate
principal amount of all or a portion of the Securities of such series issued
and not yet canceled or exchanged, (ii) shall be registered in the name of the
Depositary for such Registered Global Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security
may not be transferred except as a whole by the Depositary to the nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at
the time of its designation and at all times while it serves as Depositary, be
a clearing agency registered under the Securities Exchange Act of 1934 and any
other applicable law or regulation.
2.5 Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Issuer by the Chairman or Vice Chairman of its Board of Directors or its
President, any Vice President or its Treasurer, under its corporate seal
(except in the case of Coupons) which may, but need not, be attested. Such
signatures may be the manual or facsimile signatures of the present or any
future such officers. The seal of the Issuer may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and delivered
by the Trustee.
In case any officer of the Issuer who shall have signed any of
the Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or
Coupon had not ceased to be such officer of the Issuer; and any Security or
Coupon may be signed on behalf of the Issuer by such persons as, at the actual
date of the execution of such Security or Coupon, shall be the proper officers
of the Issuer, although at the date of the execution and delivery of this
Indenture any such person was not such an officer.
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2.6 Certificate of Authentication. Except as provided in
Section 6.13 hereof, only such Securities as shall bear thereon a certificate
of authentication substantially in the form hereinbefore recited, executed by
the Trustee by the manual signature of one of its authorized officers, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. No Coupon shall be entitled to the benefits of this Indenture or
shall be valid and obligatory for any purpose until the certificate of
authentication on the Security to which such Coupon appertains shall have been
duly executed by the Trustee. The execution of such certificate by the Trustee
upon any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture.
2.7 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations as shall be specified
pursuant to Section 2.3 or, with respect to the Registered Securities of any
series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series
are not so established, such Securities shall be issuable in denominations of
$1,000 and $5,000. The Securities of each series shall be numbered, lettered
or otherwise distinguished in such manner or in accordance with such plan as
the officers of the Issuer executing the same may determine with the approval
of the Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as specified
pursuant to Section 2.3. The Securities of each series shall bear interest, if
any, from the date, and such interest shall be payable on the dates,
established as contemplated by Section 2.3.
The Person in whose name any Registered Security of any series
is registered at the close of business on any record date applicable to such
series with respect to any interest payment date for such series shall be
entitled to receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Registered Security subsequent
to the record date and prior to such interest payment date, except in the case
of any such transfer or exchange if and to the extent the Issuer shall default
in the payment of the interest due on such interest payment date for such
series, in which case such defaulted interest shall be paid to the Persons in
whose names Outstanding Registered Securities for such series are registered at
the close of business on a subsequent record date (which shall be not less than
five Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the
Holders of Registered Securities not less than 15 days preceding such
subsequent record date. The term "record date" as used with respect to any
interest payment date (except a date for payment of defaulted interest) for the
Securities of any series shall mean the date specified as such in the terms of
the Registered Securities of such series, or, if no such date is so specified,
if such interest payment date is the first day of a calendar month, the
fifteenth day of the next preceding calendar month or, if such interest payment
date is the fifteenth day of a calendar month, the first day of such calendar
month, whether or not such record date is a Business Day.
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2.8 Registration, Transfer and Exchange. The Issuer will
keep at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide for
the registration of Registered Securities of such series and the registration
of transfer of Registered Securities of such series. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times
such register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to be maintained
for the purpose as provided in Section 3.2, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same
series, of like tenor, in authorized denominations for a like aggregate
principal amount.
Unregistered Securities (except for any temporary global
Unregistered Securities) and Coupons (except for Coupons attached to any
temporary global Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, any Security may be
exchanged as provided below for a Security of the same series, in authorized
denominations, of like tenor and in an equal aggregate principal amount upon
surrender of such Security at an office or agency to be maintained for such
purpose in accordance with Section 3.2 or as specified pursuant to Section 2.3,
and the Issuer shall execute, and the Trustee shall authenticate and deliver in
exchange therefor, the Security or Securities which the Holder making the
exchange shall be entitled to receive bearing a number or other distinguishing
symbol not contemporaneously outstanding. Subject to the foregoing, (i) a
Registered Security of any series (other than a Registered Global Security,
except as set forth below) may be exchanged for a Registered Security or
Securities of the same series; (ii) if the Securities of any Series are issued
in both registered and unregistered form, except as otherwise specified
pursuant to Section 2.3, an Unregistered Security may be exchanged for a
Registered Security or Securities of the same series, but a Registered Security
may not be exchanged for an Unregistered Security or Securities; and (iii) if
Unregistered Securities of any series are issued in more than one authorized
denomination, except as otherwise specified pursuant to Section 2.3, any such
Unregistered Security may be exchanged for an Unregistered Security or
Securities of the same series; provided that in connection with the surrender
of any Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default must be surrendered with the
Securities being exchanged.
All Registered Securities presented for registration of
transfer, exchange, redemption, repurchase or payment shall (if so required by
the Issuer or the Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Issuer and
the Trustee duly executed by the Holder or his attorney duly authorized in
writing.
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The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such
series to be redeemed or (b) any Securities selected, called or being called
for redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8,
unless and until it is exchanged in whole or in part for Securities in
definitive registered form, a Registered Global Security representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of
a series represented by one or more Registered Global Securities notifies the
issuer that it is unwilling or unable to continue as Depositary for such
Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary eligible under Section 2.4 with respect to such
Registered Securities. If a successor Depositary eligible under Section 2.4
for such Registered Securities is not appointed by the Issuer within 90 days
after the Issuer receives such notice or becomes aware of such ineligibility,
the Issuer's election pursuant to Section 2.3 that such Registered Securities
be represented by one or more Registered Global Securities shall no longer be
effective and the Issuer will execute, and the Trustee, upon receipt of an
Officer's Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive registered form without Coupons, in any authorized
denominations, of like tenor, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities representing
such Registered Securities in exchange for such Registered Global Security or
Securities.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of any series issued in the form of
one or more Registered Global Securities shall no longer be represented by a
Registered Global Security or Securities. In such event the Issuer will
execute, and the Trustee, upon receipt of an Officer's Certificate for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered
form without Coupons, in any authorized denominations, of like tenor, in an
aggregate principal amount equal to the principal amount of the Registered
Global Security or Securities representing such Registered Securities, in
exchange for such Registered Global Security or Securities.
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If specified by the Issuer pursuant to Section 2.3 with
respect to Securities represented by a Registered Global Security, the
Depositary for such Registered Global Security may surrender such Registered
Global Security in exchange in whole or in part for Securities of the same
series in definitive registered form on such terms as are acceptable to the
Issuer and such Depositary. Thereupon, the Issuer shall execute, and the
Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a
new Registered Security or Securities of the same series, of any
authorized denominations as requested by such Person, of like tenor,
in an aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Registered Global Security; and
(ii) to such Depositary a new Registered Global
Security in a denomination equal to the difference, if any, between
the principal amount of the surrendered Registered Global Security and
the aggregate principal amount of Registered Securities authenticated
and delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without coupons, of like tenor, in
authorized denominations, such Registered Global Security shall be canceled by
the Trustee or an agent of the Issuer or the Trustee. Securities in definitive
registered form without coupons issued in exchange for a Registered Global
Security pursuant to this Section 2.8 shall be registered in such names and in
such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Issuer or the Trustee.
The Trustee or such agent shall deliver such Securities to or as directed by
the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series
of Securities to the contrary, none of the Issuer, the Trustee or any agent of
the Issuer or the Trustee (any of which, other than the Issuer, shall rely on
an Officer's Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for any Outstanding Registered Security if
such exchange would result in adverse Federal income tax consequences to the
Issuer (such as, for example, the inability of the Issuer to deduct from its
income, as computed for Federal income tax purposes, the interest payable on
the Unregistered Securities) under then applicable United States Federal income
tax laws.
2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall become mutilated, defaced or be destroyed,
lost or stolen, the Issuer in its discretion may execute, and upon the written
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request of any officer of the Issuer, the Trustee shall authenticate and
deliver a new Security of the same series, of like tenor, bearing a number or
other distinguishing symbol not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen with Coupons
corresponding to the Coupons appertaining to the Securities so mutilated,
defaced, destroyed, lost or stolen, or in exchange or substitution for the
Security to which such mutilated, defaced, destroyed, lost or stolen Coupon
appertained, with Coupons appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every case the applicant for
a substitute Security or Coupon shall furnish to the Issuer and to the Trustee
and any agent of the Issuer or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless and,
in every case of destruction, loss or theft, evidence to their satisfaction of
the destruction, loss or theft of such Security or Coupon and of the ownership
thereof and in the case of mutilation or defacement shall surrender the
Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the
Issuer may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) or its agent
connected therewith. In case any Security or Coupon which has matured or is
about to mature or has been called for redemption in full shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer may instead of
issuing a substitute Security, pay or authorize the payment of the same or the
relevant Coupon (without surrender thereof except in the case of a mutilated or
defaced Security or Coupon), if the applicant for such payment shall furnish to
the Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of then may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the
Trustee evidence to their satisfaction of the destruction, loss or theft of
such Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued
pursuant to the provisions of this Section by virtue of the fact that any such
Security or Coupon is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Security or Coupon shall be at any time enforceable by anyone and shall
be entitled to all the benefits of (but shall be subject to all the limitations
of rights set forth in) this Indenture equally and proportionately with any and
all other Securities or Coupons of such series duly authenticated and delivered
hereunder. All Securities and Coupons shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced or
destroyed, lost or stolen Securities and Coupons and shall 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.
2.10 Cancellation of Securities; Destruction Thereof. All
Securities and Coupons surrendered for payment, repurchase, redemption,
registration of transfer or exchange, or for credit against any payment in
respect of a sinking or analogous fund, if surrendered to the Issuer or any
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agent of the Issuer or the Trustee or any agent of the Trustee, shall be
delivered to the Trustee or its agent for cancellation or, if surrendered to
the Trustee, shall be cancelled by it; and no Securities or Coupons shall be
issued in lieu thereof except as expressly permitted by any of the provisions
of this Indenture. The Trustee or its agent shall destroy cancelled Securities
and Coupons held by it and deliver a certificate of destruction to the Issuer.
If the Issuer or its agent shall acquire any of the Securities or Coupons, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities or Coupons unless and until the
same are delivered to the Trustee or its agent for cancellation.
2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without coupons, or as Unregistered
Securities with or without coupons attached thereto, of any authorized
denomination, and substantially in the form of the definitive Securities of
such series but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Issuer
with the concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such references to
any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Issuer 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 unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of such series may be surrendered in exchange
therefor without charge, in the case of Registered Securities, at each office
or agency to be maintained by the Issuer for that purpose pursuant to Section
3.2 and, in the case of Unregistered Securities, at any office or agency
maintained by the Issuer for such purpose as specified pursuant to Section 2.3,
and the Trustee shall authenticate and deliver in exchange for such temporary
Securities of such series an equal aggregate principal amount of definitive
Securities of the same series having authorized denominations and, in the case
of Unregistered Securities, having attached thereto any 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,
unless otherwise established pursuant to Section 2.3. The provisions of this
Section are subject to any restrictions or limitations that may be established
with respect to the Securities of any series pursuant to Section 2.3 (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 located outside the United States and the procedures
pursuant to which definitive or global Unregistered Securities of such series
would be issued in exchange for such temporary global Unregistered Security).
2.12 CUSIP Numbers. The Issuer in issuing the Securities
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other
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identification numbers printed on the Securities, and any such notice of
redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE III
COVENANTS OF THE ISSUER
3.1 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on,
each of the Securities of such series (together with any additional amounts
payable pursuant to the terms of such Securities) at the place or places, at
the respective times and in the manner provided in such Securities and in the
Coupons appertaining thereto and in this Indenture. The interest on
Unregistered Securities with Coupons attached shall be payable only upon
presentation and surrender of the Coupons evidencing the right to such
installment of interest as they severally mature. If any temporary
Unregistered Security provides that interest thereon may be paid while such
Security is in temporary form, the interest on any such temporary Unregistered
Security 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, in each case
subject to any restrictions that may be established pursuant to Section 2.3.
The interest on Registered Securities (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only to or
upon the written order of the Holders entitled thereto and, at the option of
the Issuer, may be paid by wire transfer or by mailing checks for such interest
payable to or upon the written order of such Holders at their last addresses as
they appear on the registry books of the Issuer.
3.2 Offices for Payments, etc. The Issuer will maintain
in the Borough of Manhattan, The City of New York, an agency where the
Registered Securities of each series may be presented for payment, an agency
where the Securities of each series may be presented for exchange as is
provided in this Indenture and, if applicable, pursuant to Section 2.3 an
agency where the Registered Securities of each series may be presented for
registration of transfer as in this Indenture provided.
The Issuer will 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 the Unregistered
Securities, if any, of each series and Coupons, if any, appertaining thereto
may be presented for payment. No payment on any Unregistered Security or
Coupon will be made upon presentation of such Unregistered Security or Coupon
at an agency of the Issuer within the United States nor will any payment be
made by transfer to an account in, or by mail to an address in, the United
States unless pursuant to applicable United States laws and regulations then in
effect such payment can be made without adverse tax consequences to the Issuer.
Notwithstanding the foregoing, payments in
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Dollars of Unregistered Securities of any series and Coupons appertaining
thereto which are payable in Dollars may be made at an agency of the Issuer
maintained in the Borough of Manhattan, The City of New York if such payment in
Dollars at each agency maintained by the Issuer outside the United States for
payment on such Unregistered Securities is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City
of New York, an agency where notices and demands to or upon the Issuer in
respect of the Securities of any series, the Coupons appertaining thereto or
this Indenture may be served.
The Issuer will give to the Trustee written notice of the
location of each such agency and of any change of location thereof. In case
the Issuer shall fail to maintain any agency required by this Section to be
located 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 of any of the
above agencies, presentations and demands may be made and notices may be served
at the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more
additional agencies where the Securities of a series and Coupons appertaining
thereto may be presented for payment, where the Securities of that series may
be presented for exchange as provided in this Indenture and where the
Registered Securities of that series may be presented for registration of
transfer as in this Indenture provided, and the Issuer may from time to time
rescind any such designation, as the Issuer may deem desirable or expedient;
provided, however, that no such designation or rescission shall in any manner
relieve the Issuer of its obligation to maintain the agencies provided for in
the immediately preceding paragraphs. The Issuer will give to the Trustee
prompt written notice of any such designation or rescission thereof.
3.3 Appointment to Fill a Vacancy in Office of Trustee.
The Issuer, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee with respect to each series of
Securities hereunder.
3.4 Paying Agents. Whenever the Issuer shall appoint a
paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section that such paying agent,
(a) will hold all sums received by it as such
agent for the payment of the principal of or interest on the
Securities of such series (whether such sums have been paid to it by
the Issuer or by any other obligor on the Securities of such series)
in trust for the benefit of the Holders of the Securities of such
series, or Coupons appertaining thereto, or of the Trustee, until such
sums shall be paid to such holders or otherwise disposed of as herein
provided;
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(b) will give the Trustee notice of any failure
by the Issuer (or by any other obligor on the Securities of such
series) to make any payment of the principal of or interest on the
Securities of such Series when the same shall be due and payable, and
(c) at any time during the continuance of any
such failure, upon the written request of the Trustee, it will
forthwith pay to the Trustee all sums so held in trust by such paying
agent.
The Issuer will, on or prior to each due date of the principal
of or interest on the Securities of such series, deposit with the paying agent
a sum sufficient to pay such principal or interest so becoming due, and (unless
such paying agent is the Trustee) the Issuer will promptly notify the Trustee
of its action or any failure to take such action.
If the Issuer shall act as its own paying agent with respect
to the Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the Holders of the Securities of such
series or the Coupons appertaining thereto a sum sufficient to pay such
principal or interest so becoming due. The Issuer will promptly notify the
Trustee of its action or any failure to take such action.
Anything in this Section to the contrary notwithstanding, the
Issuer 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, or by Issuer Order direct any
paying agent to pay to the Trustee all sums held in trust for any such series
by the Issuer or any paying agent hereunder, as required by this Section, such
sums to be held by the Trustee upon the trusts herein contained.
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 10.3 and 10.4.
3.5 Written Statement to Trustee. The Issuer will
deliver to the Trustee annually, commencing June 15, 1996, a certificate, from
its principal executive officer, principal financial officer or principal
accounting officer, stating whether or not to the best knowledge of the signer
thereof the Issuer is in compliance (without regard to periods of grace or
notice requirements) with all conditions and covenants under this Indenture,
and if the Issuer shall not be in compliance, specifying such non-compliance
and the nature and status thereof of which such signer may have knowledge.
3.6 Luxembourg Publications. In the event of the
publication of any notice pursuant to Section 5.11, 6.10(a), 6.11, 8.2, 10.4,
12.2 or 12.5, the party making such publication in the Borough of Manhattan,
The City of New York and London shall also, to the extent that notice is
required to be given to Holders of Securities of any series by applicable
Luxembourg law or stock
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exchange regulation, as evidenced by an Officer's Certificate delivered to such
party, make a similar publication in Luxembourg.
3.7 Certain Covenants Applicable to the Securities;
Limitations on Liens. The Issuer covenants in this Indenture that it will not,
and will not permit any Subsidiary to, issue, incur, create, assume or
guarantee any debt for borrowed money (including all obligations evidenced by
bonds, debentures, notes or similar instruments) secured by a mortgage,
security interest, pledge, lien, charge or other encumbrance ("mortgage") upon
any Principal Property or upon any shares of stock or indebtedness of any
Subsidiary that owns or leases a Principal Property (whether such Principal
Property, shares or indebtedness are now existing or owed or hereafter created
or acquired) without in any such case effectively providing concurrently with
the issuance, incurrence, creation, assumption or guaranty of any such secured
debt, or the grant of such mortgage, that the Securities (together with, if the
Issuer shall so determine, any other indebtedness of or guarantee by the Issuer
or such Subsidiary ranking equally with the Securities) shall be secured
equally and ratably with (or, at the option of the Issuer, prior to) such
secured debt. The foregoing restriction, however, will not apply to each of
the following: (a) mortgages on property, shares of stock or indebtedness or
other assets of any corporation existing at the time such corporation becomes a
Subsidiary, provided that such mortgages or liens are not incurred in
anticipation of such corporation's becoming a Subsidiary; (b) mortgages on
property, shares of stock or indebtedness or other assets existing at the time
of acquisition thereof by the Issuer or a Subsidiary or to secure the payment
of all or any part of the purchase price thereof, or mortgages on property,
shares of stock or indebtedness or other assets to secure any debt incurred
prior to, at the time of, or within 180 days after, the latest of the
acquisition thereof or, in the case of property, the completion of
construction, the completion of improvements or the commencement of substantial
commercial operation of such property for the purpose of financing all or any
part of the purchase price thereof, such construction or the making of such
improvements; (c) mortgages to secure indebtedness owing to the Issuer or to a
Subsidiary; (d) mortgages existing at the date of the initial issuance of any
Securities then outstanding; (e) mortgages on property of a Person existing at
the time such Person is merged into or consolidated with the Issuer or a
Subsidiary or at the time of a sale, lease or other disposition of the
properties of a Person as an entirety or substantially as an entirety to the
Issuer or a Subsidiary provided that such mortgage was not incurred in
anticipation of such merger or consolidation or sale, lease or other
disposition; (f) mortgages in favor of the United States of America or any
state, territory or possession thereof (or the District of Columbia), or any
department, agency, instrumentality or political subdivision of the United
States of America or any state, territory or possession thereof (or the
District of Columbia), to secure partial, progress, advance or other payments
pursuant to any contract or statute or to secure any indebtedness incurred for
the purpose of financing all or any part of the purchase price or the cost of
constructing or improving the property subject to such mortgages; or (g)
extensions, renewals or replacements of any mortgage referred to in the
foregoing clauses (a), (b), (d), (e) or (f); provided, however, that the
principal amount of indebtedness secured thereby shall not exceed the principal
amount of indebtedness so secured at the time of such extension, renewal or
replacement. Any mortgages permitted by any of the foregoing clauses (a)
through (g) shall not extend to or cover any Principal Property of the Issuer
or such Subsidiary or shares of stock or
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indebtedness of such Subsidiary, as the case may be, other than the property,
including improvements thereto, stock or indebtedness specified in such
clauses.
Notwithstanding the restrictions outlined in the preceding
paragraph, the Issuer or any Subsidiary will be permitted to issue, incur,
create, assume or guarantee debt secured by a mortgage which would otherwise be
subject to such restrictions, without equally and ratably securing the
Securities, provided that after giving effect thereto, the aggregate amount of
all debt so secured by mortgages (not including mortgages permitted under
clauses (a) through (g) above) does not exceed 20% of the Consolidated Net
Tangible Assets of the Issuer.
3.8 Limitations on Sale and Lease-Back Transactions. The
Issuer covenants that it will not, nor will it permit any Subsidiary to, enter
into any Sale and Lease-Back Transaction with respect to any Principal
Property, other than any such transaction involving a lease for a term of not
more than three years or any such transaction between the Issuer and a
Subsidiary or between Subsidiaries, unless: (a) the Issuer or such Subsidiary
would be entitled to incur indebtedness secured by a mortgage on the Principal
Property involved in such transaction at least equal in amount to the
Attributable Debt with respect to such Sale and Lease-Back Transaction, without
equally and ratably securing the Securities, pursuant to the limitation on
liens described above; or (b) the proceeds of such transaction are at least
equal to the fair market value of the affected Principal Property (as
determined in good faith by the Board of Directors of the Issuer) and the
Issuer applies an amount equal to the greater of the net proceeds of such sale
or the Attributable Debt with respect to such Sale and Lease-Back Transaction
within 180 days of such sale to either (or a combination of) (i) the retirement
(other than any mandatory retirement, mandatory prepayment or sinking fund
payment or by payment at maturity) of debt for borrowed money of the Issuer or
a Subsidiary (other than debt that is subordinated to the Securities or debt to
the Issuer or a subsidiary) that matures more than 12 months after its creation
of such debt or (ii) the purchase, construction or development of other
comparable property.
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS
BY THE ISSUER AND THE TRUSTEE
4.1 Issuer to Furnish Trustee Information As to Names and
Addresses of Securityholders. If and so long as the Trustee shall not be the
Security registrar for the Securities of any series, the Issuer and any other
obligor on the Securities will furnish or cause to be furnished to the Trustee
a list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of the Registered Securities of such series pursuant
to Section 312 of the Trust Indenture Act of 1939 (a) semi-annually not more
than 15 days after each record date for the payment of interest on such
Registered Securities, as hereinabove specified, as of such record date and on
dates to be determined pursuant to Section 2.3 for non-interest bearing
Registered Securities in each year, and (b) at such other times as the Trustee
may request in writing, within thirty days
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after receipt by the Issuer of any such request as of a date not more than 15
days prior to the time such information is furnished.
4.2 Reports by the Issuer. The Issuer covenants to file
with the Trustee, within 15 days after the Issuer is required to file the same
with the Commission, copies of the annual reports and of the information,
documents, and other reports that the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 or pursuant to Section 314 of the Trust Indenture Act of 1939.
4.3 Reports by the Trustee. Any Trustee's report
required under Section 313(a) of the Trust Indenture Act of 1939 shall be
transmitted on or before January 15 in each year beginning January 15, 1996, as
provided in Section 313(c) of the Trust Indenture Act of 1939, so long as any
Securities are Outstanding hereunder, and shall be dated as of a date
convenient to the Trustee no more than 60 days prior thereto.
ARTICLE V
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default. "Event of Default" with respect to Securities of any series
wherever used herein, means each one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any installment of
interest 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 30 days; or
(b) default in the payment of all or any part of
the principal on any of the Securities of such series as and when the
same shall become due and payable either at maturity, upon any
redemption, by declaration or otherwise; or
(c) failure on the part of the Issuer duly to
observe or perform any other of the covenants or agreements on the
part of the Issuer in the Securities of such series (other than a
covenant or agreement in respect of the Securities of such series a
default in the performance or breach of which is elsewhere in this
Section specifically dealt with) or in this Indenture contained for a
period of 90 days after the date on which written notice specifying
such failure, stating that such notice is a "Notice of Default"
hereunder and demanding that the Issuer remedy the same, shall have
been given by registered or certified mail, return
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receipt requested, to the Issuer by the Trustee, or to the Issuer and
the Trustee by the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities of all series affected thereby;
or
(d) a court having jurisdiction in the premises
shall enter a decree or order for relief in respect of the Issuer in
an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Issuer or for any substantial part of its
property or ordering the winding up or liquidation of its affairs, and
such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or
(e) the Issuer shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or consent to the entry of an order for relief
in an involuntary case under any such law or consent to the
appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Issuer
or for any substantial part of its property, or make any general
assignment for the benefit of creditors; or
(f) any other Event of Default provided in the
supplemental indenture under which such series of Securities is issued
or in the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c) or
(f) (if the Event of Default under clause (c) or (f), as the case may be, is
with respect to less than all series of Securities then Outstanding) occurs and
is continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding
hereunder (voting as a single class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of all such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration, the same shall become immediately due and payable. If an
Event of Default described in clause (c) or (f) (if the Event of Default under
clause (c) or (f), as the case may be, is with respect to all series of
Securities then Outstanding), occurs and is continuing, then and in each and
every such case, unless the principal of all the Securities shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of all the Securities then outstanding hereunder
(treated as one class), by notice in writing to the Issuer (and to the Trustee
if given by Securityholders), may declare the entire principal (or, if any
securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities then
Outstanding, and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable. If an Event of Default specified in Section 5.1(d) or (e)
occurs, the principal of and accrued
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interest on the Securities shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Securityholder.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of the Securities of any
series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of such series (or of
all the Securities, as the case may be) and the principal of any and all
Securities of each such series (or of all the Securities, as the case may be)
which shall have become due otherwise than by acceleration (with interest upon
such principal and on overdue installments of interest, at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of each such series (or at the
respective rates of interest or Yields to Maturity of all the Securities, as
the case may be) to the date of such payment or deposit) and such amount as
shall be sufficient to cover reasonable compensation to the Trustee and each
predecessor Trustee, its agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith, and if any
and all Events of Default under the Indenture, other than the non-payment of
the principal of Securities which shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided herein, then and in
every such case the Holders of a majority in aggregate principal amount of all
the Securities of each such series, or of all the Securities, in each case
voting as a single class, then Outstanding, by written notice to the Issuer and
to the Trustee, may waive all defaults with respect to each such series (or
with respect to all the 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.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such acceleration, and
payment of such portion of the principal thereof as shall be due and payable as
a result of such acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full of such
Original Issue Discount Securities.
5.2 Collection of Indebtedness by Trustee; Trustee May
Prove Debt. The Issuer covenants that (a) in case default shall be made in the
payment of any installment of interest on any of the Securities of any series
when such interest shall have become due and payable, and such default shall
have continued for a period of 30 days or (b) in case default shall be made in
the payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity
of the Securities of such series or upon any
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redemption or by declaration or otherwise, then upon demand of the Trustee, the
Issuer will pay to the Trustee for the benefit of the Holders of the Securities
of such series the whole amount that then shall have become due and payable on
all Securities of such series, and such Coupons, for principal or interest, as
the case may be (with interest to the date of such payment upon the overdue
principal and on overdue installments of interest at the same rate as the rate
of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series); and in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee and
each predecessor Trustee, their respective agents, attorneys and counsel, and
any expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to the Holders,
whether or not the principal of and interest on the Securities of such series
be overdue.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon the Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon the Securities, wherever situated
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law, or in case a receiver, liquidator,
assignee, custodian, or trustee, sequestrator or similar official shall have
been appointed for or taken possession of the Issuer or its property or such
other obligor, or in case of any other comparable judicial proceedings relative
to the Issuer or other obligor upon the Securities, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such proceedings
or otherwise:
(a) to file and prove a claim or claims for the
whole amount of principal and interest (or, if the Securities of any
series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series)
owing and unpaid in respect of the Securities of any series, and to
file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee,
and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as
a result of gross negligence or bad faith) and of the Securityholders
allowed in any
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judicial proceedings relative to the Issuer or other obligor upon the
Securities, or to the creditors or property of the Issuer or such
other obligor,
(b) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of the Securities of any
series in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or person performing similar functions in
comparable proceedings, and
(c) 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
and of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized
by each of the Securityholders to make payments to the Trustee, and,
in the event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except as a
result of gross negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or Coupons appertaining
to such Securities, may be enforced by the Trustee without the possession of
any of the Securities of such series or Coupons appertaining to such Securities
or the production thereof in any trial or other proceedings relative thereto,
and any such action or proceedings instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment,
subject to the payment of the expenses, disbursements and compensation of the
Trustee, each predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the Securities or Coupons
appertaining to such Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities and Coupons appertaining to such Securities in
respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities
parties to any such proceedings.
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5.3 Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of any series shall be applied
in the following order at the date or dates fixed by the Trustee and, in case
of the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to
such series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee
and their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee and their respective agents and attorneys except
as a result of gross negligence or bad faith;
SECOND: In case the principal of the Securities of such
series in respect of which moneys have been collected shall not have
become and be then due and payable, to the payment of interest on the
Securities of such series in default 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 or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
Persons entitled thereto, without discrimination or preference);
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal
and interest, with interest upon the overdue principal, and (to the
extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; 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 interest, without preference or priority of
principal over interest, or of interest over principal, or of any
installment of interest over any other installment of interest, or of
any Security of such series over any other Security of such series,
ratably to the aggregate of such principal and accrued and unpaid
interest; and
FOURTH: To the payment of the remainder, if any, to the Issuer
or any other Person lawfully entitled thereto.
5.4 Suits for Enforcement. In case an Event of Default
has occurred, has not been waived and is continuing, 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
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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.
5.5 Restoration of Rights on Abandonment of Proceedings.
In case the Trustee or any Securityholder shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been finally determined adversely to
the Trustee or such Securityholder, then and in every such case subject to any
determination in such proceedings, the Issuer and the Trustee or such
Securityholder shall be restored respectively to their former positions and
rights hereunder, and all rights, remedies and powers of the Issuer, the
Trustee and the Securityholders shall continue as though no such proceedings
had been taken.
5.6 Limitations on Suits 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 proceeding 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, liquidator, assignee, custodian, trustee,
sequestrator or other similar official or for any other remedy hereunder,
unless (i) such Holder previously shall have given to the Trustee written
notice of default and of the continuance thereof, as hereinbefore provided;
(ii) the Holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding (treated as a single class) shall
have made written request upon the Trustee to institute such action or
proceedings in its own name as trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby; (iii) the Trustee for 60
days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action or proceeding; and (iv) no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 5.9; it being understood and intended, and being expressly
covenanted by the taker and Holder of every Security or Coupon with every other
taker and Holder and the Trustee, that no one or more Holders of Securities of
any series or Coupons appertaining to such Securities shall have any right in
any manner whatever by virtue or by availing of any provision of this Indenture
to affect, disturb or prejudice the rights of any other such 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 of any
applicable series and Coupons appertaining to such Securities. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
5.7 Unconditional Right of Securityholder to Institute
Certain Suits. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security or Coupon to
receive payment of the principal of and interest on such Security or coupon on
or after the respective due dates expressed in such Security or Coupon, or to
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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.
5.8 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 5.6, no right or remedy
herein conferred upon or reserved to the trustee or to the Holders of
Securities or Coupons is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
No delay or omission of the Trustee or of any Holder of
Securities or Coupons to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every power and remedy given
by this Indenture 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.
5.9 Control by Holders of Securities. The Holders of a
majority in aggregate principal amount of the Securities of each series
affected (with all such series voting as a single 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 with respect to the
Securities of such series by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and provided further that (subject to the provisions of Section 6.1)
the Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors, the executive committee, or a trust committee
of directors or Responsible Officers of the Trustee shall determine that the
action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the actions
or forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all series so
affected not joining in the giving of said direction, it being understood that
(subject to Section 6.1) the Trustee shall have no duty to ascertain whether or
not such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by Securityholders.
5.10 Waiver of Past Defaults. Prior to the acceleration
of the maturity of any Securities as provided in Section 5.1, the Holders of a
majority in aggregate principal amount of the Securities of all series at the
time Outstanding with respect to which a default or an Event of Default
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shall have occurred and be continuing (voting as a single class) may on behalf
of the Holders of all such Securities waive any past default or Event of
Default described in Section 5.1 and its consequences, except a default (a) in
the payment of principal or interest on any Security of such series or (b) in
respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Security affected. In the case of
any such waiver, the Issuer, the Trustee and the Holders of all such Securities
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
5.11 Trustee to Give Notice of Default, But May Withhold
in Certain Circumstances. The Trustee shall, within 90 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 3.6, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Registered Securities of
such series as the names and addresses of such Holders appear upon the registry
books of the Issuer, and to other Holders of Securities of such series as have
filed their names and addresses with the Trustee within two years preceding the
giving of such notice, 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 mean any event or condition
which is, or with notice or lapse of time or both would become, an Event of
Default); provided that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such series, or in the
payment of any sinking fund installment on 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 trustees and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the best interests of the Securityholders of
such Series.
5.12 Right of Court to Require Filing of Undertaking to
Pay Costs. All parties to this Indenture agree, and each Holder of any
Security or Coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit 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 Securityholder or
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group of Securityholders of any series holding in the aggregate more than 10%
in aggregate principal amount of the Securities of such series, or, in the case
of any suit relating to or arising under clause (c) or (f) of Section 5.1 (if
the suit relates to Securities of more than one but less than all series), 10%
in aggregate principal amount of Securities then Outstanding and affected
thereby, or in the case of any suit relating to or arising under clause (c) or
(f) (if the suit under clause (c) or (f) relates to all the Securities then
outstanding), of Section 5.1, 10% in aggregate principal amount of all
Securities then Outstanding, or to any suit instituted by any Securityholder
for the enforcement of the payment of the principal of or interest or, any
Security on or after the due date expressed in such Security or any date fixed
for redemption.
ARTICLE VI
CONCERNING THE TRUSTEE
6.1 Duties and Responsibilities of the Trustee; Prior to
Default. With respect to the Holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of such series and after the curing or waiving of all
Events of Default which may have occurred with respect to such series,
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 the
Securities of a series has occurred (which has not been cured or waived) the
Trustee shall exercise with respect to such series of Securities 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 grossly negligent action, its own
grossly negligent failure to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of
Default with respect to the Securities of any series and after the
curing or waiving of all such Events of Default with respect to such
series which may have occurred:
(i) the duties and obligations of the
Trustee with respect to the Securities of any series shall be
determined solely by the express provisions of this Indenture,
and the Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the
part of the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the
opinions expressed therein, upon any statements, certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in
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the case of any such statements, 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 Responsible
Officers of the Trustee, unless it shall be proved that the Trustee
was grossly 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 pursuant to Section 5.9
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.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and
subject to Section 315 of the Trust Indenture Act of 1939.
6.2 Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 6.1:
(a) the Trustee may rely and shall be protected
in acting or refraining from acting upon any resolution, Officer's
Certificate or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, debenture, note,
coupon, security or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of
the Issuer mentioned herein shall be sufficiently evidenced by an
Officer's Certificate or Issuer Order (unless other evidence in
respect thereof be herein specifically prescribed); and any resolution
of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the
Issuer;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an
Officer's Certificate;
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(d) the Trustee may consult with counsel and any
written advice or any opinion of counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in reliance
thereon in accordance with such advice or opinion of counsel;
(e) the Trustee shall be under no obligation to
exercise any of the trusts 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;
(f) the Trustee shall not be liable for any
action taken or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon
it by this Indenture;
(g) prior to the occurrence of an Event of
Default hereunder and after the curing or waiving of all Events of
Default, 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, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders
of not less than a majority in aggregate principal amount of the
Securities of all series affected then Outstanding; provided that, if
the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against
such expenses or liabilities as a condition of proceeding; the
reasonable expenses of every such investigation shall be paid by the
Issuer or, if paid by the Trustee or any predecessor Trustee, shall be
repaid by the Issuer upon demand; and
(h) 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 not regularly in its employ and the
Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it
hereunder.
6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities or Coupons. The Trustee shall not be accountable for the use or
application by the Issuer of any of the Securities or of the proceeds thereof.
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6.4 Trustee and Agents May Hold Securities or Coupons;
Collections; etc. The Trustee or any agent of the Issuer or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities or Coupons with the same rights it would have if it were not the
Trustee or such agent and may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it
would have if it were not the Trustee or such agent.
6.5 Moneys Held by Trustee. Subject to the provisions of
Section 10.4 hereof, all moneys received by the Trustee 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 mandatory provisions of law. Such moneys shall be invested in
accordance with the Issuer's written instructions. Neither the Trustee nor any
agent of the Issuer or the Trustee shall be under any liability for interest on
any moneys received by it hereunder.
6.6 Compensation and Indemnification of Trustee and Its
Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time
to time, and the Trustee shall be entitled to, such compensation as shall be
agreed to in writing between the Issuer and the Trustee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any and all loss, liability or expense,
including taxes (other than taxes based upon or measured by the income of the
Trustee) incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this Indenture or the
trusts hereunder and its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim of liability in the
premises. The obligations of the Issuer under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional indebtedness
shall be a senior claim 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, and the Securities
are hereby subordinated to such senior claim.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(d) or Section
5.1(e), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
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6.7 Right of Trustee to Rely on Officer's Certificate,
etc. Subject to Sections 6.1 and 6.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that
a matter be proved or established prior to taking or suffering or omitting any
action 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, he deemed to be conclusively proved and established
by an Officer's 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.
6.8 Indentures Not Creating Potential Conflicting
Interests for the Trustee. As of the date hereof, the Issuer has no
outstanding debt securities issued pursuant to an indenture of which the
Trustee is the trustee.
6.9 Persons Eligible for Appointment as Trustee. The
Trustee for each series of Securities hereunder shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any State or the District of Columbia having a combined capital
and surplus of at least $50,000,000, and which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or examination by
Federal, State or District of Columbia authority. Such corporation shall have
its principal place of business or an agency in the Borough of Manhattan, The
City of New York if there is such a corporation in such location willing to act
upon reasonable and customary terms and conditions. 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
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 6.10.
The provisions of this Section 6.9 are in furtherance of and
subject to Section 310(a) of the Trust Indenture Act of 1939.
6.10 Resignation and Removal; Appointment of Successor
Trustee.
(a) The Trustee, or any trustee or trustees
hereafter appointed, may at any time resign with respect to one or
more or all series of Securities by giving written notice of
resignation to the Issuer and (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 the Borough of Manhattan, The City of New
York, and at least once in an Authorized Newspaper in London (and, if
required by Section 3.6, 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 within two years
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preceding the giving of such notice 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
registry books. Upon receiving such notice of resignation, the
Issuer shall promptly appoint a successor trustee or trustees with
respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee or trustees. If no successor trustee shall have
been so appointed with respect to any series and have accepted
appointment within 30 days after the mailing of such notice of
resignation, 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 5.12, on behalf of himself and
all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following
shall occur:
(i) the Trustee shall fail to comply
with the provisions of Section 310(b) of the Trust Indenture
Act of 1939 with respect to any series of Securities after
written request therefor by the Issuer or by any
Securityholder who has been a bona fide Holder of a Security
or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be
eligible in accordance with the provisions of Section 6.9 and
Section 310(a) of the Trust Indenture Act of 1939 and shall
fail to resign after written request therefor by the Issuer or
by any Securityholder; or
(iii) the Trustee shall become incapable
of acting with respect to any series of Securities, or shall
be adjudged a bankrupt or insolvent, or a receiver or
liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of
Directors of the Issuer, 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 315(e) of the Trust Indenture Act of 1939, any
Securityholder who has been a bona fide Holder of a Security or Securities of
such series for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee with respect
to such series. Such
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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 each series at the time
outstanding may at any time remove the Trustee with respect to
Securities of such series and appoint a successor trustee with respect
to the Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 7.1 of the action in that regard
taken by the Securityholders.
(d) Any resignation or removal of the Trustee
with respect to any series and any appointment of a successor trustee
with respect to such series pursuant to any of the provisions of this
Section 6.10 shall become effective upon acceptance of appointment by
the successor trustee as provided in Section 6.11.
(e) The Issuer shall give notice of each removal
of the Trustee (i) 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 City of New
York and at least once in an Authorized Newspaper in London (and, if
required by Section 3.6, at least once in an Authorized Newspaper in
Luxembourg), (ii) 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 within two years preceding the
giving of such notice, by mailing such notice to such Holders at such
addresses as were so furnished to the Trustee (and the Trustee shall
make such information available to the Issuer for such purpose) and
(iii) 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 registry books.
6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and 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 rights, powers, duties and obligations
of its predecessor hereunder with respect to such series, with like effect as
if originally named as trustee for such series hereunder; but, nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of
its charges then unpaid, the trustee ceasing to act shall, subject to Section
10.4, pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a prior claim upon all property or funds held
or collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.
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If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the predecessor
Trustee and each successor trustee with respect to the Securities of such
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 under
separate indentures.
No successor trustee with respect to any series of Securities
shall accept appointment as provided in this Section 6.11 unless at the time of
such acceptance such successor trustee shall be qualified under Section 310(b)
of the Trust Indenture Act of 1939 and eligible under the provisions of Section
6.9.
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.11, the Issuer shall give notice thereof (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 3.6, 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 within two years
preceding the giving of such notice, by mailing such notice to such Holders at
such addresses as were so furnished to the Trustee (and the Trustee shall make
such information available to the Issuer for such purpose) and (c) to the
Holders of Registered Securities of each series affected, by mailing such
notice to such Holders at their addresses as they shall appear on the registry
books. If the acceptance of appointment is substantially contemporaneous with
the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 6.10. If the Issuer fails to
give such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be given at
the expense of the Issuer.
6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be 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 that such
corporation shall be qualified under Section 310(b) of the Trust Indenture Act
of 1939 and eligible under the provisions of Section 6.9, 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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In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities of any
series shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that time
any of the Securities of any series shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor Trustee; and in all
such cases such certificate shall have the full force which it is anywhere in
the Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities of any series in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
6.13 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent) which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is
made in this Indenture to the authentication and delivery of Securities of any
series by the Trustee or to the Trustee's Certificate of Authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent for such series and a Certificate of
Authentication executed on behalf of the Trustee by such Authenticating Agent.
Such Authenticating Agent shall at all times be a corporation organized and
doing business under the laws of the United States of America or of any State
or the District of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and subject
to supervision or examination by Federal, State or District of Columbia
authority.
Any corporation into which any Authenticating Agent may be
merged or converted, or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be the
Authenticating Agent with respect to all series of Securities for which it
served as Authenticating Agent without the execution or filing of any paper or
any further act on the part of the Trustee or such Authenticating Agent.
Any Authenticating Agent may at any time, and if it shall
cease to be eligible shall, resign by giving written notice of resignation to
the Trustee and to the Issuer. The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.13 with respect to one or more series of
Securities,
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the Trustee shall upon receipt of an Issuer Order appoint a successor
Authenticating Agent and the Issuer shall provide notice of such appointment to
all Holders of Securities of such series in the manner and to the extent
provided in Section 11.4. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. The Issuer agrees to pay to the
Authenticating Agent for such series from time to time reasonable compensation.
The Authenticating Agent for the Securities of any series shall have no
responsibility or liability for any action taken by it as such at the direction
of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6, 6.9 and 7.3 shall be applicable
to any Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of any instrument
or of a writing appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of
the Trustee and the Issuer, if made in the manner provided in this Article.
7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument
by a Securityholder or his agent or proxy may be proved in the following
manner:
(a) The fact and date of the execution by any
Holder 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 an Unregistered 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
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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 Unregistered Securities of one or more series specified therein.
The holding by the person named in any such certificate of any
Unregistered Securities of any series specified therein shall be
presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding
(1) another certificate bearing a later date issued in respect of the
same Securities shall be produced, or (2) the Security of such series
specified in such certificate shall be produced by some other person,
or (3) the Security of such series specified in such certificate shall
have ceased to be Outstanding. Subject to Sections 6.1 and 6.2, 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.
The Issuer may set a record date for purposes of determining
the identity of Holders of Registered Securities of any series entitled to vote
or consent to any action referred to in Section 7.1, which record date may be
set at any time or from time to time by notice to the Trustee, for any date or
dates (in the case of any adjournment or reconsideration) not more than 60 days
nor less than five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, with respect to
Registered Securities of any series, only Holders of Registered Securities of
such series of record on such record date shall be entitled to so vote or give
such consent or revoke such vote or consent.
7.3 Holders to be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of and, subject to the provisions of this Indenture, interest on
such Security and for all other purposes; and neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. The Issuer, the Trustee and any agent of the Issuer or
the Trustee 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 Issuer, the Trustee, nor any agent of the Issuer or
the Trustee shall be affected by any notice to the contrary. All such payments
so made to any such person, or upon his
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order, shall be valid, and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for moneys payable upon any such
Unregistered Security or Coupon.
7.4 Securities Owned by Issuer Deemed Not Outstanding.
In determining whether the Holders of the requisite aggregate principal amount
of Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Issuer or any other obligor on the Securities with respect to which such
determination is being made or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Issuer or
any other obligor on the Securities with respect to which such determination is
being made 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
so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Issuer or any other obligor upon the Securities or
any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officer's Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above described persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officer's Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
7.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.1, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid any such action taken by the
Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities
issued in exchange or substitution therefor or on registration of transfer
thereof, irrespective of whether or not any notation in regard thereto is made
upon any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
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7.6 Record Date for Consents and Waivers. The Issuer
may, but shall not be obligated to, direct the Trustee to establish a record
date for the purpose of determining the Persons entitled to (i) waive any past
default with respect to the Securities of such series in accordance with
Section 5.10, (ii) consent to any supplemental indenture in accordance with
Section 8.2 or (iii) waive compliance with any term, condition or provision of
any covenant hereunder (if the Indenture should expressly provide for such
waiver). If a record date is fixed, the Holders on such record date, or their
duly designated proxies, shall be entitled to waive any such past default,
consent to any such supplemental indenture or waive compliance with any such
term, condition or provision, whether or not such Holder remains a Holder after
such record date; provided, however, that unless such waiver or consent is
obtained from the Holders, or duly designated proxies, of the requisite
principal amount of Outstanding Securities of such series prior to the date
which is the 90th day after such record date, any such waiver or consent
previously given shall automatically and without further action by any Holder
be canceled and of no further effect.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or
pledge any property or assets to the Trustee as security for the
Securities of one or more series;
(b) to evidence the succession of another entity
to the Issuer, or successive successions, and the assumption by the
successor of the covenants, agreements and obligations of the Issuer
pursuant to Article IX;
(c) to add to the covenants of the Issuer such
further covenants, restrictions, conditions or provisions as the
Issuer and the Trustee shall consider to be for the protection of the
Holders of Securities or Coupons, and to make the occurrence, or the
occurrence and continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, that in
respect of any such additional covenant, restriction, condition or
provision such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in
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aggregate principal amount of the Securities of such series to waive
such an Event of Default;
(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 any other provisions as the Issuer may deem necessary or
desirable, provided that no such action shall adversely affect the
interests of the Holders of the Securities or Coupons;
(e) to establish the forms or terms of Securities
of any series or of the Coupons appertaining to such Securities as
permitted by Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Section 6.11.
The Trustee is hereby authorized to join with the Issuer 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 affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 8.2.
8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article VII) of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of all series affected by such supplemental
indenture (voting as a single class), the Issuer, when authorized by a
resolution of its Board of Directors (which resolution may provide general terms
or parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order), 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 indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series or of the Coupons appertaining to
such Securities; provided, that no such supplemental indenture shall
(a) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the rate (or alter the
method of computation) of interest thereon
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or extend the time for payment thereof, or reduce (or alter the method
of computation of) any amount payable on redemption or repayment
thereof or extend the time for payment thereof, or make the principal
thereof or interest thereon (including any amount in respect of
original issue discount) payable in any coin or currency other than
that provided in the Securities and Coupons or in accordance with the
terms thereof, or reduce the amount that would be due and payable upon
an acceleration of the maturity of any Security pursuant to Section
5.1, or alter the provisions of Section 11.11 or 11.12 or impair or
affect the right of any Securityholder to institute suit for the
payment thereof or, if the Securities provide therefor, any right of
repayment at the option of the Securityholder, in each case without
the consent of the Holder of each Security so affected, or
(b) reduce the aforesaid percentage in principal
amount of Securities of any series, the consent of the Holders of
which is required for any such supplemental indenture, without the
consent of the Holders of each Security so affected.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series, or of Coupons
appertaining to such Securities, with respect to such covenant provision, shall
be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or of the Coupons appertaining to such
Securities.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant to an Issuer
Order) certified by the Secretary or an Assistant Secretary of the Issuer
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of the Holders of the
Securities as aforesaid and other documents, if any, required by Section 7.1,
the Trustee shall join with the Issuer 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 by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice thereof (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 within two years
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preceding the giving of such notice, 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, by publication of a notice thereof 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 3.6, 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. Failure of the Issuer to give such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
8.3 Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Issuer and the Holders of
Securities of each series affected thereby 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.
8.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an Officer's
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article VIII complies with the
applicable provisions of this Indenture.
8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
9.1 Issuer May Consolidate, etc. on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of the Issuer with any other corporation or
corporations (whether or not affiliated with the Issuer), or successive
consolidations or mergers in which the Issuer or its successor or successors
shall be a party or parties, or shall prevent any sale or conveyance of all or
substantially all the property of the Issuer
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to any other corporation (whether or not affiliated with the Issuer) authorized
to acquire and operate the same; provided, however, that immediately after
giving effect to such transaction, no Event of Default with respect to any
series of Securities and no event which, after notice or lapse of time or both,
would become an Event of Default with respect to any series of Securities shall
have occurred and be continuing; and provided further, that upon any such
consolidation, merger, sale or conveyance, other than a consolidation or merger
in which the Issuer is the continuing corporation, the due and punctual payment
of the principal of and interest on all of the Securities and Coupons,
according to their tenor, and the due and punctual performance and observance
of all of the covenants and conditions of this Indenture to be performed by the
Issuer, shall be expressly assumed, by supplemental indenture satisfactory in
form to the Trustee, executed and delivered to the Trustee by the corporation
(if other than the Issuer) formed by such consolidation, or into which the
Issuer shall have been merged, or which shall have acquired such property, and
provided further, that such corporation shall be incorporated under the laws of
the United States of America or a State of the United States of America.
9.2 Successor Issuer Substituted. In case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and interest on all of the Securities and Coupons
and the due and punctual performance of all of the covenants and conditions of
this Indenture to be performed by the Issuer, such successor corporation shall
succeed to and be substituted for the Issuer, with the same effect as if it had
been named herein as the Issuer. Such successor corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of the
Issuer prior to such succession any or all of the Securities issuable
hereunder, together with any Coupons appertaining thereto, which theretofore
shall not have been signed by the Issuer and delivered to the Trustee; and,
upon the order of such successor corporation instead of the Issuer and subject
to all the terms, conditions, and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities, together with any
Coupons appertaining thereto, which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee, and any Securities,
together with any Coupons appertaining thereto, which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee
for that purpose. All the Securities so issued, together with any Coupons
appertaining thereto, shall in all respects have the same legal rank and
benefit under this Indenture as the Securities and Coupons theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities and Coupons had been issued at the date of the execution
hereof.
In the event 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.
In the event of any such sale or conveyance (other than a
conveyance by way of lease) the Issuer shall be discharged from all obligations
and covenants under this Indenture and the Securities and may be liquidated and
dissolved.
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9.3 Opinion of Counsel to Trustee. The Trustee, subject
to the provisions of Section 6.1 and 6.2, may receive an Opinion of Counsel,
prepared in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
ARTICLE X
SATISFACTION AND DISCHARGE OF
INDENTURE; UNCLAIMED MONEYS
10.1 Satisfaction and Discharge of Indenture.
(a) If at any time (i) the Issuer shall have paid
or caused to be paid the principal of and interest on all the
Securities of any series Outstanding hereunder and all Coupons
appertaining thereto (other than Securities of such series and Coupons
appertaining thereto which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.9) as and
when the same shall have become due and payable, or (ii) the Issuer
shall have delivered to the Trustee for cancellation all Securities of
any series theretofore authenticated and all Coupons appertaining
thereto (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 2.9)
or (iii) in the case of any series of Securities where the exact
amount (including the currency of payment) of principal of and
interest due on such Securities can be determined at the time of
making the deposit referred to in clause (B) below, (A) all the
Securities of such series and all Coupons appertaining thereto 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 (B) the Issuer shall have irrevocably
deposited or caused to be irrevocably deposited with the Trustee as
trust funds in trust for the purpose of making the following payments,
specifically pledged as security for and dedicated solely to the
benefit of the Holders of the Securities of such series and Coupons
appertaining thereto, (x) cash in an amount, or (y) in the case of any
series of Securities the payments on which may only be made in
Dollars, direct obligations of the United States of America, backed by
its full faith and credit ("U.S. Government Obligations"), maturing as
to principal and interest at such times and in such amounts as will
insure the availability of cash in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay the principal and interest on
all Securities of such series and Coupons appertaining thereto on each
date that such principal or interest is due and payable (whether at
maturity or upon redemption (through operation of a mandatory sinking
fund or otherwise) other than any redemption at the option of the
Holder); and if, in any such case, the Issuer shall also pay or cause
to be paid all other sums payable hereunder by the Issuer, then all of
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the Securities of such series and any Coupons appertaining thereto
shall be deemed paid and discharged and the provisions of this
Indenture with respect to such Securities and Coupons shall cease to
be of further effect (except as to (1) rights of registration of
transfer, exchange of Securities of such series and of Coupons
appertaining thereto and the Issuer's right of optional redemption, if
any, (2) substitution of mutilated, defaced, destroyed, lost or stolen
Securities or Coupons, (3) rights of Holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and
interest thereon, upon the stated due dates therefor (whether at
maturity or upon redemption (through operation of a mandatory sinking
fund or otherwise) other than any redemption at the option of the
Holder) (but not upon acceleration), (4) the rights, obligations,
duties and immunities of the Trustee hereunder, (5) the rights of the
Holders of Securities of such series and Coupons appertaining thereto
as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them, and (6) the obligations of
the Issuer under Section 3.2) and the Trustee, on demand of the Issuer
accompanied by an Officer's Certificate and an Opinion of Counsel
which complies with Section 11.5 and at the cost and expense of the
Issuer, shall execute proper instruments acknowledging the same. The
Issuer agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the
Trustee for any services thereafter reasonably and properly rendered
by the Trustee in connection with this Indenture or the Securities of
such series.
(b) In addition to discharge of the Indenture
pursuant to the next preceding paragraph, in the case of any series of
Securities where the exact amounts (including the currency of payment)
of principal of and interest due on such Securities can be determined
at the time of making the deposit referred to in clause (A) below, on
the 91st day after the date of such deposit all the Securities of such
a series and any Coupons appertaining thereto shall be deemed paid and
discharged and the provisions of this Indenture with respect to the
Securities and Coupons shall cease to be of further effect (except as
to (i) rights of registration of transfer and exchange of Securities
of such series and of Coupons appertaining thereto and the Issuer's
right of optional redemption, if any, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities or Coupons, (iii) rights
of Holders of Securities and Coupons appertaining thereto to receive
payments of principal thereof and interest thereon, upon the stated
due dates therefor (whether at maturity or upon redemption (through
operation of a mandatory sinking fund or otherwise) other than any
redemption at the option of the Holder) (but not upon acceleration),
(iv) the rights, obligations, duties and immunities of the Trustee
hereunder, (v) the rights of the Holders of Securities of such series
and Coupons appertaining thereto as beneficiaries hereof with respect
to the property so deposited with the Trustee payable to all or any of
them and (vi) the obligations of the Issuer under Section 3.2) and the
Trustee, at the expense of the Issuer, shall at the Issuer's request,
execute proper instruments acknowledging the same, if
(A) the Issuer has irrevocably deposited
or caused to be irrevocably deposited with the Trustee as
trust funds in trust for the purpose of making the following
payments, specifically pledged as security for and dedicated
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solely to the benefit of the Holders of the Securities of such
series and Coupons appertaining thereto, (1) cash in an amount,
or (2) in the case of any series of Securities the payments on
which may only be made in Dollars, U.S. Government Obligations,
maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash in an amount or
(3) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay the principal and interest on all Securities of
such series and Coupons appertaining thereto on each date that
such principal or interest is due and payable (whether at
maturity or upon mandatory redemption (through operation of a
mandatory sinking fund or otherwise) other than any redemption
at the option of the Holder);
(B) no Event of Default or event which
with notice or lapse of time or both would become an Event of
Default with respect to the Securities shall have occurred and
be continuing on the date of such deposit or, insofar as
subsections 5.1(d) and (e) are concerned, at any time during
the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(C) such deposit and discharge will not
result in a breach or violation of, or constitute a default
under, any other agreement or instrument to which the Issuer
is a party or by which it is bound;
(D) such deposit and discharge shall
not cause the Trustee to have a conflicting interest as
defined in Section 310(b) of the Trust Indenture Act of 1939;
(E) such deposit and discharge shall
not cause any Securities then listed on any registered
national securities exchange to be delisted;
(F) the Issuer shall have delivered to
the Trustee an Opinion of Counsel based on the fact that (x)
the Issuer has received from, or there has been published by,
the Internal Revenue Service a ruling or (y) since the date
hereof, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and such
opinion shall confirm that, the Holders of the Securities of
such series and Coupons appertaining thereto 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 amount, in the
same manner and at the same times as would have been the case
if such deposit and discharge had not occurred; and
(G) the Issuer shall have delivered to
the Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that all conditions precedent
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relating to the deposit and discharge contemplated by this
provision have been complied with.
(c) The Issuer shall be released from its
obligations under Sections 3.7, 3.8 and 9.1 and any other covenants
specified pursuant to Section 2.3 with respect to the Securities of
any series and any Coupons appertaining thereto on and after the date
the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that,
with respect to the Outstanding Securities of the applicable series,
the Issuer may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in such Section
or any such covenant, whether directly or indirectly by reason of any
reference elsewhere herein to such Section or any such covenant or by
reason of any reference in such Section or any such covenant to any
other provision herein or in any other document and such omission to
comply shall not constitute an Event of Default under Section 5.1, but
the remainder of this Indenture and such Securities and Coupons shall
be unaffected thereby. The following shall be the conditions to
application of this subsection (c) of this Section 10.1:
(i) The Issuer has irrevocably
deposited or caused to be irrevocably deposited with the
Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the
Securities of such series and Coupons appertaining thereto,
(A) cash in an amount, or (B) in the case of any series of
Securities the payments on which may only be made in Dollars,
U.S. Government Obligations maturing as to principal and
interest at such times and in such amounts as will insure the
availability of cash in an amount or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay the
principal and interest on all Securities of such series and
Coupons appertaining thereto on each date that such principal
or interest is due and payable (whether at maturity or upon
redemption (through operation of a mandatory sinking fund or
otherwise) other than any redemption at the option of the
Holder).
(ii) No Event of Default or event which
with notice or lapse of time or both would become an Event of
Default with respect to the Securities shall have occurred and
be continuing on the date of such deposit or, insofar as
subsections 5.1(d) and (e) are concerned, at any time during
the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(iii) Such covenant defeasance will not
result in a breach or violation of, or constitute a default
under, any agreement or instrument to which the Issuer is a
party or by which it is bound.
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(iv) Such covenant defeasance shall not
cause the Trustee to have a conflicting interest as defined in
Section 310(b) of the Trust Indenture Act of 1939.
(v) Such covenant defeasance shall not
cause any Securities then listed on any registered national
securities exchange to be delisted.
(vi) The Issuer shall have delivered to
the Trustee an Opinion of Counsel to the effect that the
Holders of the Securities of such series and Coupons
appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not
occurred.
(vii) The Issuer shall have delivered to
the Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating
to the covenant defeasance contemplated by this provision have
been complied with.
10.2 Application by Trustee of Funds Deposited for Payment
of Securities. Subject to Section 10.4, all moneys and Securities deposited
with the Trustee (or other trustee) pursuant to Section 10.1 shall be held in
trust and applied by it to the payment, either directly or through any paying
agent (including the Issuer acting as its own paying agent), to the Holders of
the particular Securities of such series and of Coupons appertaining thereto
for the payment or redemption of which such moneys or Securities have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such moneys or Securities need not be segregated
from other funds except to the extent required by law.
10.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under the
provisions of this Indenture with respect to such series of Securities shall,
upon demand of the Issuer, 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.
10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest on any
Security of any series or Coupons attached thereto and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request of
the Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the Holder of the Securities
of such series and of any Coupons appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Issuer for any payment
which such Holder may be entitled to collect, and all liability of the
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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 (a) in respect of Registered Securities of any series, shall at the
expense of the Issuer, mail by first-class mail to Holders of such Securities
at their addresses as they shall appear on the Security register, and (b) in
respect of Unregistered Securities of any series, shall at the expense of the
Issuer cause to be published once, in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and once in an Authorized Newspaper in London
(and if required by Section 3.6, 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 30 days from the date of such mailing or
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer.
10.5 Indemnity for U.S. Government Obligations. The
Issuer shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 10.1 or the principal or interest received in respect of
such obligations.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 Incorporators, Stockholders, Officers, Directors and
Employees of Issuer Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or
in any Security, or because of any indebtedness evidenced thereby, shall
be had against any incorporator, as such or against any past, present or future
stockholder, officer, director or employee, as such, of the Issuer or of any
successor, either directly or through the Issuer or any successor, 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 and the Coupons appertaining thereto by the Holders thereof and as
part of the consideration for the issue of the Securities and the Coupons
appertaining thereto.
11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities and Coupons. Nothing in this Indenture, in
the Securities or in the Coupons appertaining thereto, expressed or implied,
shall give or be construed to give to any Person, other than the parties hereto
and their successors and the Holders of the Securities or Coupons, if any, any
legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
Holders of the Securities or Coupons, if any.
11.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
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11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons. 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 or Coupons to or on the Issuer may be given or served
by being deposited postage prepaid, first- class mail (except as otherwise
specifically provided herein) addressed (until another address of the Issuer is
filed by the Issuer with the Trustee) to Sysco Corporation, 0000 Xxxxxxx
Xxxxxxx, Xxxxxxx, Xxxxx 00000-0000, Attention: Chief Financial Officer. Any
notice, direction, request or demand by the Issuer or any Holder of Securities
or Coupons to or upon the Trustee shall be deemed to have been sufficiently
given or served by being deposited postage prepaid, first- class mail (except
as otherwise specifically provided herein) addressed (until another address of
the Trustee is filed by the Trustee with the Issuer) to First Union National
Bank of North Carolina, 000 X. Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Corporate Trust Administration Department.
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder entitled thereto, at his last address as it
appears in the Security register. Where this Indenture provides for notice to
Holders of Unregistered Securities who have filed their names and addresses
within two years preceding the giving of such notice, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled thereto, at
his last address as it appears in such filing. Notice to other Unregistered
Securities shall be by publication as provided in Section 6.10(a)(i). In any
case where notice to such Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer
when such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
11.5 Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officer's 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.
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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 (a) a statement that the
person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based, (c) a statement that, in the opinion of 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 (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters where the information is in the
possession of the issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
11.6 Payments Due on Saturdays, Sundays and Holidays. If
the date of maturity of interest on or principal of the Securities of any
series or any Coupons appertaining thereto or the date fixed for redemption or
repayment of any such Security or Coupon shall not be a Business Day, then
payment of interest or principal need not be made on such date, 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.
11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture by operation of Sections 310 to 317, inclusive, of the Trust
Indenture Act of 1939 (an "incorporated provision"), such incorporated
provision shall control.
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11.8 New York Law to Govern. This Indenture and each
Security and Coupon shall be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in accordance with
the laws of such State, except as may otherwise be required by mandatory
provisions of law.
11.9 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.
11.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
11.11 Securities in a Foreign Currency or in ECU. Unless
otherwise specified in an Officer's Certificate delivered pursuant to Section
2.3 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time Outstanding
and, at such time, there are Outstanding Securities of any series which are
denominated in a coin or currency other than Dollars (including ECUs), then the
principal amount of Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market Exchange Rate.
For purposes of this Section 11.11, Market Exchange Rate shall mean the noon
Dollar buying rate in New York City for cable transfers of that currency
published by the Federal Reserve Bank of New York; provided, however, in the
case of ECUs, Market Exchange Rate shall mean the rate of exchange determined
by the Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities (such publication
or any successor publication, the "Journal"). If such Market Exchange Rate is
not available for any reason with respect to such currency, the Trustee shall
use, in its sole discretion and without liability on its part, such quotation
of the Federal Reserve Bank of New York or, in the case of ECUs, the rate of
exchange as published in the Journal, as of the most recent available date, or
quotations or, in the case of ECUs, rates of exchange from one or more major
banks in The City of New York or in the country of issue of the currency in
question, which for purposes of the ECU shall be Brussels, Belgium, or such
other quotations or, in the case of ECU, rates of exchange as the Trustee shall
deem appropriate. The provisions of this paragraph shall apply in determining
the equivalent principal amount in respect of Securities of a series
denominated in a currency other than Dollars in connection with any action
taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the
Market Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the absence
of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Issuer and all Holders.
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11.12 Judgment Currency. The Issuer agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or 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 day 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.
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
12.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity (pursuant to operation of any sinking fund or
otherwise) except as otherwise specified, as contemplated by Section 2.3, for
Securities of such series.
12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part other than at the option of the Holder shall be given by
mailing notice of such redemption by first-class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders at their last addresses as they shall appear upon the registry
books. 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 within two years preceding the giving of such notice, shall be
given by mailing notice of such redemption, by first-class mail, postage
prepaid, at least 30 days and not more than 60 prior to the date fixed for
redemption, to such Holders at such addresses as were
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so furnished to the Trustee (and, in the case of any such notice given by the
Issuer, the Trustee shall make such information available to the Issuer for
such purpose). Notice of redemption to all other Holders of Unregistered
Securities shall be published in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and in an Authorized Newspaper in London (and,
if required by Section 3.6, in an Authorized Newspaper in Luxembourg), in each
case, once in each of three successive calendar weeks, the first publication to
be not less than 30 nor more than 60 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
receives the notice. Failure to give notice, 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.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities and, in the case of Securities with Coupons attached thereto,
of all Coupons appertaining thereto maturing after the date fixed for
redemption, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue. In case any Security of a series is to be redeemed in part
only the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
the same series, of like tenor and in an aggregate principal amount equal to
the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
3.4) an amount of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. If less than all Outstanding Securities of any series are to be
redeemed, the Issuer will deliver to the Trustee at least 70 days prior to the
date fixed for redemption an Officer's Certificate stating the aggregate
principal amount of Securities of such series to be redeemed. In case of a
redemption at the election of the Issuer prior to the expiration of any
restriction on such redemption, the Issuer shall deliver to the Trustee, prior
to the giving of any notice of redemption to Holders pursuant to this Section,
an Officer's Certificate stating that such restriction has been complied with.
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If less than all the Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem appropriate
and fair, Securities of such series to be redeemed in whole or in part.
Securities may be redeemed in part in multiples of the minimum authorized
denomination for Securities of such series. The Trustee shall promptly notify
the Issuer in writing of the Securities of such series selected for redemption
and, in the case of any Securities of such series selected for partial
redemption, the principal amount thereof to be redeemed. For all purposes of
this Indenture, unless the context otherwise requires, all provisions relating
to the redemption of Securities of any series shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
12.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on
and after said date (unless the Issuer shall default in the payment of such
Securities at the redemption price, together with interest accrued to said
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void, and, except as provided in Sections 6.5 and
10.4, such Securities shall cease from and after the close of business on the
date fixed for redemption to be entitled to any benefit or security under this
Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender of
such Securities at a place of payment specified in said notice, together with
all Coupons, if any, appertaining thereto maturing after the date fixed for
redemption, said Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; provided that
payment of interest becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with Coupons attached thereto, to
the Holders of the Coupons for such interest upon surrender thereof, and in the
case of Registered Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant Coupons maturing after
the date fixed for redemption, the surrender of such missing Coupon or Coupons
may be waived by the Issuer and the Trustee, if there be furnished to each of
them such security or indemnity as they may require to save each of them
harmless.
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Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new Security
or Securities of the same series, in authorized denominations, of like tenor
and in an aggregate principal amount equal to the unredeemed portion of the
Security so presented.
12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officer's Certificate delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Issuer or (b) an entity specifically identified in such written
statement as directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer.
12.5 Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the Issuer may
at its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, and
(c) receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee an
Officer's Certificate (which need not contain the statements required by
Section 11.5) (a) specifying the portion of the mandatory sinking fund payment
to be satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series and the basis for such credit, (b) stating that none
of the Securities of such series to be so credited have previously been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the Issuer intends
to exercise its right to make an optional sinking fund payment with respect to
such series and, if so, specifying the amount of such optional sinking fund
payment which the Issuer intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Issuer to be entitled
to credit therefor as aforesaid which have not theretofore been delivered to
the Trustee shall be delivered for cancellation pursuant to Section 2.10
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to the Trustee with such Officer's Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officer's Certificate shall be
irrevocable and upon its receipt by the Trustee the Issuer shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment
date. Failure of the Issuer, on or before any such 60th day, to deliver such
Officer's Certificate and Securities (subject to the parenthetical clause in
the second preceding sentence) specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of
such series in respect thereof and (ii) that the Issuer will make no optional
sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or the equivalent thereof in any Foreign Currency or ECU)
or a lesser sum in Dollars (or the equivalent thereof in any Foreign Currency
or ECU) if the Issuer shall so request with respect to the Securities of any
particular series, such cash shall be applied on the next succeeding sinking
fund payment date to the redemption of Securities of such series at the sinking
fund redelegation price together with accrued interest to the date fixed for
redemption. If such amount shall be $50,000 (or the equivalent thereof in any
Foreign currency or ECU) or less and the Issuer makes no such request then it
shall be carried over until a sum in excess of $50,000 (or the equivalent
thereof in any Foreign Currency or ECU) is available. The Trustee shall
select, in the manner provided in Section 12.2 and subject to the limitations
in Section 12.4, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as nearly as
may be, and shall (if requested in writing by the Issuer) inform the Issuer of
the serial numbers of the Securities of such series (or portions thereof) so
selected. The Trustee, in the name and at the expense of the Issuer (or the
Issuer, if it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the
manner provided in Section 12.2 (and with the effect provided in Section 12.3)
for the redemption of Securities of such series in part. The amount of any
sinking fund payments not so applied or allocated to the redemption of
Securities of such series shall be added to the next cash sinking fund payment
for such series and, together with such payment, shall be applied in accordance
with the provisions of this Section. Any and all sinking fund moneys held on
the stated maturity date of the Securities of any particular series (or
earlier, if such maturity is accelerated), which are not held for the payment
or redemption of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the purpose, to the
payment of the principal of, and interest on, the Securities of such series at
maturity.
On or before each sinking fund payment date, the Issuer shall
pay to the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be redeemed
on the next following sinking fund payment date.
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The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or give any notice of
redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest on such Securities
or of any Event of Default except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event
of Default, be deemed to have been collected under Article V and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 5.10 or the default cured on or before the 60th
day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
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IN WITNESS WHEREOF the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of June 15, 1995.
SYSCO CORPORATION
By:
-----------------------------
Xxxx X. Xxxxxxxxxxxx, Xx.
Senior Vice President and
Chief Financial Officer
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, TRUSTEE
By:
----------------------------
Name:
Title:
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