Exhibit 4.1
CONFORMED COPY
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THE LIMITED, INC.
And
THE BANK OF NEW YORK,
Trustee
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Indenture
Dated as of March 15, 1988
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Debt Securities
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This Cross Reference Sheet, showing the location in the Indenture of the
provisions inserted pursuant to Section 310-318(a), inclusive, of the Trust
Indenture Act of 1939, is not to be considered a part of the Indenture.
TRUST INDENTURE ACT CROSS REFERENCE SHEET
Sections of Trust Sections of
Indenture Act Indenture
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310(a)(1).................................................. 1005
310(a)(2).................................................. 1005
310(a)(3).................................................. Not Applicable
310(a)(4).................................................. Not Applicable
310(b)..................................................... 1006
310(c)..................................................... Not Applicable
311........................................................ 1009
312........................................................ 903
313........................................................ 901
314(a)..................................................... 902
314(b)..................................................... Not Applicable
314(c)..................................................... 1403
314(d)..................................................... Not Applicable
314(e)..................................................... 1403
315(a)..................................................... 1002(a)
315(b)..................................................... 1003
315(c)..................................................... 1002
315(d)..................................................... 1002
315(e)..................................................... 608
316(a)..................................................... 606 and 703
316(b)..................................................... 607
317(a)..................................................... 603 and 604
317(b)..................................................... 503
318(a)..................................................... 1404
TABLE OF CONTENTS*
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Parties........................................................................1
Recitals.......................................................................1
ARTICLE ONE
DEFINITIONS
SECTION 101. Definitions......................................................2
Affiliate; control...............................................2
Board of Directors...............................................2
Board Resolution.................................................2
Business Day.....................................................3
Commission.......................................................3
Company..........................................................3
Company Request; Company Order...................................3
Components.......................................................3
Conversion Date..................................................3
Corporate Trust Office...........................................3
corporation......................................................4
Debt Securities..................................................4
Defaulted Interest...............................................4
Depositary.......................................................4
Dollar...........................................................4
ECU..............................................................4
European Communities.............................................4
Event of Default.................................................4
Exchange Rate....................................................4
Exchange Rate Officer's Certificate..............................5
Foreign Currency.................................................6
Global Security..................................................6
Government Obligations...........................................6
Governmental Authority...........................................6
Holder...........................................................6
Indebtedness.....................................................6
Indenture........................................................6
interest.........................................................6
Interest Payment Date............................................7
Mandatory Sinking Fund Payment...................................7
Maturity.........................................................7
Officers' Certificate............................................7
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* This table of contents shall not, for any purpose, be deemed to be a part of
the Indenture.
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Opinion of Counsel.............................................7
Optional Sinking Fund Payment..................................7
Original Issue Discount Security...............................7
Outstanding....................................................7
Paying Agent...................................................8
Person.........................................................8
Place of Payment...............................................8
Predecessor Security...........................................8
Redemption Date................................................8
Redemption Price...............................................8
Regular Record Date............................................8
Responsible Officer............................................8
Security Register; Security Registrar..........................9
Significant Subsidiary.........................................9
Special Record Date............................................9
Stated Maturity................................................9
Subsidiary.....................................................9
Trustee........................................................9
Trust Indenture Act............................................9
United States..................................................9
Voting Stock...................................................9
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. Forms Generally...............................................10
SECTION 202. Forms of Debt Securities......................................10
SECTION 203. Form of Trustee's Certificate of Authentication...............10
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series..........................11
SECTION 302. Denominations.................................................13
SECTION 303. Execution, Authentication, Delivery and Dating................13
SECTION 304. Temporary Debt Securities.....................................16
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SECTION 305. Registration, Transfer and Exchange...........................17
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities.........20
SECTION 307. Payment of Interest; Interest Rights Preserved................20
SECTION 308. Persons Deemed Owners.........................................22
SECTION 309. Cancellation..................................................22
SECTION 310. Computation of Interest.......................................23
SECTION 311. Payment in Currencies.........................................23
ARTICLE FOUR
REDEMPTION OF DEBT SECURITIES; SINKING FUND
SECTION 401. Applicability of Right of Redemption..........................27
SECTION 402. Notice of Redemption..........................................27
SECTION 403. Selection of Debt Securities on Partial Redemption............28
SECTION 404. Deposit of Redemption Price...................................28
SECTION 405. Debt Securities Payable on Redemption Date....................28
SECTION 406. Debt Securities Redeemed in Part..............................29
SECTION 407. Applicability of Sinking Fund.................................29
SECTION 408. Mandatory and Optional Sinking Funds..........................30
SECTION 409. Application of Sinking Fund Payments..........................31
ARTICLE Five
Particular Covenants of the Company
SECTION 501. To Pay Principal, Premium, If Any, and Interest...............32
SECTION 502. To Maintain Offices or Agencies...............................32
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SECTION 503. Money for Debt Security Payments To Be Held in Trust..........32
SECTION 504. Restrictions on Liens Upon Voting Stock of Significant
Subsidiaries................................................34
SECTION 505. Restrictions on Consolidation, Merger, Sale, Etc..............35
SECTION 506. Annual Statement Concerning Compliance With Covenants.........36
SECTION 507. Compliance With Covenants and Conditions May Be Waived By
Holders of Debt Securities....................................36
ARTICLE SIX
REMEDIES
SECTION 601. Events of Default.............................................37
SECTION 602. Acceleration of Maturity on Default; Waiver...................38
SECTION 603. Collection of Amounts Due and Suits for Enforcement by
Trustee.......................................................39
SECTION 604. Trustee Appointed Attorney-in-Fact for Holders to File Claims.40
SECTION 605. Application of Moneys Collected by Trustee....................41
SECTION 606. Holders May Direct Proceedings and Waive Defaults.............42
SECTION 607. Limitations on Right of Holders to Institute Proceedings......42
SECTION 608. Assessment of Costs and Attorneys' Fees in Legal Proceedings..43
SECTION 609. Rights and Remedies Cumulative................................44
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ARTICLE SEVEN
ACTIONS BY HOLDERS
SECTION 701. Actions By Holders............................................44
SECTION 702. Instruments...................................................45
SECTION 703. Determining Principal Amount of Outstanding Debt Securities...45
SECTION 704. Revocation by Holders of Consents to Action...................46
ARTICLE EIGHT
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 801. Purposes of Meetings..........................................46
SECTION 802. Call of Meetings by Trustee...................................47
SECTION 803. Call of Meetings by Company or Holders........................47
SECTION 804. Qualifications For Voting.....................................47
SECTION 805. Regulation of Meetings........................................48
SECTION 806. Voting........................................................48
SECTION 807. No Delay of Rights by Meeting.................................49
ARTICLE NINE
REPORTS BY THE COMPANY AND THE TRUSTEE; HOLDERS' LISTS
SECTION 901. Reports by Trustee............................................49
(a) Annual Report to Holders..................................49
(b) Special Reports to Holders................................50
(c) Manner and Extent of Transmitting Reports.................51
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(d) Copies to be Filed with Commission and Securities
Exchanges.................................................51
SECTION 902. Reports by the Company........................................51
(a) Reports and Information to be Filed with Trustee..........51
(b) Additional Information to Be Filed with Trustee and
Commission................................................51
(c) Reports to Holders........................................52
SECTION 903. Holders' Lists................................................52
(a) Names and Addresses of Holders............................52
(b) Trustee to Preserve Information...........................52
(c) Trustee to Furnish Certain Information to Holders on
Request...................................................52
ARTICLE TEN
CONCERNING THE TRUSTEE
SECTION 1001. Acceptance of Trusts Upon Specified Conditions................54
(a) Trustee Entitled to Compensation and Expenses;
Indemnification...........................................54
(b) Trustee May Act by Agents and Attorneys...................54
(c) Trustee Not Responsible for Recitals of Fact..............55
(d) Trustee May Consult With Counsel..........................55
(e) Trustee May Rely Upon Certificate as to Adoption
of Resolutions; Requests May Be Evidenced by Officers'
Certificate...............................................55
(f) Trustee May Become Owner or Pledgee of Debt Securities....55
(g) Segregation of Funds......................................55
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(h) Action at Request of or with Consent of Holder
Binding on Future Holders.................................56
(i) Trustee May Rely on Instruments Believed by It to Be
Genuine...................................................56
(j) Trustee Need Not Exercise Rights or Powers Unless
Indemnified by Holders................................... 56
(k) Trustee Not Liable for Action Taken or Omitted in Good
Faith.....................................................56
(l) Trustee Not Bound to Make Investigation...................56
(m) Trustee Not Deemed to Have Knowledge of Default...........56
SECTION 1002. Duties of Trustee in Case of Default..........................57
(a) When No Default Subsisting................................57
(b) Trustee Not Liable for Error of Judgment Made in Good
Faith by Responsible Officer..............................57
(c) Trustee Not Liable for Certain Action or
Non-Action at Direction of Holders of Majority of Debt
ecurities.................................................58
SECTION 1003. Notice to Holders of Defaults.................................58
SECTION 1004. Resignation of Trustee and Notice Thereof.....................58
SECTION 1005. Qualifications of Trustee.....................................59
SECTION 1006. Disqualification of Trustee by Reason of Conflicting
Interest....................................................59
(a) Trustee to Resign.........................................59
(b) Notice to Holders of Failure to Resign....................59
(c) Right of Holders to Petition for Removal of Trustee.......59
(d) Meaning of the Term "Conflicting Interest"; Calculation
of Percentages of Debt Securities........................ 60
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SECTION 1007. Appointment of Successor Trustee..............................65
SECTION 1008. Merger, Conversion or Consolidation of Trustee or
Transfer of its Corporate Trust Business;
Authentication of Debt Securities by Successor Trustee......67
SECTION 1009. Trustee Required to Account for Amounts Collected as
Creditor of the Company Under Certain Conditions............67
(a) Trustee, as a Creditor, to Set Apart and Hold
Certain Moneys in a Special Account During
Default................................................ 67
(b) Situations Not Requiring Trustee to Account...............68
(c) Apportionment of Funds and Property Set Apart.............69
(d) In Case of Resignation or Removal of Trustee..............70
(e) Meaning of Certain Terms as Used in Section 1009..........70
(f) Creditor Relationships to Which Section 1009
Inapplicable............................................70
SECTION 1010. Trustee May Rely on Officers' Certificate.....................72
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 1101. Discharge of Indenture Upon Payment of Debt Securities........73
SECTION 1102. Discharge of Indenture Upon Deposit of Moneys.................73
SECTION 1103. Discharge of Certain Indebtedness Upon Deposit of Moneys......73
SECTION 1104. Termination of Certain Obligations Upon Deposit of Moneys.....74
SECTION 1105. Certain Deposits With the Trustee to be Held in Escrow........75
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SECTION 1106. Repayment to Company..........................................76
SECTION 1107. Reinstatement.................................................76
SECTION 1108. Indemnity for Government Obligations..........................77
SECTION 1109. Deposits of Foreign Currencies................................77
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 1201. Liability Solely Corporate....................................77
ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 1301. Without Consent of Holders, Company and Trustee May Enter Into
Supplemental Indentures for Specified Purposes............78
SECTION 1302. Modification of Indenture by Supplemental Indenture
With Consent of Holders....................................79
SECTION 1303. Trustee to Join in Execution of Supplemental Indenture........80
SECTION 1304. Effect of Supplemental Indenture..............................81
SECTION 1305. Matters Provided for in Supplemental Indenture May Be
Noted on Debt Securities, or New Debt Securities
Appropriately Modified May Be Issued in Exchange for
Outstanding Debt Securities................................81
SECTION 1306. Supplemental Indentures to Conform to Trust Indenture Act.....82
ARTICLE FOURTEEN
PROVISIONS OF GENERAL APPLICATION
SECTION 1401. Consolidation, Merger, Sale or Lease..........................82
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SECTION 1402. Benefits of Indenture.........................................82
SECTION 1403. Evidence of Compliance with Conditions Precedent;
Form of Documents Delivered to Trustee. 83
SECTION 1404. Conflict with Trust Indenture Act.............................84
SECTION 1405. Notices, etc., to Trustee and Company.........................84
SECTION 1406. Notice to Holders; Waiver.....................................85
SECTION 1407. Effect of Headings and Table of Contents......................85
SECTION 1408. Successors and Assigns........................................85
SECTION 1409. Separability Clause...........................................85
SECTION 1410. Governing Law.................................................86
SECTION 1411. Legal Holidays................................................86
SECTION 1412. Execution in Counterparts.....................................86
Signatures and Seals..........................................................87
Acknowledgements..............................................................88
Exhibit A.....................................................................89
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INDENTURE
INDENTURE, dated as of March 15, 1988, between THE LIMITED, INC., a
corporation organized and existing under the laws of the State of Delaware
(hereinafter called the "Company") having its principal place of business at Xxx
Xxxxxxx Xxxxxxx, Xxxxxxxx, Xxxx 00000, and THE BANK OF NEW YORK, a corporation
organized and existing under the laws of the State of New York, as trustee
(hereinafter called the "Trustee") having its Corporate Trust Office at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Corporate Trust Trustee
Administration.
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issue, in one or more series
as in this Indenture provided, from time to time of its debentures, notes, bonds
and other evidences of indebtedness (herein called the "Debt Securities") and,
to provide the general terms and conditions upon which the Debt Securities are
to be authenticated, issued and delivered, the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, the Trustee has power to enter into this Indenture and to accept
and execute the trusts herein created; and
WHEREAS, the Company represents that all acts and things necessary to
constitute these presents a valid indenture and agreement according to its
terms, have been done and performed, that the execution and delivery of the Debt
Securities of any series will, at the time of such execution and delivery, have
been duly authorized by the Company and that any such Debt Securities, when so
executed and delivered by the Company and when authenticated, issued and
delivered by the Trustee, will be legal, valid and binding obligations of the
Company; and the Company, in the exercise of each and every legal right and
power in it vested, executes this Indenture and proposes to make, execute, issue
and deliver Debt Securities from time to time as herein provided;
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree
that, in consideration of the acceptance and purchase of the Debt Securities by
the holders thereof, the Company covenants and agrees with the Trustee, for the
equal benefit of all the holders from time to time of the Debt Securities,
without preference, priority or distinction of any thereof over any other
thereof by reason of priority in time of issuance or negotiation, or otherwise,
as follows:
ARTICLE ONE
DEFINITIONS
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Ten, are defined in that
Article.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board or any committee of officers or
other representatives of the Company duly authorized by a Board Resolution to
act on behalf of that board or in its stead.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
2
"Business Day", when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Debt Securities,
means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on
which banking institutions in that Place of Payment or other particular location
are authorized or obligated by law to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means The Limited, Inc. and, subject to the provisions of Section
1401, shall also include its successors and assigns.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by the Chairman of the Board of
Directors, the President or an Executive Vice President, and by the Treasurer,
an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary
or an Assistant Secretary of the Company, and delivered to the Trustee.
"Components" with respect to a composite currency (including but not
limited to the ECU) means the currency amounts that are components of such
composite currency on the Conversion Date. If after such Conversion Date the
official unit of any component currency is altered by way of combination or
subdivision, the number of units of such currency shall be divided or multiplied
in the same proportion to calculate the Component. If after such Conversion Date
two or more component currencies are consolidated into a single currency, the
amounts of those currencies as Components shall be replaced by an amount in such
single currency equal to the sum of the amounts of such consolidated component
currencies expressed in such single currency, and such amount shall thereafter
be a Component. If after such Conversion Date any component currency shall be
divided into two or more currencies, the amount of such currency as a Component
shall be replaced by amounts of such two or more currencies, each of which shall
be equal to the amount of such former component currency divided by the number
of currencies into which such component currency was divided, and such amounts
shall thereafter be Components.
"Conversion Date" with respect to a composite currency (including but not
limited to the ECU) has the meaning specified in Section 311.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered. The
Corporate Trust Office of the initial Trustee shall be at the address set forth
in the
3
first paragraph of this Indenture until the Trustee shall notify the Company of
a change thereof.
The term "corporation" includes corporations, associations, companies and
business trusts.
"Debt Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Debt Securities authenticated and
delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Debt Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Debt Securities
of any such series shall mean the Depositary with respect to the Debt Securities
of that series.
"Dollar" or "$" means such coin or currency of the United States as at the
time of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 601.
"Exchange Rate" means (a) with respect to a currency (other than a
composite currency) in which payment is to be made on a series of Debt
Securities denominated in a composite currency, the exchange rate between such
composite currency and such currency reported by the agency or organization, if
any, designated pursuant to Section 301(11) or, in the case of ECU, by the
Council of the European Communities (whose reports are currently based on the
rates in effect at 2:30 P.M., Brussels time, on the relevant exchange markets),
as appropriate, or if such exchange rate is not or ceases to be so reported,
then such exchange rate as shall be determined by the Company using, in its sole
discretion and without liability on its part, quotations from one or more major
banks in The City of New York or such other quotations as the Company shall deem
appropriate, on the applicable Regular or Special Record Date or the fifteenth
day
4
immediately preceding Maturity, as the case may be, with respect to Debt
Securities of such series, (b) with respect to Dollars in which payment is to be
made on a series of Debt Securities denominated in a Foreign Currency, the noon
Dollar buying rate for that currency for cable transfers quoted in The City of
New York on the Regular or Special Record Date with respect to such Interest
Payment Date or the fifteenth day immediately preceding Maturity, as the case
may be, with respect to Debt Securities of such series, as certified for customs
purposes by the Federal Reserve Bank of New York, (c) with respect to a Foreign
Currency in which payment is to be made on a series of Debt Securities
denominated in Dollars or converted into Dollars pursuant to Section 311(d)(ii),
the noon Dollar selling rate for that currency for cable transfers quoted in The
City of New York on the Regular or Special Record Date with respect to such
Interest Payment Date or the fifteenth day immediately preceding Maturity, as
the case may be, with respect to Debt Securities of such series, as certified
for customs purposes by the Federal Reserve Bank of New York, and (d) with
respect to a Foreign Currency in which payment is to be made on a series of Debt
Securities denominated in a different Foreign Currency, the exchange rate
between such Foreign Currencies determined in the manner specified pursuant to
Section 301(14). Except in the situation contemplated in (a) above, if for any
reason such rates are not available with respect to one or more currencies for
which an Exchange Rate is required, the Company shall use, in its sole
discretion and without liability on its part, such quotations of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in The City of New York or in the country of issue
of the currency in question, or such other quotations as the Company shall deem
appropriate. Any reference herein to the "applicable" Exchange Rate shall mean
the Exchange Rate as set forth in the applicable Exchange Rate Officer's
Certificate. Unless otherwise specified by the Company, if there is more than
one market for dealing in any currency by reason of foreign exchange regulations
or otherwise, the market to be used in respect of such currency shall be that
upon which an issuer of securities denominated in such currency that is similar
to the Company in all material respects would purchase such currency in order to
make payments in respect of such securities.
"Exchange Rate Officer's Certificate", with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of Debt
Securities, means a certificate setting forth the applicable Exchange Rate as of
the Regular or Special Record Date with respect to such Interest Payment Date or
the fifteenth day immediately preceding Maturity, as the case may be, with
respect to Debt Securities of such series and the amounts payable in Dollars and
Foreign Currencies in respect of the principal of (and premium, if any) and
interest on any such Debt Securities denominated in ECU, any other composite
currency or any Foreign Currency, and signed by the Chairman or a Vice Chairman
of the Board of Directors, the President, an Executive Vice President or a Vice
President, the Treasurer or any Assistant Treasurer or the Controller or any
Assistant Controller of the Company, and delivered to the Trustee.
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"Foreign Currency" means a currency issued by the government of any country
other than the United States.
"Global Security" means a Debt Security evidencing all or a part of a
series of Debt Securities, issued to the Depositary for such series in
accordance with Section 303, and bearing the legend prescribed in Section
303(c).
"Government Obligations" means securities that are (i) direct obligations
of the United States for the payment of which its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States, the timely payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under Clause (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt: provided, that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the Government Obligation or the specific payment
of interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Holder" means a Person in whose name a Debt Security is registered in the
Security Register.
"Indebtedness" means any and all obligations of a corporation for money
borrowed which in accordance with generally accepted accounting principles would
be reflected on the balance sheet of such corporation as a liability on the date
as of which Indebtedness is to be determined.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented, amended or restated by or pursuant to one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and, unless the context otherwise requires, shall include the
terms of a particular series Debt Securities established as contemplated by
Section 301.
The term "interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
6
"Interest Payment Date" with respect to any Debt Security means the Stated
Maturity of an instalment of interest on such Debt Security.
"Mandatory Sinking Fund Payment" has the meaning specified in Section 407.
"Maturity" with respect to any Debt Security means the date on which the
principal of such Debt Security or any instalment thereof becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call or redemption, operation of any sinking fund,
repayment at the option of the Holder or otherwise.
"Officers' Certificate", when used with respect to the Company, means a
certificate signed by the Chairman of the Board of Directors, the President or
an Executive Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means an opinion in writing prepared in accordance
with Section 1403 and signed by legal counsel, who may be an employee of or of
counsel to the Company, or may be other counsel satisfactory to the Trustee,
which is delivered to the Trustee.
"Optional Sinking Fund Payment" has the meaning specified in Section 407.
"Original Issue Discount Security" means any Debt Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Section 602.
"Outstanding", when used as of any particular time with reference to Debt
Securities, means, subject to Section 703, all Debt Securities theretofore
authenticated and delivered by the Trustee under this Indenture, except:
(i) Debt Securities or portions thereof for which funds sufficient to
pay the principal thereof, premium, if any, thereon and all unpaid interest
thereon at Maturity or to the date fixed for redemption shall have been
deposited in trust for such purpose as provided herein with the Trustee or
with any Paying Agent (other than the Company) or shall have been set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent); provided that, if such Debt Securities are to be redeemed,
notice of such redemption thereof shall have been duly given or provision
satisfactory to the Trustee for the giving of such notice shall have been
made;
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(ii) Debt Securities theretofore cancelled and delivered to the
Trustee or which have been surrendered to the Trustee for cancellation; and
(iii) Debt Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Debt Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Debt Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Debt Securities are held by a
bona fide purchaser in whose hands such Debt Securities are valid
obligations of the Company.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities on behalf
of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Debt Securities of any
series, means each place where the principal of (and premium, if any) or
interest on the Debt Securities of that series are payable, as specified in the
manner contemplated by Section 301.
"Predecessor Security" of any particular Debt Security means every previous
Debt Security evidencing all or a portion of the same debt as that evidenced by
such particular Debt Security; and, for the purposes of this definition, any
Debt Security authenticated and delivered under Section 306 in lieu of a lost,
destroyed or stolen Debt Security shall be deemed to evidence the same debt as
the lost, destroyed or stolen Debt Security.
"Redemption Date", when used with respect to any Debt Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture and the terms of such Debt Security.
"Redemption Price", when used with respect to any Debt Security to be
redeemed, means the price (exclusive of accrued interest) at which it is to be
redeemed pursuant to this Indenture and the terms of such Debt Security.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Debt Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
officer or employee in the Corporate Trust Office of the Trustee or any other
8
officer or employee of the Trustee customarily performing functions similar to
those performed by any of the above-designated officers or employees and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Significant Subsidiary" has the meaning specified in Section 504.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Debt Security or any
instalment of interest thereon, means the date specified in such Debt Security
as the fixed date on which the principal of such Debt Security or such
instalment of interest is due and payable.
"Subsidiary" means a corporation, a majority of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock having 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;
provided, however, that "voting stock" shall not include stock which the Company
or any of its Subsidiaries owning such stock are required or have agreed not to
vote, or the voting rights with respect to which have been granted to a Person
other than the Company or any of its Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder and, if at any time there is
more than one such Person, "Trustee" as used with respect to the Debt Securities
of any series shall mean the Trustee with respect to Debt Securities of that
series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
1306.
"United States" means the United States of America (including the States
thereof and the District of Columbia), its territories and possessions and other
areas subject to its jurisdiction.
"Voting Stock" has the meaning specified in Section 504.
9
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. Forms Generally.
All Debt Securities and the Trustee's certificate of authentication shall
have such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture or by a Board Resolution and as
set forth in an Officers' Certificate or by an indenture supplemental hereto and
may have such letters, numbers or other marks of identification or designation
and such legends or endorsements placed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Indenture,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities exchange on
which any of the Debt Securities may be listed or of any automated quotation
system on which they may be quoted, or to conform to usage.
Debt Securities in definitive form shall be printed, lithographed or
engraved, or produced by any combination of these methods or in any other manner
determined by the officers executing such Debt Securities, as evidenced by their
execution of such Debt Securities.
SECTION 202. Forms of Debt Securities.
Each Debt Security shall be substantially in such form as shall be
established from time to time in or pursuant to a Board Resolution and set forth
in an Officers' Certificate, or established in one or more indentures
supplemental hereto, which shall set forth the information required by Section
301. If so provided as contemplated by Section 301, the Debt Securities of a
series shall be issuable in the form of one or more Global Securities.
SECTION 203. Form of Trustee's Certificate of Authentication.
The form of the Trustee's certificate of authentication to be borne by each
Debt Security shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
---------------------------
Authorized Signatory
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ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Debt Securities that may be authenticated
and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established in or pursuant to one or more Board Resolutions and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt
Securities, except to the extent that additional Debt Securities of an
existing series are being issued);
(2) the limit, if any, upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to Section 304, 305, 306, 406 or 1305);
(3) the date or dates on which the principal of the Debt Securities of
the series is payable;
(4) the rate or rates, if any, at which the Debt Securities of the
series shall bear interest, or the method by which such rate or rates shall
be determined, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Interest Payment Date;
(5) the place or places where the principal of (and premium, if any)
or interest on Debt Securities of the series shall be payable, and whether
any such payments may be made by wire transfer;
(6) the period or periods within which or the date or dates on which,
if any, the price or prices at which and the terms and conditions upon
which Debt Securities of the series may be redeemed, in whole or in part,
at the option of the Company;
11
(7) the obligation, if any, of the Company to redeem, repay or
purchase Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the period
or periods within which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(8) whether the Debt Securities of the series shall be issued in the
form of one or more Global Securities and, in such case, the Depositary for
such Global Security or Securities;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Debt Securities of the series shall be
issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 602;
(11) the currency of denomination of the Debt Securities of the
series, which may be in Dollars, any Foreign Currency or any composite
currency (including but not limited to ECU), and, if such currency of
denomination is a composite currency other than ECU, the agency or
organization, if any, responsible for overseeing such composite currency;
(12) the currency or currencies in which payment of the principal of
(and premium, if any) and interest on Debt Securities of the series will be
made, and the currency or currencies (in addition to Dollars), if any, in
which payment of the principal of (and premium, if any) or interest on Debt
Securities of the series, at the election of each of the Holders thereof,
may also be payable;
(13) if the amount of payments of principal of (and premium, if any)
or interest on Debt Securities of the series may be determined with
reference to an index based on a currency or currencies other than that in
which the Debt Securities of the series denominated or designated to be
payable, the manner in which such amounts shall be determined;
(14) if the payments of principal of (and premium, if any) or the
interest on the Debt Securities of the series are to be made in a Foreign
Currency other than the Foreign Currency in which such Debt Securities are
denominated, the manner in which
12
the exchange rate with respect to such payments shall be determined;
(15) whether the Debt Securities of the series shall be subject to
defeasance pursuant to either or both of Sections 1103 and 1104;
(16) whether the Debt Securities of the series shall be issued with
warrants to purchase such Debt Securities or the Debt Securities of any
other series attached thereto; and
(17) any other terms of the Debt Securities of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution (as set forth in such Officers' Certificate) or in any
such indenture supplemental hereto.
If any of the terms of a series of Debt Securities are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Debt Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified in accordance with
the requirements of Section 301. In the absence of any such provisions with
respect to the Debt Securities of any series and except as provided in Section
303, the Debt Securities of such series shall be issuable in denominations of
$1,000 or any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
(a) The Debt Securities shall be executed on behalf of the Company by the
Chairman of its Board of Directors, its President or one of its Executive Vice
Presidents, and by its Treasurer or any Assistant Treasurer or its Secretary or
any Assistant Secretary under its corporate seal. The signature of any of these
officers on the Debt Securities may be manual or facsimile. The seal of the
Company may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Debt Securities. Typographical and
other minor errors or defects in any such reproduction of the seal or any such
13
signature shall not affect the validity or enforceability of any Debt Security
that has been duly authenticated and delivered by the Trustee.
Debt Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Debt Securities or did
not hold such offices at the date of such Debt Securities.
(b) At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series executed
by the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Debt Securities; and the Trustee in
accordance with the Company Order shall authenticate and deliver such Debt
Securities. The Trustee shall be entitled to receive, prior to the
authentication and delivery of such Debt Securities, the supplemental indenture
or the Board Resolution in or pursuant to which the terms and form of such Debt
Securities have been established (and, if such terms and form are established in
or pursuant to a Board Resolution, the Officers' Certificate setting forth such
terms and form), an Officers' Certificate as to the absence of any event which
is, or after notice or lapse of time or both would become, an Event of Default,
and an Opinion of Counsel stating that:
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Debt Securities
conform to the requirements of this Indenture and constitute sufficient
authority hereunder for the Trustee to authenticate and deliver such Debt
Securities;
(2) the form of such Debt Securities has been established in
conformity with the provisions of this Indenture;
(3) the terms of such Debt Securities have been established in
conformity with the provisions of this Indenture;
(4) in the event that the form or terms of such Debt Securities have
been established in a supplemental indenture, the execution and delivery of
such supplemental indenture have been duly authorized by all necessary
corporate action of the Company, such supplemental indenture has been duly
executed and delivered by the Company and, assuming due authorization,
execution and delivery by the Trustee, is a legal, valid, binding and
enforceable instrument of the Company, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally, and
subject, as to enforceability, to general principles of equity
14
(regardless of whether enforcement is sought in a proceeding in equity or
at law);
(5) the execution and delivery of such Debt Securities have been duly
authorized by all necessary corporate action of the Company and such Debt
Securities have been duly executed by the Company and, assuming due
authentication by the Trustee and delivery by the Company, are the legal,
valid, binding and enforceable obligations of the Company, entitled to the
benefits of the Indenture, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law); and
(6) such other matters as the Trustee may reasonably request.
Notwithstanding the provisions of Section 301 and of this Section 303, if
all the Debt Securities of a series are not to be originally issued at one time,
it shall not be necessary to deliver the Officers' Certificate or supplemental
indenture otherwise required pursuant to Section 301 or the Company Order, Board
Resolution and Officers' Certificate or supplemental indenture, and Opinion of
Counsel required pursuant to this Section 303 at or prior to the time of
authentication of each Debt Security of such series if such documents were
delivered at or prior to the time of authentication upon original issuance of
the first Debt Security of such series to be issued.
(c) If the Company shall establish pursuant to Section 301 that the Debt
Securities of a series are to be issued in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall, in accordance
with this Section and the Company Order with respect to such series,
authenticate and deliver one or more Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount of
all of the Debt Securities of such series issued and not yet cancelled, (ii)
shall be registered in the name of the Depositary for such 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 Debt Securities
in definitive registered form, this Debt 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
15
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
(d) Each Depositary designated pursuant to Section 301 must, at the time of
its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934 and any other
applicable statute or regulation.
(e) The Trustee shall have the right to decline to authenticate and deliver
any Debt Security under this Section if the Trustee, upon the advice of counsel,
determines that such action may not lawfully be taken or if the Trustee, by a
committee of Responsible Officers, shall determine in good faith that the
authentication and delivery of such Debt Security would be unjustly prejudicial
to Holders of Outstanding Debt Securities.
(f) Each Debt Security shall be dated the date of its authentication.
(g) No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Debt
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature of one of its authorized
signatories, and such certificate upon any Debt Security shall be conclusive
evidence, and the only evidence, that such Debt Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.
(h) The Trustee shall have the right to decline to authenticate and deliver
any Debt Securities under this Section if the issue of such Debt Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Debt Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
SECTION 304. Temporary Debt Securities.
Pending the preparation of definitive Debt Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Debt Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Debt Securities in lieu of which
they are issued, in registered form and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Debt Securities may determine, as evidenced by their execution of such Debt
Securities. In the case of Debt Securities of any series, such temporary
16
Debt Securities may be in global form, representing all of the Outstanding Debt
Securities of such series.
If temporary Debt Securities of any series are issued, the Company will
cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series upon surrender of the temporary Debt
Securities of such series at the office or agency of the Company in a Place of
Payment for such series without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Debt Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Debt Securities of such series in
any authorized denominations. Until so exchanged, the temporary Debt Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Debt Securities of such series.
SECTION 305. Registration, Transfer and Exchange.
The Company shall cause to be kept a register (herein sometimes referred to
as the "Security Register") in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of Debt
Securities and of transfers of Debt Securities. Separate registers may be kept
for separate series of Debt Securities. Unless and until otherwise determined by
the Company, the Security Register shall be kept at the office or agency of the
Company maintained pursuant to Section 502, which office or agency is hereby
appointed "Security Registrar" for the purpose of registering Debt Securities
and registering the transfer of Debt Securities as herein provided. At all
reasonable times the Security Register shall be open for inspection by the
Trustee.
Upon surrender for registration of transfer of any Debt Security of any
series at the office or agency of the Company maintained for such purpose, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, a like aggregate principal
amount of one or more new Debt Securities of the same series in any authorized
denominations.
Notwithstanding any other provision of this Section 305, unless and until
it is exchanged in whole or in part for Debt Securities in definitive registered
form, a Global Security representing all or a portion of the Debt 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.
17
At the option of the Holder, Debt Securities of any series (except a Global
Security) may be exchanged for a like aggregate principal amount of other Debt
Securities of the same series in any authorized denominations upon surrender of
the Debt Securities to be exchanged at such office or agency. Whenever any Debt
Securities are so surrendered for exchange, the Company shall execute and the
Trustee shall authenticate and deliver the Debt Securities which the Holder
making the exchange is entitled to receive.
If at any time the Depositary for the Debt Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Debt Securities of such series or if at any time the Depositary for the Debt
Securities of such series shall no longer be eligible under Section 303(d), the
Company shall appoint a successor Depositary with respect to the Debt Securities
of such series. If a successor Depositary for the Debt Securities of such series
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such ineligibility, the Company's election pursuant
to Section 301(8) shall no longer be effective with respect to the Debt
Securities of such series and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Debt Securities of such series, will authenticate and deliver, Debt Securities
of such series in definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Global Security or Securities representing such series, in exchange for such
Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Debt Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by a Global Security or Securities. In
such event the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Debt Securities of such series in
definitive registered form without coupons, in any authorized denominations, in
an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series, in exchange for such Global
Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Debt Securities, the Depositary for such series of Debt Securities may
surrender a Global Security for such series of Debt Securities in exchange in
whole or in part for Debt Securities of such series in definitive registered
form on such terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall authenticate and
deliver, without service charge,
18
(i) to the Person specified by such Depositary a new Debt Security or
Securities of the same series, of any authorized denomination as requested
by such Person, in an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Debt Securities
authenticated and delivered pursuant to Clause (i) above.
Upon the exchange of a Global Security for Debt Securities in definitive
registered form without coupons, in authorized denominations, such Global
Security shall be cancelled by the Trustee. Debt Securities in definitive
registered form without coupons issued in exchange for a Global Security
pursuant to this Section 305 shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Debt Securities to or as
directed by the Persons in whose names such Debt Securities are so registered.
All Debt Securities issued upon any transfer or exchange of Debt Securities
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under the Indenture, as the Debt Securities
surrendered upon such transfer or exchange.
Every Debt Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company, the Security Registrar or
the Trustee) be duly endorsed by the appropriate persons and be accompanied by
reasonable assurances that the endorsements are genuine and effective, or shall
be accompanied by a written instrument of transfer in form satisfactory to the
Company, the Security Registrar and the Trustee, duly executed by the Holder
thereof or his attorney duly authorized in writing, and such other documentation
as the Company, the Security Registrar or the Trustee may reasonably require.
No service charge shall be made for any transfer or exchange of Debt
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Debt Securities, other than exchanges pursuant to
Section 304, 406 or 1305 not involving any transfer.
The Company shall not be required to issue, register the transfer of or
exchange any Debt Security of any particular series during a period
19
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of Debt Securities of such series selected for redemption
under Section 402 and ending at the close of business on the day of such
mailing, or (ii) to register the transfer of or exchange any Debt Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Debt Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt Security is surrendered to the Trustee or (ii)
the Company and the Trustee receive evidence to their satisfaction of the
ownership of and the destruction, loss or theft of any Debt Security, and there
is delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Debt Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Debt Security, a new Debt Security of like
tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debt Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debt Security, pay such Debt Security.
Upon the issuance of any new Debt Security under this Section 306, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Company and the Trustee)
connected therewith.
Every new Debt Security of any series issued pursuant to this Section 306
in lieu of any destroyed, lost or stolen Debt Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Debt Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debt Securities of such series duly
issued hereunder.
The provisions of this Section 306 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debt Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Debt Security which is payable and is punctually paid or
duly provided for on any Interest Payment Date shall be paid to the Person
20
in whose name that Debt Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. At the option of the Company, payment of interest on any Debt Security
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or, if so specified in the
manner contemplated by Section 301, by wire transfer to an account designated by
such Person in writing to the Trustee.
Any interest on any Debt Security of any series which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of his having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Debt Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Debt Security of such series, the date of the proposed payment and the
Special Record Date therefor, which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less
then 10 days after the receipt by the Trustee of the notice of the proposed
payment. At the same time, the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Unless the Trustee is acting as the Security Registrar, promptly after such
Special Record Date the Company shall furnish the Trustee a list, or shall
make arrangements satisfactory to the Trustee with respect thereto, of the
names and addresses of, and principal amounts of Debt Securities held by,
the Holders appearing on the Security Register at the close of business on
such Special Record Date. In the name and at the expense of the Company,
the Trustee shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Debt Securities of such series at his
address as it appears in the Security Register, not less than 10 days prior
to such Special Record Date.
21
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names the Debt Securities of
such series (or their respective Predecessor Securities) are registered on
such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the Debt
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Debt Securities
may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause (2), such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each Debt Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Debt Security shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Debt Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Debt Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person whose name such Debt Security is registered as the owner of such Debt
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 307) interest on such Debt Security and for all
other purposes whatsoever, whether or not such Debt Security shall be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 309. Cancellation.
All Debt Securities surrendered for payment, redemption, transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Debt Securities
previously authenticated and delivered hereunder which the Company may have
acquired in
22
any manner whatsoever, and all Debt Securities so delivered shall be promptly
cancelled by the Trustee. Acquisition by the Company of any Debt Security shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Debt Securities unless and until the same is delivered to the Trustee for
cancellation. No Debt Securities shall be authenticated in lieu of or in
exchange for any Debt Securities cancelled as provided in this Section, except
as expressly permitted in this Indenture. All cancelled Debt Securities held by
the Trustee may be destroyed, and the Trustee shall certify to the Company any
destruction thereof, unless, by a Company Order, the Company shall direct that
cancelled Debt Securities be returned to it.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Payment in Currencies.
(a) Payment of the principal of (and premium, if any) and interest on the
Debt Securities of any series shall be made in the currency or currencies
specified pursuant to Section 301; provided that, if so specified in the manner
provided in Section 301, the Holder of a Debt Security of such series may elect
to receive such payment in any one of (i) Dollars and (ii) any other currency
designated for such purpose pursuant to Section 301. A Holder may make such
election by delivering to the Trustee a written notice thereof, substantially in
the form attached hereto as Exhibit A or in such other form as may be acceptable
to the Trustee, not later than the close of business on the Regular or Special
Record Date immediately preceding the applicable Interest Payment Date or the
fifteenth day immediately preceding Maturity, as the case may be, with respect
to Debt Securities of such series. Such election shall remain in effect with
respect to such Holder until such Holder delivers to the Trustee a written
notice substantially in the form attached hereto as Exhibit A or in such other
form as may be acceptable to the Trustee specifying a change in the currency in
which such payment is to be made; provided that any such notice must be
delivered to the Trustee not later than the close of business on the Regular or
Special Record Date immediately preceding the next Interest Payment Date or the
fifteenth day immediately preceding Maturity, as the case may be, with respect
to Debt Securities of such series in order to be effective for the payment to be
made thereon; and provided further that no such change in currency may be made
with respect to payments to be made on any Debt Security with respect to which
notice of redemption has been given by the Company pursuant to Section 402.
(b) Except as otherwise specified in the manner contemplated by Section
301, the Trustee shall deliver to the Company, not later than the fourth
23
Business Day following each Regular or Special Record Date with respect to an
Interest Payment Date or the tenth Business Day immediately preceding Maturity,
as the case may be, with respect to a series of Debt Securities, a written
notice specifying, in the currency in which such series of Debt Securities is
denominated, the aggregate amount of the principal of (and premium, if any) and
interest on such series of Debt Securities to be paid on such payment date. If
payments in respect of such series of Debt Securities are designated to be made
in a currency other than the currency in which such series of Debt Securities is
denominated or if at least one Holder has made the election referred to in
Subsection (a) above with respect to such series of Debt Securities, then the
written notice referred to in the preceding sentence shall also specify, in each
currency in which payment in respect of such series of Debt Securities is to be
made pursuant to said Subsection (a), the amount of principal of (and premium,
if any) and interest on such series of Debt Securities to be paid in such
currency on such payment date.
(c) The Company shall deliver to the Trustee, not later than the eighth
Business Day following each Regular or Special Record Date or the tenth day
immediately preceding Maturity, as the case may be, with respect to a series of
Debt Securities, an Exchange Rate Officer's Certificate in respect of the Dollar
or Foreign Currency payments to be made on such payment date in respect of such
Debt Securities. Except as otherwise specified in the manner contemplated by
Section 301, the amount receivable by Holders of a series of Debt Securities who
have elected payment in a currency other than the currency in which such series
of Debt Securities is denominated as provided in Subsection (a) above shall be
determined by the Company on the basis of the applicable Exchange Rate.
(d) If the Foreign Currency in which a series of Debt Securities is
denominated ceases to be used both by the government of the country that issued
such currency and for the settlement of transactions by public institutions of
or within the international banking community, then, with respect to each date
for the payment of principal of (and premium, if any) and interest on such
series of Debt Securities occurring after the final date on which such Foreign
Currency was so used, all payments with respect to the Debt Securities of such
series shall be made in Dollars. If payment is to be made in Dollars to the
Holders of any such series of Debt Securities pursuant to the provisions of the
preceding sentence, then the amount to be paid in Dollars on a payment date by
the Company to the Trustee and by the Trustee or any Paying Agent to Holders
shall be determined by the Trustee as of the Regular or Special Record Date
immediately preceding the applicable Interest Payment Date or the fifteenth day
immediately preceding Maturity, as the case may be, with respect to Debt
Securities of such series, and shall be equal to the sum obtained by
translating the specified Foreign Currency into Dollars at the applicable
Exchange Rate on the last Record Date on which such Foreign Currency was so
used in either fashion; provided that payment to a Holder of a Debt Security of
such series shall be made
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in a different Foreign Currency if that holder has properly elected or properly
elects payment in such Foreign Currency as provided for by Subsection (a) above.
If a Holder of a Debt Security denominated in a composite currency has
elected payment in a specified Foreign Currency as provided for by Subsection
(a) above and such Foreign Currency ceases to be used both by the government of
the country that issued such currency and for the settlement of transactions by
public institutions of or within the international banking community, such
Holder shall, subject to Subsection (d)(ii) below, receive payment in such
composite currency; provided that such payment to such Holder shall be made in a
different Foreign Currency or in Dollars if that Holder has properly elected or
properly elects payments in such Foreign Currency or in Dollars as provided for
by Subsection (a) above.
(ii) If the ECU ceases to be used both within the European Monetary
System and for the settlement of transactions by public institutions of or
within the European Communities, or if any other composite currency in
which a Debt Security is denominated or payable ceases to be used for the
purposes for which it was established, then, with respect to each date for
the payment of principal of (and premium, if any) and interest on a series
of Debt Securities denominated or payable in ECU or such other composite
currency, as the case may be, occurring after the last date on which the
ECU or such other composite currency, as the case may be, was so used (the
"Conversion Date"), all payments in respect of the Debt Securities of such
series shall be made in Dollars; provided that payment to a Holder of a
Debt Security of such series shall be made in a Foreign Currency if that
Holder has properly elected or properly elects payment in such Foreign
Currency as provided for by Subsection (a) above.
If payment in respect of Debt Securities of a series denominated in ECU or
any other composite currency is to be made in Dollars pursuant to the provisions
of the preceding paragraph, then the amount to be paid in Dollars on a payment
date by the Company to the Trustee and by the Trustee or any Paying Agent to
Holders shall be determined by the Trustee as of the Regular or Special Record
Date immediately preceding the applicable Interest Payment Date or the fifteenth
day immediately preceding Maturity, as the case may be, with respect to Debt
Securities of such series, and shall be equal to the sum of the amounts obtained
by translating each Component of such composite currency into Dollars at the
applicable Exchange Rate for such Component on such Record Date or fifteenth
day, as the case may be, multiplied by the number of ECU or units of such other
composite currency, as the case may be, that would have been so paid had the ECU
or such other composite currency, as the case may be, not ceased to be so used.
If payment is to be made in a Foreign Currency to a Holder of a Debt Security of
such series pursuant to the preceding paragraph, then the amount to be
25
paid in such Foreign Currency on a payment date by the Company to the Trustee
and by the Trustee or any Paying Agent to such Holder shall be determined by
the Trustee as of such Record Date or fifteenth day, as the case may be, and
shall be determined by (A) translating each Component of such composite
currency into Dollars at the applicable Exchange Rate for such Component on
such Record Date or fifteenth day, as the case may be, and (B) translating the
sum in Dollars so obtained into such Foreign Currency at the applicable
Exchange Rate for such Foreign Currency on such Record Date or fifteenth day,
as the case may be.
All decisions and determinations of the Trustee regarding the translation
of Foreign Currency into Dollars or the translation of ECU or any other
composite currency into Dollars or the translation of Dollars into Foreign
Currency pursuant to this Subsection (d) shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company
and all Holders of the Debt Securities.
If a Foreign Currency in which a series of Debt Securities is denominated
or in which payments in respect of Debt Securities of such series may be made
ceases to be used both by the government of the country that issued such
currency and for the settlement of transactions by public institutions of or
within the international banking community, the Company, in the event that it
learns thereof (without any duty to investigate), will immediately give notice
thereof to the Trustee (and the Trustee promptly thereafter will give notice to
the relevant Holders in the manner provided in Section 1406) specifying the last
date on which such Foreign Currency was so used in either fashion. In the event
the ECU ceases to be used both within the European Monetary System and for the
settlement of transactions by public institutions of or within the European
Communities, or any other composite currency in which a Debt Security is
denominated or payable ceases to be used for the purposes for which it was
established, the Company, upon learning thereof, will immediately give notice
thereof to the Trustee (and the Trustee promptly thereafter will give notice to
the relevant Holders in the manner provided in Section 1406) specifying the
Conversion Date with respect to the ECU or such other composite currency and the
Components of the ECU or such other composite currency on such Conversion Date.
In the event of any subsequent change in any such Component, the Company, upon
learning thereof, will give notice to the Trustee similarly. The Trustee shall
be fully justified and protected in relying and acting upon the information so
received by it from the Company and shall not otherwise have any duty or
obligation to determine such information independently.
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ARTICLE FOUR
REDEMPTION OF DEBT SECURITIES; SINKING FUND
SECTION 401. Applicability of Right of Redemption.
Redemption of Debt Securities (other than pursuant to a sinking fund or
analogous provision) permitted by the terms of any series of Debt Securities
shall be made in accordance with such terms and the applicable provisions of
this Article; provided, however, that if any such terms of a series of Debt
Securities shall conflict with any provision of this Article, the terms of such
series shall govern.
SECTION 402. Notice of Redemption.
If the Company shall elect to redeem the Debt Securities of any series in
whole or in part as aforesaid, it shall fix a date for redemption and give
notice of its election so to redeem by mailing written notice, postage prepaid,
at least 30 days but not more than 60 days before the Redemption Date, to each
Holder of Debt Securities to be redeemed as a whole or in part. Any notice which
shall be mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the Holder shall receive such notice.
Failure to mail such notice, or any defect in the notice mailed, to the Holder
of any Debt Security designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Debt
Security.
Each notice of redemption shall state such election to redeem on the part
of the Company, the Redemption Date, the Place or Places of Payment for the Debt
Securities to be redeemed and the Redemption Price and shall state further that
the Debt Securities designated in such notice for redemption are required to be
presented on or after such Redemption Date and at such Place or Places of
Payment and that interest to the Redemption Date on the Debt Securities called
for redemption will be paid as specified in said notice and shall cease to
accrue thereon on such date. If less than all Outstanding Debt Securities of a
series are to be redeemed, the notice shall also identify (and, in the case of
partial redemption, state the principal amounts of) the particular Debt
Securities that are to be redeemed. In case of partial redemption, the notice
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
Debt Security, a new Debt Security of the same series in aggregate principal
amount equal to the unredeemed portion thereof will be issued.
Any notice of redemption of Debt Securities at the option of the Company
shall be given by the Company or, at the Company's request, by the Trustee in
the name and at the expense of the Company.
27
SECTION 403. Selection of Debt Securities on Partial Redemption.
Except as otherwise specified in the manner contemplated by Section 301 for
the Debt Securities of any series, if the Company shall at any time elect to
redeem less than all the Debt Securities of such series then Outstanding, it
shall notify the Trustee of the principal amount of Debt Securities to be
redeemed before the mailing of the notice of redemption pursuant to Section 402,
and thereupon the Trustee shall select, in such manner as the Trustee shall deem
appropriate and fair and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Debt Securities of
such series or any integral multiple thereof that is also an authorized
denomination, but in no event shall such portion be less than $1,000) of the
principal amount of Debt Securities of such series of a denomination larger than
the minimum authorized denomination for Debt Securities of such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Security
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Debt Securities shall relate, in
the case of any Debt Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debt Security that has been or is to be
redeemed.
SECTION 404. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 503) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Debt
Securities or portions thereof which are to be redeemed on that date, in the
currency or currencies in which such Redemption Price shall be paid.
SECTION 405. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt Securities so
to be redeemed shall, on the Redemption Date specified in such notice, become
due and payable at the applicable Redemption Price, together with interest
accrued thereon to such Redemption Date, and from and after such Redemption Date
(unless the Company shall default in the payment of such Redemption Price or any
such accrued interest), interest on such Debt Securities shall cease to accrue.
Upon surrender of such Debt Securities for redemption in accordance with said
notice, such Debt Securities shall be paid by the Company at the applicable
Redemption Price, together with interest accrued to the
28
Redemption Date; provided, however, that instalments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Debt Securities, or one or more Predecessor Securities, registered as
such on the relevant Record Dates according to their terms and the provisions of
Section 307.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof and premium, if any,
thereon shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in such Debt Security.
SECTION 406. Debt Securities Redeemed in Part.
Any Debt Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company, the Security Registrar or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company, the Security Registrar and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Debt Security without service charge, a new Debt Security or Debt
Securities of the same series, in any authorized denomination as requested by
such Holder, in an aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered, except
that if a Global Security is so surrendered, the Company shall execute, and the
Trustee shall authenticate and deliver to the Depositary for such Global
Security, without service charge, a new Global Security or Securities in a
denomination equal to and in exchange for the unredeemed portion of the
principal of the Global Security so surrendered.
SECTION 407. Applicability of Sinking Fund.
Redemption of Debt Securities permitted or required pursuant to a sinking
fund for the retirement of Debt Securities of a series shall be made in
accordance with the applicable provisions of this Article, except as otherwise
specified in the manner contemplated by Section 301 for Debt Securities of such
series.
The minimum amount of any sinking fund payment provided for by the terms of
Debt Securities of any series is herein referred to as a "Mandatory Sinking Fund
Payment", and any payment in excess of such minimum amount provided for by the
terms of Debt Securities of any series is herein referred to as an "Optional
Sinking Fund Payment". The cash amount of any Mandatory Sinking Fund Payment
shall be subject to reduction as provided in Section 408.
29
SECTION 408. Mandatory and Optional Sinking Funds.
In lieu of making all or any part of any Mandatory Sinking Fund Payment
with respect to any series of Debt Securities in cash, the Company may at its
option (a) deliver to the Trustee Debt Securities of such series therefore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Company or receive credit for Debt Securities of
such series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Company and delivered to the Trustee for
cancellation pursuant to Section 309, (b) receive credit for Optional Sinking
Fund Payments (not previously so credited) made pursuant to this Section 408,
or (c) receive credit for Debt Securities of such series (not previously so
credited) redeemed by the Company through any optional redemption provision
contained in the terms of such series. Debt Securities so delivered or credited
shall be received or credited by the Trustee at the sinking fund redemption
price specified in such Debt Securities.
On or before the 45th day next preceding each sinking fund payment date for
any series, the Company will deliver to the Trustee an Officers' Certificate (a)
specifying the portion of the Mandatory Sinking Fund Payment to be satisfied by
credit of Debt Securities of such series, (b) stating that none of the Debt
Securities of such series has theretofore been so credited, (c) stating whether
or not the Company 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 Company intends to pay on or before
the next succeeding sinking fund payment date and (d) specifying such sinking
fund payment date. Any Debt Securities of such series to be credited and
required to be delivered to the Trustee in order for the Company 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 309 to the
Trustee with such written statement (or reasonably promptly thereafter if
acceptable to the Trustee). Such written statement shall be irrevocable and upon
its receipt by the Trustee the Company 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 Company, on or
before any such 45th day, to deliver such written statement and Debt Securities
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 Company (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 Debt Securities of such series in respect thereof
and (ii) that the Company will make no Optional Sinking Fund Payment with
respect to such series as provided in this Section 408.
30
SECTION 409. Application of Sinking Fund Payments.
If a Mandatory Sinking Fund Payment or Optional Sinking Fund Payment made
in cash with respect to a particular series of Debt Securities, plus any unused
balance of any preceding sinking fund payments made in cash with respect to such
series, shall exceed $50,000 (or a lesser sum if the Company shall so request),
such funds shall be applied by the Trustee on the sinking fund payment date
provided for in the terms of a particular series of Debt Securities next
following the date of such payment, unless the date of such payment shall be a
sinking fund payment date, in which case such payment shall be applied on such
sinking fund payment date, to a redemption of Debt Securities of such series at
the Redemption Price specified therein. Not less than 45 days (unless a shorter
period shall be satisfactory to the Trustee) before each such sinking fund
payment date, the Trustee shall select, in the manner provided in Section 403,
for redemption on such sinking fund payment date, a sufficient principal amount
of Debt Securities of such series to absorb said funds, as nearly as may be, and
shall, at the expense and in the name of the Company, thereupon cause notice of
the redemption of such Debt Securities to be given in substantially the manner
provided in Section 402 for the redemption of Debt Securities in part at the
option of the Company, except that the notice of redemption shall also state
that such Debt Securities are being redeemed for the sinking fund. Any sinking
fund moneys not so applied by the Trustee to the redemption of Debt Securities
of such series shall be added to the next sinking fund payment received in funds
by the Trustee and, together with such payment, shall be applied in accordance
with the provisions of this Section 409. Any and all sinking fund moneys held by
the Trustee on the last sinking fund payment date with respect to Debt
Securities of such series, and not held for the payment or redemption of
particular Debt Securities of such series, shall be applied by the Trustee to
the payment of the principal of the Debt Securities of such series at Maturity.
On or prior to each sinking fund payment date, the Company shall pay to the
Trustee a sum equal to all interest accrued to the date fixed for redemption on
Debt Securities to be redeemed on such sinking fund payment date pursuant to
this Section 409.
The Trustee shall not redeem any Debt Securities of a series with sinking
fund moneys or mail any notice of redemption of Debt Securities of such series
by operation of the sinking fund during the continuance of any Event of Default
(other than an Event of Default occurring as a consequence of this paragraph) of
which the Trustee has actual knowledge, except that if the notice of redemption
of any Debt Securities of such series shall theretofore have been mailed in
accordance with the provisions hereof, the Trustee shall redeem such Debt
Securities if cash sufficient for the purpose shall be deposited with the
Trustee in accordance with the terms of this Article Four. Except as aforesaid,
any moneys in the sinking fund at the time any such Event of Default shall occur
and
31
any moneys thereafter paid into the sinking fund shall, during the continuation
of such Event of Default, be held as security for the payment of all the Debt
Securities of such series; provided, however, that in case such Event of Default
shall have been cured or waived as provided herein, such moneys shall thereafter
be applied on the next sinking fund payment date on which such moneys are
required to be applied pursuant to the provisions of this Section 409.
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
SECTION 501. To Pay Principal, Premium, If Any, and Interest.
The Company covenants and agrees for the benefit of each series of Debt
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Debt Securities of such series in accordance with
the terms of the Debt Securities of such series and this Indenture.
The Company shall pay interest on overdue principal of a Debt Security of
any series at the rate of interest prescribed therefor in such Debt Security
and, to the extent lawful, it shall pay interest on overdue instalments of
interest at the same rate.
SECTION 502. To Maintain Offices or Agencies.
As long as any of the Debt Securities shall remain outstanding, the Company
will maintain or will cause to be maintained, in each Place of Payment for any
series of Debt Securities, one or more offices or agencies where Debt Securities
of such series may be presented or surrendered for payment, exchange and
registration of transfer as in this Indenture provided and where notices and
demands to or upon the Company in respect of this Indenture and of the Debt
Securities of such series may be served. The Company will from time to time give
written notice to the Trustee of the location of any such office or agency and
of any change in the location thereof. In case the Company shall fail to
maintain any such office or agency or to give such notice of its location or of
any change in the location thereof, presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee. The
Company hereby initially appoints the Corporate Trust Office of the Trustee as
its office or agency for all the above purposes.
SECTION 503. Money for Debt Security Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Debt Securities, then, on or before each date on which the
principal of (and premium, if any) or interest on any of the Debt Securities of
that series shall become payable, by their terms or as a result of the calling
thereof for redemption, the Company will set apart and segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
such principal (and premium, if any) or interest which shall have become so
payable until such sums shall be paid to such Persons or otherwise disposed of
as herein provided, and will notify the Trustee of its action or failure so to
act and of any failure by any other obligor upon the Debt Securities of that
series to make any such payment.
If the Company shall appoint and at the time have a Paying
Agent for the payment of the principal of (and premium, if any) or interest on
any series of Debt Securities, then, on or before the date on which the
principal of (and premium, if any) or interest on any of the Debt Securities of
that
32
series shall become payable as aforesaid, the Company will pay to such Paying
Agent a sum sufficient to pay such principal (and premium, if any) or interest,
to be held in trust for the benefit of the Persons entitled thereto, and (unless
such Paying Agent is the Trustee) the Company will notify the Trustee of its
action or failure so to act.
If such Paying Agent shall be other than the Trustee, the Company will
cause such Paying Agent to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section 503, (1) that such Paying Agent shall hold all sums held by it
for the payment of the principal of (and premium, if any) or interest on the
Debt Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided; (2) that such Paying Agent shall give the Trustee notice of
any default by the Company or any other obligor upon the Debt Securities of that
series in the making of any payment of the principal of (and premium, if any) or
interest on the Debt Securities of that series when the same shall have become
due and payable; and (3) that such Paying Agent shall, at any time during the
continuance of any such default, upon the written request of the Trustee, pay to
the Trustee all sums so held in trust by it.
Anything in this Section 503 to the contrary notwithstanding, the Company
may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other reason, pay or cause to be paid to the Trustee
all sums held in trust by it or by any Paying Agent (other than the Trustee) as
required by this Section 503, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Debt Securities of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has
33
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Debt Security shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease.
SECTION 504. Restrictions on Liens Upon Voting Stock of Significant
Subsidiaries.
(a) The Company will not, and will not permit any Subsidiary to, incur,
issue, assume or guarantee any Indebtedness if such Indebtedness is secured by a
pledge of, lien on, or security interest in any shares of Voting Stock of any
Significant Subsidiary, whether such Voting Stock is now owned or shall
hereafter be acquired, without effectively providing that the Debt Securities
(together with, if the Company shall so determine, any other indebtedness or
obligations of the Company or any Subsidiary ranking equally with such Debt
Securities and then existing or thereafter created) shall be secured equally and
ratably with such Indebtedness. For the purposes of the foregoing, pledging,
placing a lien on or creating a security interest in any shares of Voting Stock
of a Significant Subsidiary in order to secure then outstanding Indebtedness of
the Company or any Subsidiary shall be deemed to be the incurrence, issuance,
assumption or guarantee (as the case may be) of such Indebtedness, but the
foregoing shall not apply to Indebtedness secured by a pledge of, lien on or
security interest in any shares of Voting Stock of any corporation at the time
it becomes a Significant Subsidiary, including extensions, renewals and
replacements of such Indebtedness without increase in the amount thereof.
(b) For the purposes of Subsection (a) of this Section 504, the term
"Voting Stock" shall mean capital stock the holders of which have general voting
power under ordinary circumstances to elect at least a majority of the board of
directors of a corporation; provided that, for the purposes hereof, capital
stock which carries only the right to vote conditioned on the occurrence of an
event shall not be considered voting stock whether or not such event shall have
occurred.
(c) For the purposes of Subsection (a) of this Section 504, the term
"Significant Subsidiary" shall mean a Subsidiary, including its Subsidiaries,
which meets any of the following conditions:
(1) The Company's and its other Subsidiaries' investments in and
advances to the Subsidiary exceed 10 percent of the total assets of the
Company and its Subsidiaries consolidated as of the end of the most
recently completed fiscal year;
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(2) The Company's and its other Subsidiaries' proportionate share of
the total assets (after inter-company eliminations) of the Subsidiary
exceeds 10 percent of the total assets of the Company and its Subsidiaries
consolidated as of the end of the most recently completed fiscal year; or
(3) The Company's and its other Subsidiaries' equity in the income
from continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principles of the Subsidiary
exceeds 10 percent of such income of the Company and its Subsidiaries
consolidated for the most recently completed fiscal year.
(d) For the purposes of making the prescribed income test in clause (3) of
Subsection (c) of this Section 504, the following shall be applicable:
(1) When a loss has been incurred by either the Company and its
Subsidiaries consolidated or the tested Subsidiary, but not both, the
equity in the income or loss of the tested Subsidiary shall be excluded
from the income of the Company and its Subsidiaries consolidated for
purposes of the computation; and
(2) If income of the Company and its Subsidiaries consolidated for the
most recent fiscal year is at least 10 percent lower than the average of
the income for the last five fiscal years, such average income shall be
substituted for purposes of the computation. Any loss years shall be
omitted for purposes of computing average income.
SECTION 505. Restrictions on Consolidation, Merger, Sale, Etc.
The Company shall not consolidate with any other corporation or accept a
merger of any other corporation into the Company or permit the Company to be
merged into any other corporation, or sell other than for cash or lease all or
substantially all its assets to another corporation, or purchase all or
substantially all the assets of another corporation, unless (a) either the
Company shall be the continuing corporation, or the successor, transferee or
lessee corporation (if other than the Company) shall expressly assume, by
indenture supplemental hereto satisfactory to the Trustee, executed and
delivered by such corporation prior to or simultaneously with such
consolidation, merger, sale or lease, the due and punctual payment of the
principal of (and premium, if any) and interest on all the Debt Securities,
according to their tenor, and the due and punctual performance and observance
of all the covenants and conditions of this Indenture to be performed or
observed by the Company, and (b) immediately after
35
giving effect to such consolidation, merger, sale, lease or purchase the Company
or the successor, transferee or lessee corporation (if any other than the
Company) would not be in default in the performance of any covenant or condition
of this Indenture. A purchase by a Subsidiary of all or substantially all of the
assets of another corporation shall not be deemed to be a purchase of such
assets by the Company.
SECTION 506. Annual Statement Concerning Compliance With Covenants.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year, a written statement signed by the Chairman of the Board of
Directors, the President, any Vice President or the Treasurer of the Company,
stating that:
(a) a review of the activities of the Company during such year with regard
to its compliance with this Indenture has been made under such officer's
supervision; and
(b) to the best of such officer's knowledge, based on such review, the
Company has fulfilled all its obligations under this Indenture throughout such
year, or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof.
SECTION 507. Compliance With Covenants and Conditions May Be Waived By Holders
of Debt Securities.
Anything in this Indenture to the contrary notwithstanding, the Company or
any Subsidiary may fail or omit in any particular instance to comply with a
covenant or condition set forth in Section 504 or Section 505 with respect to
any series of Debt Securities if the Company shall have obtained and filed with
the Trustee, prior to the time for such compliance, evidence (as provided in
Article Seven) of the consent of the Holders of at least a majority in aggregate
principal amount of the Debt Securities of such series at the time Outstanding,
either waiving such compliance in such instance or generally waiving compliance
with such covenant or condition, but no such waiver shall extend to or affect
any obligation not waived by the terms of such waiver or impair any right
consequent thereon.
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ARTICLE SIX
REMEDIES
SECTION 601. Events of Default.
Except where otherwise indicated by the context or where the term is
otherwise defined for a specific purpose, the term "Event of Default" as used in
this Indenture with respect to Debt Securities of any series shall mean one of
the following described events unless it is either inapplicable to a particular
series or it is specifically deleted or modified in the supplemental indenture,
if any, under which such series of Debt Securities is issued:
(a) the failure of the Company to pay any instalment of interest on any
Debt Security of such series, when and as the same shall become due and payable,
which failure shall have continued unremedied for a period of 30 days;
(b) the failure of the Company to pay the principal or premium, if any, on
any Debt Security of such series, when and as the same shall become payable,
whether at maturity as therein expressed, by call for redemption (otherwise than
pursuant to a sinking fund), by declaration as authorized by this Indenture or
otherwise;
(c) the failure of the Company to pay a sinking fund instalment, if any,
when and as the same shall become due and payable by the terms of a Debt
Security of such series, which failure shall have continued unremedied for a
period of 30 days;
(d) the failure of the Company, subject to the provisions of Section 507,
to observe and perform any other of the covenants or agreements on the part of
the Company contained in this Indenture (including any indenture supplemental
hereto), other than a covenant or agreement which has been expressly included in
this Indenture solely for the benefit of a series of Debt Securities other than
that series, which failure shall not have been remedied to the satisfaction of
the Trustee, or without provision deemed by the Trustee to be adequate for the
remedying thereof having been made, for a period of 90 days after written notice
shall have been given to the Company by the Trustee or shall have been given to
the Company and the Trustee by Holders of 25% or more in aggregate principal
amount of the Debt Securities of such series then Outstanding, specifying such
failure and requiring the Company to remedy the same;
(e) the entry by a court having jurisdiction in the premises of a decree or
order for relief in respect of the Company in an involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee
37
or sequestrator (or similar official) of the Company or for substantially all of
its property, or ordering the winding-up or liquidation of the Company's
affairs, and such decree or order shall remain unstayed and in effect for a
period of 90 consecutive days;
(f) the commencement by the Company of a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or other similar law now or hereafter in
effect, or the consent by the Company to the entry of an order for relief in an
involuntary case under any such law, or the consent by the Company to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian or sequestrator (or similar official) of the Company or for
substantially all of its property, or the making by it of an assignment for the
benefit of creditors; or
(g) the occurrence of any other event of default with respect to the Debt
Securities of such series as provided in a supplemental indenture applicable to
such series of Debt Securities or a Board Resolution pursuant to which such
series of Debt Securities is established.
SECTION 602. Acceleration of Maturity on Default; Waiver.
If any one or more Events of Default shall happen with respect to Debt
Securities of any series at the time Outstanding, then, and in each and every
such case, during the continuance of any such Event of Default, the Trustee or
the Holders of 25% or more in aggregate principal amount of the Debt Securities
of such series then Outstanding may, and upon the written request of the
Holders of a majority in aggregate principal amount of such Debt Securities
then Outstanding the Trustee shall, declare the principal amount (or, if the
Debt Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that
series) of and all accrued but unpaid interest (if any) on all the Debt
Securities of such series then Outstanding, if not then due and payable, to be
due and payable, and upon any such declaration the same shall become and be
immediately due and payable, anything contained in this Indenture or in the
Debt Securities of such series to the contrary notwithstanding; provided that
no Event of Default with respect to Debt Securities of a series, except with
respect to an Event of Default under Subsections (e) and (f) of Section 601,
shall constitute an Event of Default with respect to Debt Securities of any
other series. The foregoing provision, however, is subject to the condition
that, if at any time after the principal amount (or specified amount) of and
all accrued but unpaid interest (if any) on all the Debt Securities of such
series shall have been so declared to be due and payable, all arrears of
interest, if any, upon all the Debt Securities of such series (with interest,
to the extent that interest thereon shall be legally enforceable, on any
overdue instalment of interest at the rate borne by the Debt Securities of such
series) and all amounts
38
owed to the Trustee and any predecessor trustee hereunder under Section 1001(a)
and all other sums payable under this Indenture (except the principal of the
Debt Securities of such series which would not be due and payable were it not
for such declaration), shall be paid by the Company, and every other default and
Event of Default under this Indenture shall have been cured to the reasonable
satisfaction of the Holders of a majority in aggregate principal amount of the
Debt Securities of such series then Outstanding, or provision deemed by such
Holders to be adequate therefor shall have been made, then and in every such
case the Holders of a majority in aggregate principal amount of the Debt
Securities of such series then Outstanding may, on behalf of the Holders of all
the Debt Securities of such series, waive the Event of Default by reason of
which the principal of the Debt Securities of such series shall have been so
declared to be due and payable and may rescind and annul such declaration and
its consequences; but no such waiver, recission or annulment shall extend to or
affect any subsequent default or Event of Default or impair any right consequent
thereon. Any declaration by the Trustee pursuant to this Section 602 shall be by
written notice to the Company, and any declaration or waiver by the Holders of
Debt Securities of any series pursuant to this Section 602 shall be by written
notice to the Company and the Trustee.
SECTION 603. Collection of Amounts Due and Suits for Enforcement by Trustee.
If the Company shall fail for a period of 30 days to pay any instalment of
interest on the Debt Securities of any series, or shall fail to pay the
principal of and premium, if any, on any of the Debt Securities of such series
when and as the same shall become due and payable, whether at maturity, or by
call for redemption (otherwise than pursuant to a sinking fund), by declaration
as authorized by this Indenture or otherwise, or shall fail for a period of 30
days to make any sinking fund payment as to a series of Debt Securities, then,
upon demand of the Trustee, the Company will pay to the Trustee for the benefit
of the Holders of the Debt Securities of such series then Outstanding the whole
amount which then shall have become due and payable on all the Debt Securities
of such series, with interest on the overdue principal and premium, if any, and
(so far as the same may be legally enforceable) on the overdue instalments of
interest at the rate borne by the Debt Securities of such series, and all
amounts owed to the Trustee and any predecessor trustee hereunder under Section
1001(a).
Until such demand is made by the Trustee, the Company may pay the principal
of and interest on the Debt Securities of any series to the Holders, whether or
not the principal of and interest on the Debt Securities of such series be
overdue.
In case the Company fails 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 proceeding at law or in equity
39
for the collection of the sums so due and unpaid, and may prosecute any such
action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon the Debt
Securities of such series, and collect the moneys adjudged or decreed to be
payable out of the property of the Company or any other obligor upon the Debt
Securities of such series, wherever situated, in the manner provided by law.
Every recovery of judgment in any such action or other proceeding, subject to
the payment to the Trustee of all amounts owed to the Trustee and any
predecessor trustee hereunder under Section 1001(a), shall be for the ratable
benefit of the Holders of such series of Debt Securities which shall be the
subject of such action or proceeding. All rights of action upon or under any of
the Debt Securities or this Indenture may be enforced by the Trustee with out
the possession of any of the Debt Securities and without the production of any
thereof at any trial or any proceeding relative thereto.
SECTION 604. Trustee Appointed Attorney-in-Fact for Holders to File Claims.
The Trustee is hereby appointed, and each and every Holder, by receiving
and holding Debt Securities, shall be conclusively deemed to have appointed the
Trustee, the true and lawful attorney-in-fact of such Holder, with authority to
make or file (whether or not the Company shall be in default in respect of the
payment of the principal of (and premium, if any) or interest on any of the Debt
Securities), in its own name and as trustee of an express trust or otherwise as
it shall deem advisable, in any receivership, insolvency, liquidation,
bankruptcy, reorganization or other judicial proceeding relative to the Company
or any other obligor upon the Debt Securities or to their respective creditors
or property, any and all claims, proofs of claim, proofs of debt, petitions,
consents, other papers and documents and amendments of any thereof, as may be
necessary or advisable in order to have the claims of the Trustee and any
predecessor trustee hereunder and of the Holders allowed in any such proceeding
and to collect and receive any moneys or other property payable or deliverable
on any such claim, and to execute and deliver any and all other papers and
documents and to do and perform any and all other acts and things, as it may
deem necessary or advisable in order to enforce in any such proceeding any of
the claims of the Trustee and any predecessor trustee hereunder and any of the
Holders, and any receiver, assignee, trustee, custodian or debtor in any such
proceeding is hereby authorized, and each and every holder, by receiving and
holding Debt Securities, shall be conclusively deemed to have authorized any
such receiver, assignee, trustee, custodian or debtor to make any such payment
or delivery only to or on the order of the Trustee, and to pay to the Trustee
any amount due it and any predecessor trustee hereunder under Section 1001(a);
provided, however, that nothing herein contained shall be deemed to authorize or
empower the Trustee to consent to or accept or adopt, on behalf of any Holder,
any plan of reorganization or readjustment of the Company affecting the Debt
Securities or the rights of any
40
Holder thereof, or to authorize or empower the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
SECTION 605. Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee with respect to a series of Debt
Securities under this Article Six shall be applied in the following order, at
the date or dates fixed by the Trustee and, in the case of the distribution of
such moneys on account of principal (or premium, if any) or interest, upon
presentation of the Debt Securities and the notation thereon of the payment, if
only partially paid, and upon surrender thereof, if fully paid:
First: To the payment of all amounts due to the Trustee and any
predecessor trustee hereunder under Section 1001(a);
Second: In case the principal of the Outstanding Debt Securities of
such series shall not have become due and be unpaid, to the payment of
interest on the Debt Securities of such series, in the order of the
Maturity of the instalments of such interest, with interest (to the extent
that such interest is legally enforceable and has been collected by the
Trustee) upon the overdue instalments of interest at the rate borne by such
Debt Securities, such payments to be made ratably to the Persons entitled
thereto;
Third: In case the principal of the Outstanding Debt Securities of
such series shall have become due and payable, by declaration or otherwise,
to the payment of the whole amount then owing and unpaid upon the Debt
Securities of such series for principal (and premium, if any) and interest,
with interest on the overdue principal and premium, if any, and (to the
extent that such interest is legally enforceable and has been collected by
the Trustee) upon overdue instalments of interest at the rate borne by the
Debt Securities of such series, and in case such moneys shall be
insufficient to pay in full the whole amounts so due and unpaid upon the
Debt Securities of such series, then to the payment of such principal (and
premium, if any) and interest without preference or priority of principal
and premium, if any, over interest, or of interest over principal and
premium, if any, or of any instalment of interest over any other instalment
of interest, or of any Debt Security of such series over any other Debt
Security of such series, ratably according to the aggregate amounts of such
principal (and premium, if any) and accrued and unpaid interest. The
Holders of each series of Debt Securities denominated in ECU, any other
composite currency or a Foreign Currency shall be entitled to receive a
ratable portion of the amount determined by the Trustee by converting the
principal amount Outstanding of such series of Debt Securities and matured
but unpaid interest on such series of Debt
41
Securities in the currency in which such series of Debt Securities is
denominated into Dollars at the applicable Exchange Rate as of the date of
declaration of acceleration of the Maturity of the Debt Securities (or, if
there is no such Exchange Rate as of such date for the reasons specified in
Section 311(d)(i), such Exchange Rate on the date specified in such
Section).
Any surplus then remaining shall be paid to the Company or to such other
Persons as shall be entitled to receive it.
SECTION 606. Holders May Direct Proceedings and Waive Defaults.
The Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of any series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
hereunder, or of exercising any trust or power hereby conferred upon the Trustee
with respect to the Debt Securities of such series; provided, however, that,
subject to the provisions of Section 1001 and 1002, the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised by
counsel, determines that the action so directed may not lawfully be taken or
would be unduly prejudicial to Holders not joining in such direction or would
involve the Trustee in personal liability.
Prior to any declaration accelerating the Maturity of the Debt Securities
of any series, the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of such series may on behalf of the Holders of all
of the Debt Securities of such series waive any past default or Event of Default
hereunder and its consequences, except a default in the payment of the principal
of (and premium, if any) or interest on any Debt Security of such series. Upon
any such waiver the Company, the Trustee and the Holders of the Debt Securities
of such series shall be restored to their former positions and rights hereunder,
respectively, but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon. Whenever any default
or Event of Default hereunder shall have been waived as permitted by this
Section 606, said default or Event of Default shall for all purposes of the Debt
Securities of such series and this Indenture be deemed to have been cured and to
be not continuing.
SECTION 607. Limitations on Right of Holders to Institute Proceedings.
No Holder of any Debt Security of any series shall have any right to
institute an action, suit or proceeding at law or in equity with respect to this
Indenture, or for the execution of any trust hereunder or for the appointment of
a receiver or for any other remedy hereunder, in each case with respect to an
Event of Default with respect to such series of Debt Securities, unless (1) such
Holder
42
previously shall have given to the Trustee written notice of the occurrence of
one or more Events of Default with respect to such series of Debt Securities;
(2) the Holders of 25% in aggregate principal amount of the Outstanding Debt
Securities of such series shall have requested the Trustee in writing to take
action in respect of the matter complained of; and (3) unless such Holder or
Holders have offered to the Trustee security and indemnity satisfactory to it
against the costs, expenses and liabilities to be incurred therein or thereby
and the Trustee, for 60 days after receipt of such notification, request and
offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding, and such notification, request and offer of
indemnity are hereby declared in every such case to be conditions precedent to
any such action, suit or proceeding by any Holder of any Debt Security of such
series, it being understood and intended that no one or more of such Holders
shall have any right in any manner whatsoever by his or their action to enforce
any right hereunder, except in the manner herein provided, and that every
action, suit or proceeding at law or in equity shall be instituted, had and
maintained in the manner herein provided and for the equal benefit of all
Holders of the Outstanding Debt Securities of such series; provided, however,
that nothing contained in this Indenture or in the Debt Securities of such
series shall affect or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of (and premium, if any) and (subject to
Section 307) interest on the Debt Securities of such series to the respective
Holders of such Debt Securities at the Stated Maturity or Maturities expressed
in such Debt Securities, or affect or impair the right, which is also absolute
and unconditional, of such Holders to institute suit to enforce any such
payment.
SECTION 608. Assessment of Costs and Attorneys' Fees in Legal Proceedings.
All parties to this Indenture agree, and each Holder of any Debt Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any action, suit or proceeding for the enforcement of
any right or remedy under this Indenture, or in any action, suit or proceeding
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such action, suit or proceeding of an undertaking to
pay the costs of such action, suit or proceeding, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such action, suit or proceeding, having due regard
to the merits and good faith of the claims or defenses made by such party
litigant; provided, however, that the provisions of this Section 608 shall not
apply to any action, suit or proceeding instituted by the Trustee, to any
action, suit or proceeding instituted by any one or more Holders holding in the
aggregate more than 10% in principal amount of the Outstanding Debt Securities
of any series, or to any action, suit or proceeding instituted by any Holder for
the enforcement of the payment of the principal of (or premium, if any) or
interest on any of the Debt Securities of such
43
series, on or after the respective Stated Maturity or Maturities expressed in
such Debt Securities (or, in the case of redemption, on or after the Redemption
Date).
SECTION 609. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or rights or remedy
or remedies, and each and every right and remedy shall be cumulative and shall
be in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or by statute.
No delay or omission of the Trustee or of any Holder to exercise any right
or remedy accruing upon any default or Event of Default shall impair any such
right or remedy or shall be construed to be a waiver of any such default or
Event of Default or an acquiescence therein, and every right and remedy given by
this Article Six to the Trustee and to the Holders, respectively, may be
exercised from time to time and as often as may be deemed expedient by the
Trustee or by the Holders, as the case may be.
In case the Trustee or any Holder shall have proceeded to enforce any right
or remedy under this Indenture and the proceedings for the enforcement thereof
shall have been discontinued or abandoned because of waiver or for any other
reason or shall have been adjudicated adversely to the Trustee or to such
Holder, then and in every such case the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions and
rights hereunder, and thereafter all rights, remedies and powers of the Trustee
and the Holders shall continue as though no such proceedings had been taken,
except as to any matters so waived or adjudicated.
ARTICLE SEVEN
ACTIONS BY HOLDERS
SECTION 701. Actions By Holders.
Whenever in this Indenture it is provided that the Holders of a specified
percentage or a majority in aggregate principal amount of Outstanding Debt
Securities of any series may take any action (including the making of any demand
or request, the giving of any notice, consent or waiver or the taking of any
other action), such action may be taken by (a) a meeting of the Holders in
accordance with Article Eight or (b) by any instrument or instruments of a
substantially similar tenor executed and delivered by the requisite number of
Holders in accordance with the provisions of this Article Seven.
44
SECTION 702. Instruments.
In order to be effective to take any action under this Article Seven, an
instrument shall (a) be in writing, (b) express the action to be taken, (c) be
executed by or on behalf of a Holder who is such (i) if such instruments have
been requested by the Company or the Trustee pursuant to a written notice mailed
to all Holders of the affected series, on the date such notice is mailed or (ii)
in any other case, on the date the first instrument expressing such action is
delivered to the Trustee, and (d) indicate the principal amount of Debt
Securities to which the instrument relates. Each such instrument must be duly
acknowledged or witnessed. If such instrument is executed by a Person other than
the Holder, then such instrument shall include, or be accompanied by proof
acceptable to the Trustee of, such Person's authority to execute the instrument.
The ownership of Debt Securities shall be proved by the Security Register.
The Trustee may accept such other proof or may require such additional proof of
any other matter referred to in this Section 702 as it shall reasonably deem
appropriate or necessary.
SECTION 703. Determining Principal Amount of Outstanding Debt Securities.
In determining whether the Holders of the requisite principal amount of
Outstanding Debt Securities have given any authorization, demand, direction,
request, notice, waiver or consent or taken any other action under this
Indenture, Debt Securities owned by the Company or any other obligor on the Debt
Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
authorization, demand, direction, request, notice, waiver, consent or action,
only Debt Securities which the Trustee knows are so owned shall be disregarded.
Debt Securities so owned which have been pledged in good faith may be regarded
as Outstanding for the purposes of this Section 703 if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right to vote such
Debt Securities and that the pledgee is not the Company or any other obligor
upon the Debt Securities or any Affiliate of the Company or such other obligor.
In case of a dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection to the Trustee.
For purposes of determining the principal amount of Outstanding Debt
Securities of any series the Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other action under this Indenture, (i) each Original
Issue Discount Security shall be deemed to have the principal amount determined
by the Trustee that could be declared to be due and payable pursuant to the
terms of such Original Issue Discount Security as of a date fixed by the Trustee
and (ii)
45
each Debt Security denominated in a Foreign Currency or composite currency shall
be deemed to have the principal amount determined by the Trustee by translating
the principal amount of such Debt Security in the currency in which such Debt
Security is denominated into Dollars at the applicable Exchange Rate as of a
date fixed by the Trustee.
Upon receipt of instruments representing the Holders of a sufficient amount
of Debt Securities to take the action stated thereon, the Trustee shall promptly
tabulate such instruments and deliver a report thereof to the Company.
SECTION 704. Revocation by Holders of Consents to Action.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 701, of the taking of any action by the Holders of the
requisite proportion of Outstanding Debt Securities of any series, any Holder of
a Debt Security that is shown by the evidence to be included among the Debt
Securities whose Holders consented to such action may, by filing written notice
with the Trustee and upon proof of holding as provided in Section 702, revoke
such action so far as concerns such Debt Security. Except as aforesaid, any such
action taken by the Holder of any Debt Security shall be conclusive and binding
upon such Holder and upon all future Holders of the same Debt Security and the
Holder of every Debt Security issued upon the transfer thereof or in exchange
therefor or in lieu thereof, irrespective of whether or not any notation in
regard thereto is made upon such Debt Security or any Debt Security issued in
exchange or substitution therefor.
ARTICLE EIGHT
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 801. Purposes of Meetings.
A meeting of Holders of any series or of all series may be
called at any time and from time to time pursuant to the provisions of this
Article Eight for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to
be taken by Holders pursuant to any of the provisions of Article Six;
(b) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article Ten;
46
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 1302; or
(d) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Debt
Securities of any one or more or all series, as the case may be, under any
other provision of this Indenture or under applicable law.
SECTION 802. Call of Meetings by Trustee.
The Trustee may at any time, and shall upon receipt of a Board Resolution
or written requests by the Holders of at least 10% in aggregate principal amount
of the Outstanding Debt Securities of a series that may be affected by the
action proposed to be taken (such Board Resolution or written requests setting
forth in reasonable detail the action proposed to be taken at the meeting), call
a meeting of the Holders of the Debt Securities of all series that may be
affected by the action proposed to be taken. Such meeting shall be held at such
time and at such place as the Trustee shall determine. Notice of every meeting
of the Holders of Debt Securities of a series, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be mailed to such Holders at their addresses as they shall
appear on the Security Register as of a record date determined by the Trustee in
its reasonable discretion. Such notice shall be mailed not less than 20 nor more
than 60 days prior to the date fixed for the meeting.
SECTION 803. Call of Meetings by Company or Holders.
If a meeting of Holders has been duly requested by the Company or the
Holders pursuant to Section 802, and if the Trustee has not mailed the notice of
such meeting within 20 days after receipt of such request, then the Company or
such Holders may determine the time and the place for such meeting and may call
such meeting to take any action authorized in Section 801, by mailing notice
thereof as provided in Section 802.
SECTION 804. Qualifications For Voting.
To be entitled to vote at any meeting of Holders, a Person shall (a) be a
Holder of one or more Debt Securities of a series affected by the action
proposed to be taken at such meeting as of the date of the mailing of notice of
such meeting or (b) be a Person appointed by an instrument in writing as proxy
by a Holder of one or more of such Debt Securities who was a Holder of such
Debt Securities as of the date of the mailing of notice of such meeting. The
only Persons who shall be entitled to be present or to speak at any meeting of
Holders shall be the Persons entitled to vote at such meeting and their counsel
and any
47
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 805. Regulation of Meetings.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders, in regard to proof of the holding of Debt Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 803, in which case the Company or
the Holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 703, at any meeting of Holders of the
Debt Securities of a series, each such Holder or such Holder's proxy shall be
entitled to one vote for each $1,000 principal amount (or the equivalent in ECU,
any other composite currency or a Foreign Currency) of Outstanding Debt
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Debt Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Debt Securities of such series held by him or instruments in
writing as aforesaid duly designating him as the Person to vote on behalf of
other Holders of the Debt Securities of such series. At any meeting of Holders
duly called pursuant to the provisions of Section 802 or 803, the presence of
Persons holding or representing Debt Securities in an aggregate principal amount
sufficient to take action upon the business for the transaction of which such
meeting was called shall be necessary to constitute a quorum, and any such
meeting may be adjourned from time to time by a majority of those present,
whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
SECTION 806. Voting.
The vote upon any resolution submitted to any meeting of the Holders of the
Debt Securities of a series shall be written ballots on which shall be
subscribed the signatures of such Holders or their representatives by proxy and
the principal amounts of such Debt Securities held or represented by them. The
48
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Holders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of
the inspectors of votes by ballot taken thereat and affidavits by one or more
Persons having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was mailed as provided in Section 802. The
record shall show the principal amounts of the Debt Securities voting in favor
of or against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 807. No Delay of Rights by Meeting.
Nothing contained in this Article Eight shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders of the Debt
Securities of any series or by reason of any right expressly or impliedly
conferred hereunder to make any such call, any hindrance or delay in the
exercise of any right or rights or remedy or remedies conferred upon or reserved
to the Trustee or to such Holders under any of the provisions of this Indenture
or of such Debt Securities.
ARTICLE NINE
REPORTS BY THE COMPANY AND THE TRUSTEE; HOLDERS' LISTS
SECTION 901. Reports by Trustee.
(a) Annual Report to Holders. On or before the first July 15 following
the issuance of any series of Debt Securities and on or before July 15 in
each year thereafter, the Trustee shall transmit to all Holders of such
Debt Securities, as hereinafter provided, a brief report dated as of the
preceding May 15 with respect to:
(1) its eligibility and qualifications under Sections 1005 and
1006 to serve as Trustee hereunder, or in lieu thereof, if to the best
of its knowledge it has continued to be eligible and qualified under
said Sections, a written statement to such effect;
49
(2) the character and amount of any advances made by it, as
Trustee, which remain unpaid on the date as of which such report is
made and for the reimbursement of which it claims or may claim a lien
or charge, prior to that of the Debt Securities of such series, on any
property or funds held or collected by it as Trustee, if such advances
so remaining unpaid aggregate more than 1/2 of 1% of the principal
amount of the Outstanding Debt Securities of such series on the date
as of which such report is made;
(3) the amount, interest rate and maturity date of all other
indebtedness owing to it in its individual capacity, on the date as of
which such report is made, by the Company or any other obligor upon
the Debt Securities of such series, with a brief description of any
property held as collateral security therefor, except an indebtedness
based upon a creditor relationship arising in any manner described in
Section 1009(f)(2), 1009(f)(3), 1009(f)(4) or 1009(f)(6);
(4) the property and funds, if any, physically in its possession
as Trustee on the date as of which such report is made;
(5) any additional issue of Debt Securities which it has not
previously reported; and
(6) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Debt Securities, except
action in respect of a default, notice of which has been or is to be
withheld by the Trustee in accordance with the provisions of Section
1003.
(b) Special Reports to Holders. The Trustee shall transmit to all
Holders of Debt Securities of any series, as hereinafter provided, a brief
report with respect to the character and amount of any advances made by the
Trustee (as such) since the date of the last report transmitted pursuant to
the provisions of Subsection (a) above (or, if no such report has yet been
transmitted, since the date of execution of this Indenture), for the
reimbursement of which it claims or may claim a lien or charge, prior to
that of the Debt Securities of such series, on property or funds held or
collected by it as Trustee, and which it has not previously reported
pursuant to this Subsection (b), except that the Trustee shall not be
required (but may elect) to report such advances if such advances remaining
unpaid at any time aggregate 10% or less of the principal
50
amount of the Outstanding Debt Securities of such series at such time, such
report to be so transmitted within 90 days after such time.
(c) Manner and Extent of Transmitting Reports. Each report pursuant to
the provisions of this Section 901 shall be transmitted by mail to all
Holders of Debt Securities at their addresses as the same shall then appear
on the Security Register.
(d) Copies to be Filed with Commission and Securities Exchanges. The
Trustee shall, at the time of the transmission to the Holders of the Debt
Securities of any series of any report pursuant to the provisions of this
Section 901, file a copy of such report with each securities exchange upon
which any Debt Securities of such series are listed, with the Commission
and also with the Company. The Company agrees to notify the Trustee when,
as and if any Debt Securities become listed on any securities exchange.
The Company will reimburse the Trustee for all expenses incurred in the
preparation and transmission of any report pursuant to the provisions of this
Section 901 and of Section 902.
SECTION 902. Reports by the Company.
(a) Reports and Information to be Filed with Trustee. The Company will
file with the Trustee, within 30 days after the Company shall be required
so to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports which the Company may be
required to file with the Commission pursuant to the provisions of Section
13 or Section 15(d) of the Securities Exchange Act of 1934 (or copies of
such portions of any of the foregoing as the Commission may by rules and
regulations prescribe); or, if the Company is not required to file
information, documents or reports pursuant to the provisions of either of
such Sections, then the Company will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to the provisions of Section 13
of the Securities Exchange Act of 1934, in respect of a security listed and
registered on a national securities exchange, as may be prescribed in such
rules and regulations.
(b) Additional Information to Be Filed with Trustee and Commission.
The Company will file with the Trustee and the Commission, in accordance
with rules and regulations prescribed by the Commission, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants
51
provided for in this Indenture as may be required by such rules and
regulations.
(c) Reports to Holders. The Company will transmit to all Holders,
within 30 days after the filing thereof with the Trustee (unless some other
time shall be fixed by the Commission), in the manner and to the extent
provided in Section 901(c), such summaries of any information, documents
and reports required to be filed by the Company pursuant to the provisions
of Subsections (a) and (b) above as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 903. Holders' Lists.
(a) Names and Addresses of Holders. The Company covenants and agrees
that it will furnish or cause to be furnished to the Trustee with respect
to the Debt Securities of each series for which it acts as Trustee:
(1) at least semiannually, within 10 days after each Regular
Record Date with respect to such Debt Securities, a list in such form
as the Trustee may reasonably require of the names and addresses of
the Holders of such Debt Securities, as of such Record Date; and
(2) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
(b) Trustee to Preserve Information. The Trustee will preserve, in as
current a form as is reasonably practicable, all information as to the
names and addresses of Holders so furnished or caused to be furnished to it
by the Company or received by it in its capacity as Paying Agent or
Security Registrar. The Trustee may (1) destroy any information furnished
to it as provided in Subsection (a) above upon receipt of new similar
information so furnished to it; and (2) destroy any information received by
it as Paying Agent or Security Registrar, but not until 45 days after a
subsequent interest payment shall have been made.
(c) Trustee to Furnish Certain Information to Holders on Request.
Within five Business Days after receipt by the Trustee of a written
application by any three or more Holders (hereinafter referred to as the
"applicants") stating that such applicants desire to communicate with
52
other Holders with respect to their rights under this Indenture or under
the Debt Securities, and accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, and by
reasonable proof that each such applicant has owned a Debt Security for a
period of at least six months preceding the date of such application, the
Trustee shall, at its election, either
(1) afford to such applicants access to all information furnished
to, or received by, and preserved by, the Trustee pursuant to the
provisions of this Section 903; or
(2) inform such applicants as to the approximate number of
Holders according to the most recent information so furnished to, or
received by, and preserved by, the Trustee, and as to the approximate
cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address are contained in the
information so furnished to, or received by, and preserved by, the Trustee,
a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision for the payment, of
the reasonable expenses of such mailing, unless, within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing
would be contrary to the best interests of the Holders or would be in
violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of the objections specified in the written
statement so filed, or if, after the entry of an order sustaining one or
more of such objections, the Commission shall find, after notice and
opportunity for hearing, that all objections so sustained have been met,
and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting
their application.
Each and every Holder of a Debt Security, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company, the
Trustee or any agent of either of them shall be held
53
accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders in accordance with the provisions of
this Subsection (c), regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason
of mailing any material pursuant to a request made under this Subsection
(c).
ARTICLE TEN
CONCERNING THE TRUSTEE
SECTION 1001. Acceptance of Trusts Upon Specified Conditions.
The Trustee accepts the trusts created by this Indenture upon the terms and
conditions hereof, including the following, to all of which the parties hereto
and the Holders from time to time of the Debt Securities agree:
(a) Trustee Entitled to Compensation and Expenses; Indemnification.
The Trustee shall be entitled to such compensation as is agreed upon in
writing for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and the Company agrees to pay such
compensation, and all other reasonable expenses (including the fees of
Trustee's counsel), disbursements and advances incurred or made by the
Trustee hereunder, promptly on demand from time to time as such services
shall be rendered and as such expenses shall be incurred. The Company also
agrees to indemnify each of the Trustee and any predecessor trustee
hereunder for, and to hold it or them harmless against, any loss, liability
or expense incurred without its or their own negligence or bad faith,
arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder and the performance of its or their duties,
as well as the costs and expenses of defending itself or themselves against
any claim or liability in connection with the exercise or performance of
any of its or their powers or duties hereunder. As security for the
performance of the obligations of the Company under this Subsection (a),
the Trustee shall have a lien therefor on any moneys held by the Trustee
hereunder prior to any rights therein of the Holders. Notwithstanding any
provisions of this Indenture to the contrary, the obligations of the
Company to indemnify the Trustee under this Section 1001(a) shall survive
any satisfaction and discharge under Article Eleven.
(b) Trustee May Act by Agents and Attorneys. The Trustee may execute
any of the trusts or powers hereof and perform any duty hereunder either
directly or by its agents and attorneys and shall not be
54
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
(c) Trustee Not Responsible for Recitals of Fact. The Trustee shall
not be responsible in any manner whatsoever for the correctness of the
recitals contained herein or in the Debt Securities (except its
certificates of authentication thereon), all of which are made by the
Company solely; and the Trustee shall not be responsible or accountable in
any manner whatsoever for or with respect to the validity or execution or
sufficiency of this Indenture or of the Debt Securities (except its
certificates of authentication thereon), and the Trustee makes no
representation with respect thereto. The Trustee shall not be accountable
for the use or application by the Company of any Debt Securities, or the
proceeds of any Debt Securities, authenticated and delivered by the Trustee
in conformity with the provisions of this Indenture.
(d) Trustee May Consult With Counsel. The Trustee may consult with
counsel, and, to the extent permitted by Section 1002, any Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken or suffered to be taken by the Trustee hereunder in
good faith and in accordance with such Opinion of Counsel.
(e) Trustee May Rely Upon Certificate as to Adoption of Resolutions;
Requests May Be Evidenced by Officers' Certificate. The Trustee, to the
extent permitted by Section 1002, may rely upon the certificate of the
Secretary or one of the Assistant Secretaries of the Company as to the
adoption of any resolution by the Board of Directors or stockholders of the
Company, and any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by, and whenever in the
administration of this Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, offering or omitting any
action hereunder, the Trustee may rely upon, an Officers' Certificate
(unless other evidence in respect thereof be herein specifically
prescribed).
(f) Trustee May Become Owner or Pledgee of Debt Securities. The
Trustee or any agent of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities and, subject
to Sections 1006 and 1009, may otherwise deal with the Company with the
same rights it would have had if it were not a Trustee or such agent.
(g) Segregation of Funds. Money held by the Trustee in trust hereunder
need not be segregated from other funds except to the extent required by
law. The Trustee shall be under no liability for interest on any
55
money received by it hereunder except as otherwise agreed with the Company.
(h) Action at Request of or with Consent of Holder Binding on Future
Holders. Any action taken by the Trustee pursuant to any provision hereof
at the request or with the consent of any Person who at the time is the
Holder of any Debt Security shall be conclusive and binding in respect of
any such Debt Security upon all future Holders thereof or of any Debt
Security or Securities that may be issued for or in lieu thereof in whole
or in part, whether or not such Debt Security shall have noted thereon the
fact that such request or consent had been made or given.
(i) Trustee May Rely on Instruments Believed by It to Be Genuine.
Subject to the provisions of Section 1002, the Trustee may rely and shall
be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties.
(j) Trustee Need Not Exercise Rights or Powers Unless Indemnified by
Holders. Subject to the provisions of Section 1002, the Trustee shall not
be under any obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any Holders,
pursuant to any provision of this Indenture, unless one or more Holders
shall have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities that may be incurred by it therein or
thereby.
(k) Trustee Not Liable for Action Taken or Omitted in Good Faith.
Subject to the provisions of Section 1002, 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 its discretion or within the rights or powers
conferred upon it by this Indenture.
(l) Trustee Not Bound to Make Investigation. Subject to the provisions
of the first paragraph of Section 1002, 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, bond, debenture or other paper or document.
(m) Trustee Not Deemed to Have Knowledge of Default. Subject to the
provisions of Section 1002, the Trustee shall not be deemed
56
to have knowledge or notice of any default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
the Holders of not less than 25% of the Outstanding Debt Securities of any
series notify the Trustee in writing thereof.
SECTION 1002. Duties of Trustee in Case of Default.
If one or more Events of Default with respect to the Debt Securities of any
series shall have happened, then, during the continuance thereof, the Trustee
shall, with respect to the Debt Securities of such series, exercise such of the
rights and powers vested in it by this Indenture, and shall 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.
None of the provisions of this Indenture shall be construed as relieving
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that, anything contained
in this Indenture to the contrary notwithstanding:
(a) When No Default Subsisting. Unless and until an Event of Default
with respect to the Debt Securities of any series shall have happened,
which at the time is continuing,
(1) the Trustee undertakes to perform such duties and only such
duties with respect to the Debt Securities of that series as are
specifically set out in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee,
whose duties and obligations shall be determined solely by the express
provisions of this Indenture; and
(2) the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, in
the absence of bad faith on the part of the Trustee, upon certificates
and opinions furnished to it pursuant to the express provisions of
this Indenture; but in the case of any such certificates or opinions
which, by the provisions of this Indenture, are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture;
(b) Trustee Not Liable for Error of Judgment Made in Good Faith by
Responsible Officer. The Trustee shall not be liable to any Holder or to
any other Person for error of judgment made in good faith by a Responsible
Officer or Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
57
(c) Trustee Not Liable for Certain Action or Non-Action at Direction
of Holders of Majority of Debt Securities. The Trustee shall not be liable
to any Holder or to any other Person with respect to any action taken or
omitted to be taken by it in good faith, in accordance with the direction
of Holders given as provided in Section 606, relating to the time, method
and place of conducting any proceeding for any remedy available to it or
exercising any trust or power conferred upon it by this Indenture.
None of the provisions of this Indenture shall be construed as requiring
the Trustee to expend or risk its own funds or otherwise to incur any personal
financial liability in the performance of any of its duties hereunder or in the
exercise of any of its right or remedies, if there shall be reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 1003. Notice to Holders of Defaults.
Within 90 days after the occurrence thereof, the Trustee shall give to the
Holders of the Debt Securities of a series, as provided in Section 901(c),
notice of each default with respect to the Debt Securities of such series known
to the Trustee, unless such default shall have been cured before the giving of
such notice (the term "default" for the purposes of this Section 1003 being
hereby defined to be the events specified in Section 601, which are, or after
notice or lapse of time or both would become, Events of Default as defined in
said Section); but, unless such default be the failure to pay the principal of
(or premium, if any) or interest on any of the Debt Securities of such series
when and as the same shall become due and payable, or to make any sinking fund
payment as to Debt Securities of the same series, the Trustee shall be protected
in withholding such notice, if and so long as the board of directors, the
executive committee or a trust committee of directors or Responsible Officers of
the Trustee in good faith determines that the withholding of such notice is in
the interests of the Holders of the Debt Securities of such series.
SECTION 1004. Resignation of Trustee and Notice Thereof.
The Trustee, or any successor to it hereafter appointed, may at any time
resign and be discharged of the trusts hereby created with respect to any one or
more or all series of Debt Securities by giving to the Company notice in writing
and by mailing notice thereof to the Holders of the Debt Securities of such
series at their addresses as the same shall then appear in the Security
Register. Such resignation shall take effect upon the appointment of a successor
Trustee and the acceptance of such appointment by such successor Trustee. Any
Trustee hereunder may be removed with respect to any series of Debt Securities
at any time by the Holders of a majority in aggregate principal amount of the
58
Outstanding Debt Securities of such series, acting pursuant to the provisions of
Article Seven or Article Eight.
Upon its resignation or removal, any Trustee shall be entitled to the
payment of reasonable compensation for the services rendered hereunder by such
Trustee and to the payment of all reasonable expenses incurred hereunder and all
moneys then due to it hereunder. The Trustee's rights to indemnification
provided in Section 1001(a) shall survive its resignation or removal.
SECTION 1005. Qualifications of Trustee.
There shall at all times be a Trustee under this Indenture, and such
Trustee shall at all times be a corporation organized and doing business under
the laws of the United States or of any State, which is authorized under such
laws to exercise corporate trust powers and is subject to supervision or
examination by Federal or State authority and which has a combined capital and
surplus of not less than $10,000,000. For the purposes of this Section 1005, the
combined capital and surplus of any such Trustee shall be deemed to be the
combined capital and surplus as set forth in the most recent report of its
condition published by such Trustee; provided that such reports are published at
least annually, pursuant to law or to the requirements of a Federal or State
supervising or examining authority. If such Trustee or any successor shall at
any time cease to have the qualifications prescribed in this Section 1005, it
shall promptly resign as Trustee hereunder.
SECTION 1006. Disqualification of Trustee by Reason of Conflicting Interest.
(a) Trustee to Resign. If the Trustee has or shall acquire any
conflicting interest, as the term "conflicting interest" is defined in
Subsection (d) below, with respect to the Debt Securities of any series,
the Trustee shall, within 90 days after ascertaining that it has such
conflicting interest, either eliminate such conflicting interest or resign
with respect to the Debt Securities of that series, such resignation to
become effective upon the appointment of a successor Trustee and the
acceptance by such successor Trustee of such appointment. If the Trustee
shall resign, the Company shall take prompt steps to have a successor
appointed in the manner provided in Section 1007.
(b) Notice to Holders of Failure to Resign. In the event that the
Trustee shall fail to comply with the provisions of Subsection (a) above,
the Trustee shall, within ten days after the expiration of such 90 day
period, transmit notice of its failure in that regard to the Holders as
provided in Section 901(c).
(c) Right of Holders to Petition for Removal of Trustee. Subject to
the provisions of Section 607, any Holder of a Debt Security of any series,
who has been a bona fide Holder of a Debt Security of such
59
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 with respect to the Debt Securities of that series
and the appointment of a successor Trustee, if the Trustee shall fail,
after written request therefor by such Holder, to comply with the
provisions of Subsection (a) above.
(d) Meaning of the Term "Conflicting Interest"; Calculation of
Percentages of Debt Securities. For the purposes of this Section 1006, the
Trustee shall be deemed to have a "conflicting interest" with respect to
the Debt Securities of any series, if
(1) the Trustee is trustee under this Indenture with respect to
Outstanding Debt Securities of any series other than that series or is
trustee under another indenture under which any other securities, or
certificates of interest or participation in any other securities, of
the Company are outstanding; provided, however, that there shall be
excluded from the operation of this paragraph (1) this Indenture with
respect to the Debt Securities of any series other than that series
and any other indenture or indentures under which other securities or
certificates of interest or participation in other securities of the
Company are outstanding, if (i) this Indenture (with respect to the
Debt Securities of that series and each other series for which the
Trustee is trustee hereunder) and such other indenture or indentures
are wholly unsecured, and such other indenture or indentures are
hereafter qualified under the Trust Indenture Act, unless the
Commission shall have found and declared by order pursuant to
subsection (b) of Section 305 or subsection (c) of Section 307 of the
Trust Indenture Act that differences exist between the provisions of
this Indenture with respect to Debt Securities of that series and one
or more other series or between provisions of this Indenture with
respect to Debt Securities of that series and the provisions of such
other indenture or indentures, which are so likely to involve a
material conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify the Trustee
from acting as trustee under this Indenture with respect to the Debt
Securities of that series and such other series or under one of said
other indentures; or (ii) the Company shall have sustained the burden
of proving, on application to the Commission and after the opportunity
for hearing thereon, that the trusteeship under this Indenture with
respect to the Debt Securities of that series and, as the case may be,
with respect to Securities of such other series or under such other
indenture is not so likely to involve a material conflict of interest
as to make it necessary in the public interest or
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for the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to the Debt Securities of
that series and such other series or under one of such indentures;
(2) the Trustee or any of its directors or executive officers is
an obligor upon the Debt Securities of such series issued under this
Indenture or an underwriter for the Company;
(3) the Trustee directly or indirectly controls, or is directly
or indirectly controlled by, or is under direct or indirect common
control with, the Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is
a director, officer, partner, employee, appointee or representative
of the Company, or of any underwriter (other than the Trustee itself)
for the Company who is currently engaged in the business of
underwriting, except that (A) one individual may be a director and/or
an executive officer of the Trustee and a director and/or an
executive officer of the Company, but may not be at the same time an
executive officer of both the Trustee and the Company, and (B) if and
so long as the number of directors of the Trustee in office is more
than nine, one additional individual may be a director and/or an
executive officer of the Trustee and a director of the Company, and
(C) the Trustee may be designated by the Company or by any
underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent or
depositary, or in any other similar capacity, or, subject to the
provisions of paragraph (1) of this Subsection (d), to act as
trustee, whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner
or executive officer thereof, or 20% or more of such voting securities
is beneficially owned, collectively, by any two or more of such
persons; or 10% or more of such voting securities is beneficially
owned either by an underwriter for the Company or by any director,
partner or executive officer thereof, or is beneficially owned,
collectively, by any two or more of such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection (d) defined), (A) 5% or more of the
voting securities, or 10% or more of any other class of security, of
the Company, not including any of the Debt Securities and not
61
including securities issued under any other indenture under which the
Trustee is also trustee, or (B) 10% or more of any class of security
of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection (d) defined), 5% or more of the voting
securities of any person who, to the knowledge of the Trustee, owns
10% or more of the voting securities of, or controls directly or
indirectly, or is under direct or indirect common control with, the
Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection (d) defined), 10% or more of any class
of security of any person who, to the knowledge of the Trustee, owns
50% or more of the voting securities of the Company; or
(9) the Trustee owns, on May 15 in any calendar year, in the
capacity of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other similar
capacity, an aggregate of 25% or more of the voting securities, or of
any class of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a conflicting
interest under paragraph (6), (7) or (8) of this Subsection (d). As to
any of such securities of which the Trustee acquired ownership through
becoming executor, administrator or testamentary trustee of an estate
which included them, the provisions of the preceding sentence shall
not apply, for a period of not more than two years from the date of
such acquisition, to the extent that such securities included in such
estate do not exceed 25% of such voting securities or 25% of any such
class of security. Promptly after May 15 in each calendar year, the
Trustee shall make a check of its holdings of such securities in any
of the above-mentioned capacities as of such May 15. If the Company
shall fail to make payment in full of the principal of (or premium, if
any) or interest of any of the Debt Securities under this Indenture,
when and as the same becomes due and payable, and such failure shall
continue for 30 days thereafter, the Trustee shall make a prompt check
of its holdings of such securities in any of the above-mentioned
capacities as of the date of the expiration of such 30-day period, and
after such date, notwithstanding the foregoing provisions of this
paragraph (9), all such securities so held by the Trustee, with sole
or joint control
62
over such securities vested in it, shall, but only so long as such
failure shall continue, be considered as though beneficially owned by
the Trustee, for the purposes of paragraphs (6), (7) and (8) of this
Subsection (d).
The specification of percentages in paragraphs (5) to (9), inclusive, of
this Subsection (d) shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or paragraph (7) of this Subsection (d).
For the purposes of paragraphs (6), (7), (8) and (9) of this Subsection
(d), (A) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (B) an obligation shall be deemed to be "in default"
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (C) the Trustee shall not be deemed the owner
or holder of (i) any security which it holds as collateral security (as trustee
or otherwise) for an obligation which is not in default as defined in clause (B)
above, or (ii) any security which it holds as collateral security under this
Indenture, irrespective of any default hereunder, or (iii) any security which it
holds as agent for collection, or as a custodian, escrow agent or depositary or
in any similar representative capacity.
For the purposes of this Subsection (d) the term "underwriter" when used
with reference to the Company means every person who, within three years prior
to the time as of which the determination is made, has purchased from the
Company with a view to, or has offered for or has sold for the Company in
connection with, the distribution of any security of the Company which is
outstanding at the time the determination is made, or has participated or has
had a direct or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or indirect underwriting
of any such undertaking; but such term shall not include a person whose interest
was limited to a commission from an underwriter or dealer not in excess of the
usual and customary distributors' or sellers' commission.
The percentages of voting securities and other securities specified in this
Subsection (d) shall be calculated in accordance with the following provisions:
(A) A specified percentage of the voting securities of a person
means such amount of the outstanding voting securities of
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such person as entitles the holder or holders thereof to cast such
specified percentage of the aggregate votes which the holders of all
the outstanding voting securities of such person are entitled to cast
in the direction or management of the affairs of such person.
(B) A specified percentage of a class of securities of a person
means such percentage of the aggregate amount of securities of the
class outstanding.
(C) The term "amount", when used in regard to securities, means
the principal amount, if relating to evidence of indebtedness; the
number of shares, if relating to capital shares; and the number of
units, if relating to any other kind of security.
(D) The term "outstanding" means issued and not held by or for
the account of the issuer. The following securities shall not be
deemed outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating
to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating
to another class of securities of the issuer, if the obligation
evidenced by such other class of securities is not in default as
to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as security
for an obligation of the issuer not in default as to principal or
interest or otherwise; and
(iv) securities held in escrow, if placed in escrow by the
issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(E) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, (i)
that, in the case of secured evidences of indebtedness, all of which
are issued under a single indenture, differences in the interest rates
or maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes, and (ii) that,
in the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates
64
thereof shall not be deemed sufficient to constitute them securities
of different classes, whether or not they are issued under a single
indenture.
In the event that any person other than the Company shall at any time
become an obligor upon any of the Debt Securities, so long as such person shall
continue to be such obligor the provisions of this Subsection (d), in addition
to being applicable to the Trustee and the Company, shall be applicable to the
Trustee and such obligor.
SECTION 1007. Appointment of Successor Trustee.
In case at any time the Trustee shall resign, or shall be removed (unless
the Trustee shall be removed as provided in Subsection (c) of Section 1006, in
which event the vacancy shall be filled as provided in said Subsection), or
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent,
or if a receiver of the Trustee or of its property shall be appointed, or if any
public officer shall take charge or control of the Trustee or of its property of
affairs for the purpose of rehabilitation, conservation or liquidation with
respect to the Debt Securities of one or more series, a successor Trustee with
respect to the Debt Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Debt Securities
of one or more or all of such series and that at any time there shall be only
one Trustee with respect to the Debt Securities of any series) may be appointed
by the Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of that or those series, by an instrument or instruments in
writing signed in duplicate by such Holders and filed, one original thereof with
the Company and the other with the successor Trustee; but, until a successor
Trustee shall have been so appointed by the Holders of Debt Securities of that
or those series as herein authorized, the Company by Board Resolution, or, in
case all or substantially all the assets of the Company shall be in the
possession of one or more custodians or receivers lawfully appointed, or of
trustees in bankruptcy or reorganization proceedings (including a trustee or
trustees appointed under the provisions of the Federal bankruptcy laws, as now
or hereafter constituted), or of assignees for the benefit of creditors, such
receivers, custodians, trustees or assignees, as the case may be, by an
instrument in writing, shall appoint a successor Trustee with respect to the
Debt Securities of such series. Subject to the provisions of Sections 1004, 1005
and 1006, upon the appointment as aforesaid of a successor Trustee with respect
to the Debt Securities of any series, the Trustee with respect of the Debt
Securities of such series shall cease to be Trustee hereunder. After any such
appointment (other than by the Holders of Debt Securities of that or those
series) the person making such appointment shall forthwith cause notice thereof
to be mailed to the Holders of Debt Securities of such series at their addresses
as the same shall then appear on the Security Register; but any successor
Trustee with respect to the Debt Securities of such series so appointed shall
immediately and without further
65
act, be superseded by a successor Trustee appointed by the Holders of Debt
Securities of such series in the manner above prescribed, if such appointment be
made prior to the expiration of one year from the date of the mailing of such
notice by the Company, or by such receivers, trustees or assignees.
If any Trustee with respect to the Debt Securities of one or more series
shall resign because of conflict of interest as provided in Section 1006(a) and
a successor Trustee shall not have been appointed by the Company or by the
Holders of the Debt Securities of such series or, if any successor Trustee so
appointed shall not have accepted its appointment within 30 days after such
appointment shall have been made, the resigning Trustee may apply to any court
of competent jurisdiction for the appointment of a successor Trustee. If in any
other case a successor Trustee shall not be appointed pursuant to the foregoing
provisions of this Section 1007 within three months after such appointment might
have been made hereunder, the Holder of any Debt Security of the applicable
series or any retiring Trustee may apply to any court of competent jurisdiction
to appoint a successor Trustee. Such court may thereupon, in any such case,
after such notice, if any, as such court may deem proper, appoint a successor
Trustee.
Any successor Trustee appointed hereunder with respect to the Debt
Securities of one or more series shall execute, acknowledge and deliver to its
predecessor Trustee and to the Company, or to the receivers, trustees, assignees
or court appointing it, as the case may be, an instrument accepting such
appointment hereunder, and thereupon such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations with respect to such series
of such predecessor Trustee with like effect as if originally named as Trustee
hereunder, and such predecessor Trustee, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to pay over, and
such successor Trustee shall be entitled to receive, all moneys and properties
held by such predecessor Trustee as Trustee hereunder. Nevertheless, on the
written request of the Company or of the successor Trustee or of the Holders of
at least 10% in aggregate principal amount of the Outstanding Debt Securities of
such series, such predecessor Trustee, upon payment of its said charges and
disbursements, shall execute and deliver an instrument transferring to such
successor Trustee upon the trusts herein expressed all the rights, powers and
trusts of such predecessor Trustee and shall assign, transfer and deliver to the
successor Trustee all moneys and properties held by such predecessor Trustee;
and, upon request of any such successor Trustee, the Company shall make,
execute, acknowledge and deliver any and all instruments in writing for more
fully and effectually vesting in and confirming to such successor Trustee all
such authority, rights, powers, trusts, immunities, duties and obligations.
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SECTION 1008. Merger, Conversion or Consolidation of Trustee or Transfer of its
Corporate Trust Business; Authentication of Debt Securities by
Successor Trustee.
Any corporation into which the Trustee or any successor to it in the trusts
created by this Indenture shall be merged or converted, or any corporation with
which it or any successor to it shall be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee or
any such successor to it shall be a party, or any corporation to which the
Trustee or any successor to it shall sell or otherwise transfer all or
substantially all of the corporate trust business of the Trustee, shall be the
successor Trustee under this Indenture without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case at
the time such successor to the Trustee shall succeed to the trusts created by
this Indenture with respect to one or more series of Debt Securities, any of
such Debt Securities 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 Debt Securities so authenticated; and in
case at that time any of the Debt Securities shall not have been authenticated,
any successor to the Trustee may authenticate such Debt Securities either in the
name of any predecessor Trustee hereunder or in the name of the successor
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Debt Securities or in this Indenture provided that the
certificate of the Trustee shall have.
SECTION 1009. Trustee Required to Account for Amounts Collected as Creditor of
the Company Under Certain Conditions.
(a) Trustee, as a Creditor, to Set Apart and Hold Certain Moneys in a
Special Account During Default.
If the Trustee in its individual capacity shall be, or shall become, a
creditor, directly or indirectly, secured or unsecured, of the Company
within four months prior to a default, as the term "default" is defined in
Subsection (e) of this Section 1009, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set apart
and hold in a special account for the benefit of the Trustee individually,
the Holders of Debt Securities and the holders of any other indenture
securities as the term "other indenture securities" is defined in said
Subsection (e):
(1) an amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such four months' period and
valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or
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disposition of any property described in paragraph (2) of this
Subsection (a), or from the exercise of any right of setoff which the
Trustee could have exercised, if any voluntary or involuntary case had
been commenced in respect of the Company under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable Federal
or State bankruptcy, insolvency or other similar law upon the date of
such default; and
(2) all property received by the Trustee in respect of any claim
as such creditor, either as security therefor, or in satisfaction or
composition thereof or otherwise, after the beginning of such four
months' period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
the Company and its other creditors in such property or such proceeds.
(b) Situations Not Requiring Trustee to Account. Nothing contained in
this Section 1009 shall affect the right of the Trustee:
(1) to retain for its own account (A) payments made on account of
any such claim by any person (other than the Company) who is liable
thereon, and (B) the proceeds of the bona fide sale of any such claim
by the Trustee to a third person, and (C) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or
hereafter constituted, or applicable State law;
(2) to realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to
the beginning of such four months' period;
(3) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such four months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default, as defined in Subsection (e) of this Section
1009, would occur within four months; or
(4) to receive payment on any claim referred to in paragraph (2)
or paragraph (3) of this Subsection (b), against the
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release of any property held as security for such claim as provided in
said paragraph (2) or said paragraph (3), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (2), (3) and (4) of this Subsection (b),
property substituted after the beginning of such four months' period for
property held as security at the time of such substitution shall, to the extent
of the fair value of the property released, have the same status as the property
released, and, to the extent that any claim referred to in any of such
paragraphs is created in renewal of, or in substitution for, or for the purpose
of repaying or refunding, any preexisting claim of the Trustee as such creditor,
such claim shall have the same status as such pre-existing claim.
(c) Apportionment of Funds and Property Set Apart. If the Trustee
shall be required to account, the funds and property held in a special
account pursuant to the provisions of this Section 1009 and the proceeds
thereof shall be apportioned among the Trustee, the Holders of Debt
Securities and the holders of other indenture securities in such manner
that the Trustee, the Holders of Debt Securities and the holders of other
indenture securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the Company in
receivership or liquidation proceedings or any voluntary or involuntary
case under the Federal bankruptcy laws, as now or hereafter constituted, or
applicable State law, the same percentage of their respective claims,
figured before crediting to the claim of the Trustee anything on account of
the receipt by it from the Company of the funds and property in such
special account and before crediting to the respective claims of the
Trustee, the Holders of Debt Securities and the holders of other indenture
securities dividends on claims filed against the Company in receivership or
liquidation proceedings or any voluntary or involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or applicable
State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other
than from such dividends and from the funds and property so held in such
special account. As used in this Subsection (c) with respect to any claim,
the term "dividends" shall include any distribution with respect to such
claim in receivership or liquidation proceedings or any voluntary or
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or applicable State law, whether such distribution is made in
cash, securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim.
The court in which such receivership or liquidation proceeding or such
voluntary or involuntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or applicable State law shall be pending shall have
jurisdiction (A) to apportion among the Trustee, the Holders of Debt
69
Securities and the holders of other indenture securities, in accordance
with the provisions of this Subsection (c), the funds and property held in
such special account and the proceeds thereof, or (B) in lieu of such an
apportionment thereof, in whole or in part, to give to the provisions of
this Subsection (c) due consideration in determining the fairness of the
distributions to be made to the Trustee, the Holders of Debt Securities and
the holders of other indenture securities with respect to their respective
claims, in which event it shall not be necessary to liquidate or to
appraise the value of any securities or other property held in such special
account or as security for any such claim, or to make a specific allocation
of such distributions as between the secured and unsecured portions of such
claims, or otherwise to apply the provisions of this Subsection (c) as a
mathematical formula.
(d) In Case of Resignation or Removal of Trustee. In case the Trustee
shall have resigned or been removed after the beginning of such four
months' period, the Trustee shall be subject to the provisions of this
Section 1009 as though such resignation or removal had not occurred. If the
Trustee shall have resigned or been removed prior to the beginning of such
four months' period, it shall be subject to the provisions of this Section
1009 if and only if the receipt of property or reduction of claim which
would have given rise to the obligation to account, if the Trustee had
continued as such trustee hereunder, occurred after the beginning of such
four months' period and within four months after such resignation or
removal.
(e) Meaning of Certain Terms as Used in Section 1009. As used in this
Section 1009, the term "default" means any failure to make payment in full
of the principal of (or premium, if any) or interest or the Debt Securities
or any other indenture securities, when and as such principal (or premium)
or interest becomes due and payable; and the term "other indenture
securities" means securities upon which the Company is an obligor (as the
term "obligor" is defined in the Trust Indenture Act) outstanding under any
other indenture which is qualified under the Trust Indenture Act and under
which the Trustee is also trustee and under which a default exists at the
time of the apportionment of the funds and property held in said special
account.
(f) Creditor Relationships to Which Section 1009 Inapplicable. None of
the foregoing provisions of this Section 1009 shall be applicable in
respect of a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year
or more at the time of acquisition by the Trustee;
70
(2) advances authorized by a court of competent jurisdiction in
the premises, in any voluntary or involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar
law, or by this Indenture, for the purposes of preserving any property
which shall at the time be subject to the lien of this Indenture or of
discharging tax liens or other prior liens or encumbrances thereon, if
notice of such advance and of the circumstances surrounding the making
thereof is given to the Holders of the Debt Securities at the time and
in the manner provided in Section 901 with respect to reports pursuant
to Subsections (a) and (b) thereof;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in this Subsection
(f);
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper, as the term
"self-liquidating paper" is defined in this Subsection (f).
The term "security" or "securities" as used in this Subsection (f) shall
mean any note, stock, treasury stock, bond, debenture, evidence of indebtedness,
certificate of interest or participation in any profit-sharing agreement,
collateral-trust certificate, preorganization certificate or subscription,
transferable share, investment contract, voting-trust certificate, certificate
of deposit for a security, fractional undivided interest in oil, gas or other
mineral rights, or, in general, any interest or instrument commonly known as a
"security," or any certificate of interest or participation in, temporary or
interim certificate for, receipt for, guarantee of, or warrant or right to
subscribe to or purchase, any of the foregoing.
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The term "cash transaction" as used in paragraph (4) of this Subsection (f)
means any transaction in which full payment for goods or securities sold is made
within seven days after the delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or bankers and payable upon demand.
The term "self-liquidating paper" as used in paragraph (6) of this
Subsection (f) means any draft, xxxx of exchange, acceptance or obligation which
is made, drawn, negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacture, shipment, storage or sale of
goods, wares or merchandise and which is secured by documents evidencing title
to, possession of or a lien upon the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security; provided that the security is received by
the Trustee simultaneously with the creation of the creditor relationship with
the Company arising from the making, drawing, negotiating or incurring of the
draft, xxxx of exchange, acceptance or obligation.
In the event that any person other than the Company shall at any time
become an obligor upon any of the Debt Securities, so long as such person shall
continue to be such obligor the provisions of this Section 1009, in addition to
being applicable to the Trustee and the Company, shall be applicable to the
Trustee and such obligor.
SECTION 1010. Trustee May Rely on Officers' Certificate.
Subject to Section 1002, and subject to the provisions of Section 1403 with
respect to the certificates required thereby, whenever in the administration of
the provisions of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or suffering
any action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate with respect thereto delivered to the Trustee, and
such Officers' 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 to be taken or omitted by it under the provisions of this Indenture
upon the faith thereof.
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ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 1101. Discharge of Indenture Upon Payment of Debt Securities.
If and when the principal of (and premium, if any) and interest on all the
Outstanding Debt Securities and all other sums due hereunder shall have been
fully paid, this Indenture shall cease and terminate, and, upon receipt of a
Company Request accompanied by the Officers' Certificate and Opinion of Counsel
required by Section 1403, and upon proof being given to the reasonable
satisfaction of the Trustee that all the Debt Securities have been paid or
satisfied, and upon payment of the costs, charges and expenses incurred or to be
incurred by the Trustee in relation thereto or in carrying out the provisions of
this Indenture, the Trustee shall cancel this Indenture and execute and deliver
to the Company such instruments as shall be requisite to evidence the
satisfaction hereof.
If at any time no Debt Securities have been issued and authenticated or if
all previously issued and authenticated Debt Securities have been cancelled or
delivered to the Trustee for cancellation, upon receipt of a Company Request
accompanied by the Officers' Certificate and Opinion of Counsel required by
Section 1403, and upon payment of the costs, charges and expenses incurred or to
be incurred by the Trustee in relation thereto or in carrying out the provisions
of this Indenture, the Trustee shall cancel this Indenture and execute and
deliver to the Company such instruments as shall be requisite to evidence the
satisfaction hereof.
SECTION 1102. Discharge of Indenture Upon Deposit of Moneys.
If, at the Maturity of the Debt Securities of any series, the Company shall
deposit with the Trustee, in trust for the benefit of the Holders thereof, funds
sufficient to pay the principal of (and premium, if any) and interest on all of
the Outstanding Debt Securities of such series, and shall pay all costs, charges
and expenses incurred or to be incurred by the Trustee in relation thereto or in
carrying out the provisions of this Indenture, the Trustee, upon receipt of a
Company Request accompanied by the Officers' Certificate and Opinion of Counsel
required by Section 1403, shall cancel and satisfy this Indenture. The Trustee
shall apply the moneys so deposited to the payment to the Holders of the Debt
Securities of such series of all sums due thereon for principal (and premium, if
any) and interest.
SECTION 1103. Discharge of Certain Indebtedness Upon Deposit of Moneys.
If this Section 1103 is specified in the manner contemplated by Section 301
to be applicable to Debt Securities of any series, the Company shall
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be deemed to have paid and discharged the entire indebtedness on all Outstanding
Debt Securities of such series if the Company shall (a) deposit with the
Trustee, in trust for the benefit of the Holders thereof, (1) funds sufficient
to pay or (2) such amount of Government Obligations as will or will together
with the income thereon, without consideration of any reinvestment thereof, be
sufficient to pay the principal of (and premium, if any) and interest on the
Debt Securities of such series, as such payments shall become due from time to
time, and (b) pay or make arrangements satisfactory to the Trustee for paying
all costs, charges and expenses incurred by the Trustee in relation thereto or
in carrying out the provisions of this Indenture in relation thereto, then this
Indenture shall cease to be of further effect with respect to Debt Securities of
such series (except as to (i) rights of registration of transfer, substitution
and exchange of Debt Securities of such series, (ii) rights of Holders to
receive payments of the principal of (and premium, if any) and interest on the
Debt Securities of such series as such payments shall become due from time to
time and other rights, duties and obligations of Holders as beneficiaries hereof
with respect to the amounts so deposited with the Trustee, (iii) provisions, if
any, applicable to such series relating to optional redemption and Mandatory and
Optional Sinking Fund Payments and (iv) the rights, obligations and immunities
of the Trustee hereunder (for which purposes the Debt Securities of such series
shall be deemed Outstanding)), and the Company shall have no further obligations
or liability with respect to any Debt Securities of such series.
In any such case the Trustee, upon receipt of a Company Request accompanied
by the Officers' Certificate and Opinion of Counsel required by Section 1403,
shall execute and deliver to the Company such instruments as shall be requisite
to evidence the satisfaction thereof with respect to Debt Securities of such
series. The Trustee shall apply the amounts so deposited and the proceeds
thereof to the payment to the Holders of the Debt Securities of such series of
all sums due thereon for principal (and premium, if any) and interest.
SECTION 1104. Termination of Certain Obligations Upon Deposit of Moneys.
If this Section 1104 is specified in the manner contemplated by Section 301
to be applicable to Debt Securities of any series, the Company's obligations on
all Debt Securities of such series shall be deemed to be terminated on the 91st
day after the Company deposits with the Trustee, in trust for the benefit of the
Holders thereof, (a) funds sufficient to pay, or (b) such amount of Government
Obligations as will or will together with the income thereon, without
consideration of any reinvestment thereof, be sufficient to pay the principal of
(and premium, if any) and interest on all of the Debt Securities of such series,
as such payments shall become due from time to time; provided, however, that no
Event of Default under Section 601(e) or 601(f) or event which, with notice or
lapse of time or both, would constitute such an Event of Default, shall have
occurred and be continuing on such date; and provided further that such
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termination shall not relieve the Company of its obligations under the Debt
Securities of such series and this Indenture to pay when due the principal of
(and premium, if any) and interest on the Debt Securities of such series if not
paid (or considered paid) when due from the funds and Government Obligations
(and the income thereon) so deposited. Notwithstanding the termination of any
obligations of the Company in accordance with this Section 1104, the Company's
rights and obligations under Sections 305, 306, 501, 502, 503, 903, 1001, 1004,
1105 and 1106, and provisions, if any, applicable to such series relating to
optional redemption and Mandatory and Optional Sinking Fund Payments, shall
survive until the Debt Securities of such series are no longer Outstanding.
Thereafter the Company's rights and obligations under Sections 1001, 1105 and
1106 shall survive.
After a deposit as provided herein, the Trustee, upon receipt of a Company
Request, shall acknowledge in writing the discharge of the Company's obligations
under this Indenture with respect to Debt Securities of a particular series
except for those surviving obligations specified above. The Trustee shall apply
the amounts so deposited and the proceeds thereof to the payment to the Holders
of the Debt Securities of such series of all sums due thereon for principal (and
premium, if any) and interest.
SECTION 1105. Certain Deposits With the Trustee to be Held in Escrow.
Any deposits with the Trustee referred to in Section 1103 or 1104 shall be
irrevocable (except to the extent provided in Section 1106) and shall be made
under the terms of an escrow trust agreement in form and substance satisfactory
to the Trustee. If any Outstanding Debt Securities of a series are to be
redeemed prior to their Stated Maturity, whether pursuant to any optional
redemption provisions or in accordance with any Mandatory or Optional Sinking
Fund Payments, the applicable escrow trust agreement shall provide therefor, and
the Company shall make such arrangements as are satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company. The agreement shall provide that, upon satisfaction of
any Mandatory Sinking Fund Payments, whether by deposit of funds, application of
proceeds of deposited Government Obligations or, if permitted, by delivery of
Debt Securities, the Trustee shall pay or deliver over to the Company as excess
funds pursuant to Section 1106 all funds or obligations then held under the
agreement and allocable to the Mandatory Sinking Fund Payments so satisfied.
If Debt Securities of a series with respect to which such deposits are made
may be subject to later redemption at the option of the Company or pursuant to
Optional Sinking Fund Payments, the applicable escrow trust agreement may, at
the option of the Company, provide therefor. In the case of an optional
redemption in whole or in part, such agreement shall require the Company to
deposit with the Trustee on or before the date on which notice of
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redemption is given funds sufficient to pay the Redemption Price of the Debt
Securities to be redeemed together with all unpaid interest thereon to the
Redemption Date. Upon such deposit of funds, the Trustee shall pay or deliver
over to the Company as excess funds pursuant to Section 1106 all funds or
obligations then held under such agreement and allocable to the Debt Securities
to be redeemed. In the case of exercise of optional Sinking Fund Payment rights
by the Company, such agreement may, at the option of the Company, provide that
upon deposit by the Company with the Trustee of funds pursuant to such exercise
the Trustee shall pay or deliver over to the Company as excess funds pursuant to
Section 1106 all funds or obligations then held under such agreement for such
series and allocable to the Debt Securities to be redeemed.
SECTION 1106. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any money or Government Obligations held by them at
any time that are not required for the payment of the principal of (and premium,
if any) and interest on the Debt Securities of any series for which money or
Government Obligations have been deposited, including any such money or
Government Obligations held by the Trustee under any escrow trust agreement
entered into pursuant to Section 1105.
The provisions of the last paragraph of Section 503 shall apply to any
money held by the Trustee or any Paying Agent under this Article that remains
unclaimed for two years after the Maturity of any series of Debt Securities for
which money or Government Obligations have been deposited pursuant to Article
Eleven.
SECTION 1107. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money and/or
Government Obligations deposited in trust in accordance with Section 1103 or
1104 by reason of any legal proceeding or by reason of any order or judgment of
any court or Governmental Authority enjoining, restraining or otherwise
prohibiting such application (including any such order or judgment requiring the
payment of such money and/or Government Obligations to the Company), the
Company's obligations under this Indenture and the Debt Securities shall be
revived and reinstated as of such date, until such time as the Trustee or such
Paying Agent is permitted to apply all such money and/or Government Obligations
in accordance with Section 1103 or 1104, as the case may be; provided, however,
that if the Company has made any payment of the principal of (or premium, if
any) or interest on any Debt Securities because of the reinstatement of its
obligations, the Company shall be entitled to receive the aggregate amount of
such payments from the Trustee or such Paying Agent as excess funds pursuant to
Section 1106. In the event that for any reason the Trustee
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or such Paying Agent is unable to pay any such amount pursuant to Section 1106,
the Company shall be subrogated to the rights of the Holders of such Debt
Securities to receive such payments from the money and/or Government Obligations
held by the Trustee or such Paying Agent pursuant to Section 1105.
SECTION 1108. Indemnity for Government Obligations.
The Company shall pay and shall indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the deposited Government
Obligations or the principal or interest received on such Obligations.
SECTION 1109. Deposits of Foreign Currencies.
Notwithstanding the foregoing provisions of this Article Eleven, if the
Debt Securities of any series are payable in a Foreign Currency, the coin or
currency or currency unit or the nature of the government obligations to be
deposited with the Trustee under the foregoing provisions of this Article Eleven
shall be as set forth in the Officers' Certificate or established in the
supplemental indenture under which the Debt Securities of such series are
issued.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 1201. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of (or premium,
if any) or interest on any Debt Security or for any claim based thereon or
otherwise in respect thereof or of the indebtedness represented thereby, or upon
any obligation, covenant or agreement of this Indenture, against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitutional provision, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly agreed and understood
that this Indenture and the Debt Securities are solely corporate obligations,
and that no personal liability whatsoever shall attach to, or be incurred by,
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, because of the incurring of
the indebtedness hereby authorized or under or by reason of any of the
obligations, covenants, promises or agreements contained in this Indenture or in
any of the Debt Securities or to be implied herefrom or therefrom, and that all
liability, if any, of that character against every such incorporator,
stockholder, officer and director is, by the acceptance of the Debt Securities
and as a condition
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of, and as part of the consideration for, the execution of this Indenture and
the issue of the Debt Securities, expressly waived and released.
ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 1301. Without Consent of Holders, Company and Trustee May Enter Into
Supplemental Indentures for Specified Purposes.
The Company and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any one or more or all of the following purposes:
(a) to add to the covenants and agreements of the Company, to be
observed thereafter and during the period, if any, in such supplemental
indenture or indentures expressed, and to add Events of Default, in each
case for the protection or benefit of the Holders of all or any series of
the Debt Securities (and if such covenants, agreements and Events of
Default are to be for the benefit of fewer than all series of Debt
Securities, stating that such covenants, agreements and Events of Default
are expressly being included for the benefit of such series as shall be
identified therein);
(b) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Debt Securities of one
or more series;
(c) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by a successor, transferee or
lessee corporation of the covenants and obligations of the Company
contained in the Debt Securities of one or more series and in this
Indenture or any supplemental indenture;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any indenture supplemental hereto which may be
defective or inconsistent with any other provision contained herein or in
any supplemental indenture, or to make any other provision in regard to
matters or questions arising under this Indenture which the Board of
Directors may deem necessary or desirable and which shall not materially
adversely affect the interests of the Holders of the Debt Securities;
(e) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Debt Securities any property or assets which
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the Company may be required to convey, transfer, assign, mortgage or pledge
in accordance with the provisions of Section 504;
(f) to prohibit the authentication and delivery of additional series
of Debt Securities;
(g) to establish the forms and terms of the Debt Securities of any
series as permitted in Sections 201, 202 and 301 and to delete or modify
any Events of Default with respect to such Debt Securities, or to authorize
the issuance of additional Debt Securities of a series previously
authorized or to add to the conditions, limitations or restrictions on the
authorized amount, terms or purposes of issue, authentication or delivery
of the Debt Securities of any series, as herein set forth, or other
conditions, limitations or restrictions thereafter to be observed; and
(h) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect or maintain the qualification
of this Indenture under the Trust Indenture Act.
Subject to the provisions of Section 1303, the Trustee is authorized to
join with the Company in the execution of any such supplemental indenture, to
make the further agreements and stipulations which may be therein contained and
to accept the conveyance, transfer, assignment, mortgage or pledge of any
property or assets thereunder.
Any supplemental indenture authorized by the provisions of this Section
1301 may be executed by the Company and the Trustee without the consent of the
Holders of any of the Outstanding Debt Securities, notwithstanding any of the
provisions of Section 1302.
SECTION 1302. Modification of Indenture by Supplemental Indenture With Consent
of Holders.
With the consent (evidenced as provided in Article Seven) of the holders of
not less than a majority in aggregate principal amount of the Debt Securities at
the time Outstanding which are affected by such indenture supplemental hereto
(voting as a single class), the Company, when authorized by a resolution of the
Board of Directors, 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 Debt Securities of such series to be affected;
provided, however, that no such supplemental indenture shall (a) extend the
Stated Maturity of any Debt Security, or reduce the rate or extend the time of
payment of interest thereon, or reduce the amount of the
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principal thereof, or reduce any premium payable upon the redemption thereof, or
reduce the amount of the principal of any Original Issue Discount Security that
would be due and payable upon a declaration of the acceleration of the Maturity
thereof pursuant to Section 602 or make the principal thereof or interest or
premium thereon payable in any coin or currency other than that provided in the
Debt Securities, or impair the right to institute suit for the enforcement of
any such payment on or after the Maturity thereof as provided in Section 607,
without the consent of the Holder of each Debt Security so affected, or (b)
reduce the aforesaid percentage of Debt Securities of any series, the Holders of
which are required to consent to any such supplemental indenture, without the
consent of the Holders of all the Debt Securities then Outstanding, or (c)
modify, without the written consent of the Trustee, the rights, duties or
immunities of the Trustee.
A supplemental indenture which changes or eliminates any provision of this
Indenture that has expressly been included solely for the benefit of one or more
particular series of Debt Securities, or which modifies the rights of the
Holders of Debt Securities of such series with respect of such provision, shall
be deemed not to affect the rights under this Indenture of the Holders of Debt
Securities of any other series.
It shall not be necessary for the consent of the Holders under this Section
1302 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 Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 1302, the
Company shall mail a notice, setting forth in general terms the substance of
such supplemental indenture, to the Holders of Debt Securities at their
addresses as the same shall then appear in the Security Register. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 1303. Trustee to Join in Execution of Supplemental Indenture.
Upon receipt of a Company Request accompanied by the Officers' Certificate
and Opinion of Counsel required by Section 1403 and by
(a) a supplemental indenture duly executed on behalf of the Company;
(b) a copy of a Board Resolution, certified by the Secretary or an
Assistant Secretary of the Company, authorizing the execution of said
supplemental indenture;
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(c) an Opinion of Counsel, stating that said supplemental indenture
complies with, and that the execution thereof is authorized or permitted
by, the provisions of this Indenture; and
(d) if said supplemental indenture shall be executed pursuant to
Section 1302, evidence (as provided in Article Seven) of the consent
thereto of the Holders required to consent thereto as in Section 1302
provided,
then the Trustee shall join with the Company in the execution of said
supplemental indenture unless said 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 said supplemental indenture.
SECTION 1304. Effect of Supplemental Indenture.
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article Thirteen, this Indenture shall be and be deemed to be modified
and amended in accordance therewith and, except as herein otherwise expressly
provided, the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and the Holders of
all of the Debt Securities or of the Debt Securities of any series affected, as
the case may be, 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.
SECTION 1305. Matters Provided for in Supplemental Indenture May Be Noted on
Debt Securities, or New Debt Securities Appropriately Modified
May Be Issued in Exchange for Outstanding Debt Securities.
Debt Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article Thirteen may
bear a notation in a form approved by the Trustee as to any matter provided for
in such supplemental indenture. If the Company or the Trustee shall so
determine, new Debt Securities 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 Company,
authenticated by the Trustee and delivered in exchange for the Debt Securities
then Outstanding in equal aggregate principal amounts, and such exchange shall
be made without cost to the Holders of the Debt Securities.
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SECTION 1306. Supplemental Indentures to Conform to Trust Indenture Act.
Every supplemental indenture executed pursuant to the provisions of this
Article Thirteen shall conform to the requirements of the Trust Indenture Act.
ARTICLE FOURTEEN
PROVISIONS OF GENERAL APPLICATION
SECTION 1401. Consolidation, Merger, Sale or Lease.
Subject to the provisions of Section 505, nothing contained in this
Indenture or in the Debt Securities shall be deemed to prevent the consolidation
or merger of the Company with or into any other corporation, or the merger into
the Company of any other corporation, or the sale or lease by the Company of its
property and assets as, or substantially as, an entirety, or otherwise.
Upon any consolidation or merger, or any sale other than for cash or lease
of all or substantially all of the assets of the Company in accordance with the
provisions of Section 505, the corporation formed by such consolidation or into
which the Company shall have been merged or to which such sale or lease shall
have been made shall succeed to and be substituted for the Company with the same
effect as if it had been named herein as a party hereto, and thereafter from
time to time such corporation may exercise each and every right and power of the
Company under this Indenture, in the name of the Company or in its own name; and
any act or proceeding by any provision of this Indenture required or permitted
to be done by the Board of Directors or any officer of the Company may be done
with like force and effect by the like board or officer of any corporation that
shall at the time be the successor of the Company hereunder. In the event of any
such sale or conveyance, but not any such lease, the Company (or any successor
corporation which shall theretofore have become such in the manner described in
Section 505) shall be discharged from all obligations and covenants under the
Indenture and the Debt Securities and may thereupon be dissolved and liquidated.
SECTION 1402. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities, express or implied, is
intended, or shall be construed, to confer upon, or to give to, any Person other
than the parties hereto and their successors and the Holders of Debt Securities
any right, remedy or claim under or by reason of this Indenture or any covenant,
condition, stipulation, promise or agreement hereof or herein, and all
covenants, conditions, stipulations, promises and agreements hereof and herein
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shall be for the sole and exclusive benefit of the parties hereto and their
successors and of the Holders of the Debt Securities.
SECTION 1403. Evidence of Compliance with Conditions Precedent; Form of
Documents Delivered to Trustee.
As evidence of compliance with the conditions precedent provided for in
this Indenture (including any covenants, compliance with which constitutes a
condition precedent) which relate to the satisfaction and discharge of this
Indenture or to any other action to be taken by the Trustee upon Company Order
or Request, the Company will furnish to the Trustee an Officers' Certificate,
stating that such conditions precedent have been complied with, and an Opinion
of Counsel stating that, in the opinion of such counsel, such conditions
precedent have been complied with.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that each
individual making such certificate or opinion has read such condition or
covenant; (2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of each
such individual, he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or not such condition
or covenant has been complied with; and (4) a statement as to whether or not, in
the opinion of each such individual, such condition or covenant has been
complied with.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company unless such officer or counsel knows that the
certificate or opinion or representations with respect to such matters are
erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Notwithstanding any provision of this Indenture authorizing the Trustee
conclusively to rely upon any certificates or opinions, the Trustee before
granting any application by the Company or taking or refraining from taking any
other action in reliance thereon, may require any further evidence or make any
further investigation as to the facts or matters stated therein which it may, in
good faith, deem reasonable in the circumstances, and in connection therewith
the Trustee may examine or cause to be examined the pertinent books, records and
premises of the Company or of any Subsidiary; and the Trustee shall, in any such
case, require such further evidence or make such further investigation as may be
requested by the Holders of a majority in principal amount of the Debt
Securities then Outstanding; provided that, if payment to the Trustee of the
costs, expenses and liabilities likely to be incurred by it in making such
investigation is not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee before making such
investigation may require reasonable indemnity against such costs, expenses or
liabilities. Any further evidence that may be requested by the Trustee pursuant
to any of the provisions of this paragraph shall be furnished by the Company at
its own expense, and any cost, expenses and liabilities incurred by the Trustee
pursuant to any of the provisions of this paragraph shall be paid by the
Company, or, if paid by the Trustee, shall be repaid by the Company, upon
demand, with interest at the lowest rate borne by the Debt Securities of any
series, but in no event less than 5%, and, until such repayment, shall be
secured by a lien on any moneys held by the Trustee hereunder prior to any
rights therein of the Holders of Debt Securities.
SECTION 1404. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with
another provision included in this Indenture which is required to be included in
this Indenture by any of the provisions of the Trust Indenture Act, such
required provision shall control.
SECTION 1405. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
action of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
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(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at Xxx Xxxxxxx Xxxxxxx, Xxxxxxxx, Xxxx 00000, attention:
Chief Financial Officer, or at any other address previously furnished in
writing to the Trustee by the Company. Any request, demand, authorization,
direction, notice, consent or waiver addressed as provided in this
Subsection (2) and given by first-class mail, postage prepaid, shall be
conclusively presumed given when mailed.
SECTION 1406. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice. Waivers of notice by Holders shall be with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
If, in the event of suspension of regular mail service or for any other
reason, it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 1407. Effect of Headings and Table of Contents.
The Article, Section and Subsection headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 1408. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1409. Separability Clause.
In case any provision in this Indenture or in the Debt Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 1410. Governing Law.
This Indenture and the Debt Securities shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 1411. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debt Security shall not be a Business Day at any Place of
Payment for such Debt Security, then (notwithstanding any other provision of
this Indenture or of the Debt Securities) payments of principal (and premium, if
any) and interest need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, and no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, to the date of such payment.
SECTION 1412. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of which
when so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
86
IN WITNESS WHEREOF, THE LIMITED, INC. has caused this Indenture to be
executed in its corporate name by one of its officers thereunto duly authorized,
and its corporate seal to be hereunto affixed and to be attested by its
Secretary, an Assistant Secretary, its Treasurer or an Assistant Treasurer, and
THE BANK OF NEW YORK has caused this Indenture to be executed in its corporate
name by one of its officers thereunto duly authorized, and its corporate seal to
be hereunto affixed and to be attested by one of its authorized officers, all as
of the date first above written.
THE LIMITED, INC.
[CORPORATE SEAL] By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Print Name: Xxxxxxxx X. Xxxxxx
Print Title: VP-Treasurer
Attest: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Print Name: Xxxxxxx X. Xxxxxxxx
Print Title: Assistant Treasurer
THE BANK OF NEW YORK
[CORPORATE SEAL] By: /s/ Xxxxxxx X. XxXxxxxxx
---------------------------------
Print Name: Xxxxxxx X. XxXxxxxxx
Print Title: Assistant Vice President
Attest: /s/ Xxxxx X. XxXxxxxx
-----------------------------
Print Name: Xxxxx X. XxXxxxxx
Print Title: Assistant Vice President
87
STATE OF OHIO :
: ss.:
COUNTY OF FRANKLIN :
On the day 23rd day of March, in the year 1989, before me personally came
Xxxxxxxx Xxxxxx to me known, who, being by me duly sworn, did depose and say
that [s]he resides at Columbus, Ohio; that [s]he is the Vice President of The
Limited, Inc., a Delaware corporation, the corporation described in and which
executed the above instrument; that [s]he knows the seal of said corporation;
that the seal affixed to said instrument bearing the corporate name of said
corporation is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that [s]he signed his name thereto
by like authority.
/s/ Xxxxx X. Xxxxx
-------------------------------------------
Print Name: Xxxxx X. Xxxxx
-------------------------------
Notary Public
Serial Number, if any:
--------------------
My commission expires: September 16, 0000
--------------------
XXXXX XX XXX XXXX :
: ss.:
COUNTY OF NEW YORK :
On the day 22nd day of March, in the year 1989, before me personally came
Xxxxxxx X. XxXxxxxxx to me known, who, being by me duly sworn, did depose and
say that he resides at Brooklyn, N.Y., that he is the Assistant Vice President
of The Bank of New York, the corporation described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument bearing the corporate name of said corporation is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[CORPORATE SEAL]
/s/ Xxxxxxx X. XxXxxx
-----------------------------------
88
Exhibit A
Form of election to receive payments in
[Dollars or other applicable currency]
or to rescind such election
The undersigned, registered owner of certificate number R- , representing
[name of series of Debt Securities] of The Limited, Inc. (the "Debt Securities")
in an aggregate principal amount of , hereby.
[ ] elects to receive all payments in respect of the Debt
Securities in [Dollars or other applicable currency], it
being understood that such election shall take effect as
provided in the Debt Securities and, subject to the terms
and conditions set forth in the indenture under which the
Debt Securities were issued, shall remain in effect until it
is rescinded by the undersigned or until such certificate is
transferred.
[ ] rescinds the election previously submitted by the
undersigned to receive all payments in respect of the Debt
Securities in [Dollars or other applicable currency], it
being understood that such rescission shall take effect as
provided in the Debt Securities.
-----------------------------------
(Name of Owner)
-----------------------------------
(Signature of Owner)
89
