EXHIBIT 4.8
COMPUTER SCIENCES CORPORATION,
Issuer
AND
_____________________,
Trustee
SUBORDINATED DEBT SECURITIES
INDENTURE
Dated as of ________________, ____
TABLE OF CONTENTS
Page
----
ARTICLE I. DEFINITIONS........................................................................................ 1
Section 1.01 Definitions of Terms............................................................ 1
ARTICLE II. ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES..................... 5
Section 2.01 Designation and Terms of Securities............................................. 5
Section 2.02 Form of Securities and Trustee's Certificate.................................... 7
Section 2.03 Denominations: Provisions for Payment.......................................... 7
Section 2.04 Execution and Authentications................................................... 9
Section 2.05 Registration of Transfer and Exchange........................................... 9
Section 2.06 Temporary Securities............................................................ 10
Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities................................. 10
Section 2.08 Cancellation.................................................................... 11
Section 2.09 Benefits of Indenture........................................................... 11
Section 2.10 Authenticating Agent............................................................ 12
Section 2.11 Global Securities............................................................... 12
Section 2.12 CUSIP Numbers................................................................... 13
ARTICLE III. REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS............................................. 14
Section 3.01 Redemption...................................................................... 14
Section 3.02 Notice of Redemption............................................................ 14
Section 3.03 Payment Upon Redemption......................................................... 15
Section 3.04 Sinking Fund.................................................................... 15
Section 3.05 Satisfaction of Sinking Fund Payments with Securities........................... 16
Section 3.06 Redemption of Securities for Sinking Fund....................................... 16
ARTICLE IV. CERTAIN COVENANTS................................................................................. 16
Section 4.01 Payment of Principal, Premium and Interest...................................... 16
Section 4.02 Maintenance of Office or Agency................................................. 17
Section 4.03 Paying Agents................................................................... 17
Section 4.04 Compliance with Laws, Taxes..................................................... 17
Section 4.05 Corporate Existence............................................................. 18
Section 4.06 Statement by Officers as to Default............................................. 18
Section 4.07 Waiver of Certain Covenants..................................................... 18
Section 4.08 Appointment to Fill Vacancy in Office of Trustee................................ 18
ARTICLE V. SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.................................. 19
Section 5.01 Company to Furnish Trustee Names and Addresses of Securityholders............... 19
Section 5.02 Preservation of Information; Communications with Securityholders................ 19
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Section 5.03 Reports by the Company.......................................................... 19
Section 5.04 Reports by the Trustee.......................................................... 20
ARTICLE VI. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT................................... 20
Section 6.01 Events of Default............................................................... 20
Section 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee................. 22
Section 6.03 Application of Moneys Collected................................................. 23
Section 6.04 Limitation on Suits............................................................. 24
Section 6.05 Rights and Remedies Cumulative; Delay or Omission not Waiver.................... 25
Section 6.06 Control by Securityholders...................................................... 25
Section 6.07 Undertaking to Pay Costs........................................................ 25
Section 6.08 Waiver Of Usury, Stay Or Extension Laws......................................... 26
ARTICLE VII. CONCERNING THE TRUSTEE........................................................................... 26
Section 7.01 Certain Duties and Responsibilities of Trustee.................................. 26
Section 7.02 Certain Rights of Trustee....................................................... 27
Section 7.03 Trustee not Responsible for Recitals or Issuance or Securities.................. 28
Section 7.04 May Hold Securities............................................................. 29
Section 7.05 Moneys Held in Trust............................................................ 29
Section 7.06 Compensation and Reimbursement.................................................. 29
Section 7.07 Reliance on Officers' Certificate............................................... 29
Section 7.08 Disqualification; Conflicting Interests......................................... 30
Section 7.09 Corporate Trustee Required; Eligibility......................................... 30
Section 7.10 Resignation and Removal; Appointment of Successor............................... 30
Section 7.11 Acceptance of Appointment By Successor.......................................... 31
Section 7.12 Merger, Conversion, Consolidation or Succession to Business..................... 33
Section 7.13 Preferential Collection of Claims Against the Company........................... 33
ARTICLE VIII. CONCERNING THE SECURITYHOLDERS.................................................................. 33
Section 8.01 Evidence of Action by Securityholders........................................... 33
Section 8.02 Proof of Execution by Securityholders........................................... 34
Section 8.03 Who May be Deemed Owners........................................................ 34
Section 8.04 Certain Securities Owned by Company Disregarded................................. 34
Section 8.05 Actions Binding on Future Securityholders....................................... 35
ARTICLE IX. SUPPLEMENTAL INDENTURES........................................................................... 35
Section 9.01 Supplemental Indentures Without the Consent of Securityholders.................. 35
Section 9.02 Supplemental Indentures with Consent of Securityholders......................... 36
Section 9.03 Effect of Supplemental Indentures............................................... 36
Section 9.04 Securities Affected by Supplemental Indentures.................................. 37
Section 9.05 Execution of Supplemental Indentures............................................ 37
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ARTICLE X. SUCCESSOR CORPORATION.............................................................................. 38
Section 10.01 Consolidation, Merger and Sale of Assets........................................ 38
Section 10.02 Successor Corporation Substituted............................................... 38
ARTICLE XI. SATISFACTION AND DISCHARGE........................................................................ 39
Section 11.01 Satisfaction and Discharge of Indenture......................................... 39
Section 11.02 Defeasance and Discharge of Obligations; Covenant Defeasance.................... 39
Section 11.03 Deposited Moneys to be Held in Trust............................................ 41
Section 11.04 Payment of Moneys Held by Paying Agents......................................... 41
Section 11.05 Repayment to Company............................................................ 41
Section 11.06 Reinstatement................................................................... 42
ARTICLE XII. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.................................. 42
Section 12.01 No Recourse..................................................................... 42
ARTICLE XIII. MISCELLANEOUS PROVISIONS........................................................................ 43
Section 13.01 Effect on Successors and Assigns................................................ 43
Section 13.02 Actions by Successor............................................................ 43
Section 13.03 Notices......................................................................... 43
Section 13.04 Governing Law................................................................... 44
Section 13.05 Treatment of Securities as Debt................................................. 44
Section 13.06 Compliance Certificates and Opinions............................................ 44
Section 13.07 Payments on Business Days....................................................... 45
Section 13.08 Conflict with Trust Indenture Act............................................... 45
Section 13.09 Counterparts.................................................................... 45
Section 13.10 Separability.................................................................... 45
Section 13.11 No Adverse Interpretation of Other Agreements................................... 45
Section 13.12 Table of Contents, Headings, Etc................................................ 45
ARTICLE XIV SUBORDINATION OF SECURITIES....................................................................... 46
Section 14.01 Subordination Terms............................................................. 46
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Cross Reference Table*
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
------------------- ---------
310(a)................................................................................. 7.09
310(b)................................................................................. 7.08
7.10
310(c)................................................................................. Inapplicable
311(a)................................................................................. 7.13
311(b)................................................................................. 7.13
311(c)................................................................................. Inapplicable
312(a)................................................................................. 5.01
5.02(a)
312(b)................................................................................. 5.02(b)
312(c)................................................................................. 5.02(b)
313(a)................................................................................. 5.04(a)
313(b)................................................................................. 5.04(b)
313(c)................................................................................. 5.04(a)
5.04(b)
313(d)................................................................................. 5.04(c)
314(a)................................................................................. 5.03
314(b)................................................................................. Inapplicable
314(c)................................................................................. 13.06
314(d)................................................................................. Inapplicable
314(e)................................................................................. 13.06
314(f)................................................................................. Inapplicable
315(a)................................................................................. 7.01
315(b)................................................................................. 5.04
315(c)................................................................................. 7.01(a)
315(d)................................................................................. 7.01(b)
315(e)................................................................................. 6.07
316(a)................................................................................. 6.06, 8.04
316(b)................................................................................. 6.04
316(c)................................................................................. 8.01
317(a)................................................................................. 6.02
317(b)................................................................................. 4.03
318(a)................................................................................. 13.08
________________
* This Cross-Reference Table does not constitute part of the Indenture and
shall not have any bearing on the interpretation of any of its terms or
provisions.
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INDENTURE, dated as of __________, ____, between Computer Sciences
Corporation, a Nevada corporation (the "Company"), and __________________, a
__________, as trustee (the "Trustee").
WHEREAS, this Indenture provides for the issuance of unsecured subordinated
debt securities (hereinafter referred to as the "Securities"), in an unlimited
aggregate principal amount to be issued from time to time in one or more series
as in this Indenture provided, as registered Securities without coupons, to be
authenticated by the certificate of the Trustee;
WHEREAS, this Indenture is subject to the provisions of the Trust Indenture
Act that are deemed to be incorporated into this Indenture and shall, to the
extent applicable, be governed by such provisions; and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the holders of Securities:
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions of Terms.
--------------------
The terms defined in this Section 1.01 (except as in this Indenture
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section 1.01 and shall include the
plural as well as the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act or that are by reference in the Trust
Indenture Act defined in the Securities Act of 1933, as amended (the "Securities
Act") (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of the
execution of this instrument.
"Affiliate" means (a) any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
other obligor upon the Securities, (b) any spouse, immediate family member or
other relative who has the same principal residence of any Person described in
(a) above, (c) any trust in which any such Persons described in clause (a) or
(b) above has a beneficial interest and (d) any corporation or other
organization of which any such Persons described in clause (a), (b) or (c) above
collectively own more than 50% of the equity of such entity. For purposes of
this definition, beneficial ownership of 10% or more of the voting common equity
(on a fully diluted basis) or warrants to purchase such equity (whether or not
currently exercisable) of a Person shall be deemed to be control of such Person.
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"Authenticating Agent" means an authenticating agent with respect to all or
any of the series of Securities appointed with respect to all or any series of
the Securities by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or state
law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee of such Board of Directors.
"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.
"Business Day" means, with respect to any series of Securities, any day
other than a day on which Federal or State banking institutions in the Borough
of Manhattan, The City of New York, are authorized or obligated by law,
executive order or regulation to close.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of corporate stock or partnership
interests.
"Commission" means the Securities and Exchange Commission.
"Company" means Computer Sciences Corporation, a corporation duly organized
and existing under the laws of the State of Nevada, and, subject to the
provisions of Article Ten, shall also include its successors and assigns.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at________________________________,
except that whenever a provision herein refers to an office or agency of the
Trustee in the Borough of Manhattan, The City of New York, such office is
located, at the date hereof, at ____________________________________.
"Custodian" means any receiver, trustee, assignee, liquidator, or similar
official under any Bankruptcy Law.
"Default" means any event, act or condition that with notice or lapse of
time, or both, would constitute an Event of Default.
"Depositary" means, with respect to Securities of any series, for which the
Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing agency under the Securities
and Exchange Act of 1934, as amended (the "Exchange Act"), or other applicable
statute or regulation, which, in each case, shall be designated by the Company
pursuant to either Section 2.01 or 2.11.
"Event of Default" means, with respect to Securities of a particular series
any event specified in Section 6.01, continued for the period of time, if any,
therein designated.
2
"Global Security" means, with respect to any series of Securities, a
Security executed by the Company and delivered by the Trustee to the Depositary
or pursuant to the Depositary's instruction, all in accordance with the
Indenture, which shall be registered in the name of the Depositary or its
nominee.
"Governmental Obligations" means securities that are (i) direct obligations
of the United States of America 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 of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of
such depositary receipt; provided, however, that (except as required by law)
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such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"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.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof.
"Interest Payment Date", when used with respect to any installment of
interest on a Security of a particular series, means the date specified in such
Security or in a Board Resolution or in an indenture supplemental hereto with
respect to such series as the fixed date on which an installment of interest
with respect to Securities of that series is due and payable.
"Officer" means the President, the Treasurer, any Assistant Treasurer,
Controller, Secretary or any Vice-President of the Company.
"Officers' Certificate" means a certificate signed by two Officers that is
delivered to the Trustee in accordance with the terms hereof. Each such
certificate shall include the statements provided for in Section 13.06, if and
to the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal counsel, who may
be an employee of or counsel for the Company that is delivered to the Trustee in
accordance with the terms hereof. Each such opinion shall include the
statements provided for in Section 13.06, if and to the extent required by the
provisions thereof.
"Outstanding", when used with reference to Securities of any series, means,
subject to the provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered by the Trustee
under this Indenture, except (a) Securities theretofore canceled by the Trustee
or any paying agent, or delivered to the Trustee or any paying agent for
3
cancellation or that have previously been canceled; (b) Securities or portions
thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own paying agent); provided, however, that if such Securities or portions of
-------- -------
such Securities are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article Three provided, or provision
satisfactory to the Trustee shall have been made for giving such notice; and (c)
Securities in lieu of or in substitution for which other Securities shall have
been authenticated and delivered pursuant to the terms of Section 2.07.
"Person" means any individual, corporation, partnership, joint venture,
joint-stock company, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Responsible Officer" means any officer within the Corporate Trust Office
including any Vice President, Assistant Vice President, Senior Trust Officer,
Assistant Trust Officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge and familiarity
with the particular subject.
"Securities" means the debt Securities authenticated and delivered under
this Indenture.
"Securityholder", "holder of Securities", "registered holder", or other
similar term, means the Person or Persons in whose name or names a particular
Security shall be registered on the books of the Company kept for that purpose
in accordance with the terms of this Indenture.
"Subsidiary" means (a) a corporation a majority of whose Capital Stock with
voting power, under ordinary circumstances, to elect directors is at the time
directly or indirectly owned by the Company or by the Company and a Subsidiary
or Subsidiaries of the Company or by a Subsidiary or Subsidiaries of the Company
or (b) any other Person (other than a corporation) in which the Company or the
Company and a Subsidiary or Subsidiaries of the Company or a Subsidiary or
Subsidiaries of the Company directly or indirectly at the date of determination
thereof has at least a majority ownership interest.
"Trustee" means _____________________________ , and, subject to the
provisions of Article Seven, shall also include its successors and assigns, and,
if at any time there is more than one Person acting in such capacity hereunder,
"Trustee" shall mean each such Person. The term "Trustee" as used with respect
to a particular series of the Securities shall mean the trustee with respect to
that series.
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"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as
in effect at the date of execution of this instrument subject to the provisions
of Sections 9.01, 9.02, and 10.01.
ARTICLE II.
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section 2.01 Designation and Terms of Securities.
-----------------------------------
(a) The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series up to the aggregate principal amount of
Securities of that series from time to time authorized by or pursuant to a Board
Resolution of the Company or pursuant to one or more indentures supplemental
hereto. Prior to the initial issuance of Securities of any series, there shall
be established in or pursuant to a Board Resolution of the Company, and set
forth in an Officers' Certificate of the Company, or established in one or more
indentures supplemental hereto:
(1) the title of the Security of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of that series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of that
series);
(3) the date or dates on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest or the manner of calculation of such rate or rates, if any;
(5) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the manner of
determination of such Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on any such Interest
Payment Dates;
(6) the right, if any, to extend the interest payment periods
and the duration of such extension;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions
(including payments made in cash in participation of future sinking fund
obligations) or at the option of a holder thereof and
5
the period or periods within which, the price or prices at which, and the terms
and conditions upon which, Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) the subordination terms of the Securities of the series;
(10) the form of the Securities of the series including the form
of the Trustee's certificate of authentication for such series;
(11) if other than denominations of One Thousand U.S. Dollars
($1,000) or any integral multiple thereof, the denominations in which the
Securities of the series shall be issuable;
(12) any and all other terms with respect to such series,
including any terms which may be required by or advisable under United States
laws or regulations or advisable in connection with the marketing of Securities
of that series;
(13) whether the Securities are issuable as a Global Security
and, in such case, the identity for the Depositary for such series;
(14) whether the Securities will be convertible into shares of
common stock or other securities of the Company and, if so, the terms and
conditions upon which such Securities will be so convertible, including the
conversion price and the conversion period;
(15) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(16) any additional or different Events of Default or restrictive
covenants provided for with respect to the Securities of the series;
(17) any provisions granting special rights to holders when a
specified event occurs;
(18) any special tax implications of the Securities, including
provisions for original issue discount securities, if offered; and
(19) whether and upon what terms Securities of a series may be
defeased if different from the provisions set forth in this Indenture.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to any such Board Resolution or in any indentures supplemental hereto. If any
of the terms of the series are established by action taken pursuant to a Board
Resolution of the Company, 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 of the Company setting forth the terms of the series.
6
Securities of any particular series may be issued at various times, with
different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different redemption dates.
Section 2.02 Form of Securities and Trustee's Certificate.
--------------------------------------------
The Securities of any series and the Trustee's certificate of
authentication to be borne by such Securities shall be substantially of the
tenor and purport as set forth in one or more indentures supplemental hereto or
as provided in a Board Resolution of the Company and as set forth in an
Officers' Certificate of the Company and may have such letters, numbers or other
marks of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which Securities of that series
may be listed, or to conform to usage.
Section 2.03 Denominations: Provisions for Payment.
--------------------------------------
The Securities shall be issuable as registered Securities and in the
denominations of One Thousand U.S. Dollars ($1,000) or any integral multiple
thereof, subject to Section 2.01(10). The Securities of a particular series
shall bear interest payable on the dates and at the rate specified as provided
in Section 2.01 with respect to that series. The principal of and the interest
on the Securities of any series, as well as any premium thereon in case of
redemption thereof prior to maturity, shall be payable in the coin or currency
of the United States of America that at the time is legal tender for public and
private debt, at the office or agency of the Company maintained for that purpose
in the Borough of Manhattan, the City and State of New York. Each Security shall
be dated the date of its authentication. Unless otherwise specified with respect
to a series of Securities in accordance with the provisions of Section 2.01,
interest on the Securities shall be computed on the basis of a 360-day year
composed of twelve 30-day months.
The interest installment on any Security that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date for Securities of that
series shall be paid to the Person in whose name said Security (or one or more
Predecessor Securities) is registered at the close of business on the regular
record date for such interest installment. In the event that any Security of a
particular series or portion thereof is called for redemption and the redemption
date is subsequent to a regular record date with respect to any Interest Payment
Date and prior to such Interest Payment Date, interest on such Security will be
paid upon presentation and surrender of such Security as provided in Section
3.03.
Unless otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 2.01, any interest on any Security
that is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date for Securities of the same series (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered
holder on the relevant regular record date and such Defaulted Interest shall be
paid by the Company, at its election, as provided in clause (1) or clause (2)
below.
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(1) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of business
on a special record date for the payment of such Defaulted Interest, which
shall be fixed in the following manner: the Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each such Security and the date of the proposed payment, and 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 (1) provided. Thereupon the
Trustee shall fix a special record date for the payment of such Defaulted
Interest which shall not be more than 15 nor less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the special record date therefor to
be mailed, first class postage prepaid, to each Securityholder at his or
her address as it appears in the Security Register (as hereinafter
defined), not less than 10 days prior to such special record date. Notice
of the proposed payment of such Defaulted Interest and the special record
date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered on such special record
date and shall not be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange.
Unless otherwise set forth in a Board Resolution of the Company or one or
more indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term "regular record date" as
used in this Section with respect to a series of Securities with respect to any
Interest Payment Date for such series shall mean either the fifteenth day of the
month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date is the first day of a month, or the last day of the month
immediately preceding the month in which an Interest Payment Date established
for such series pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the fifteenth day of a month, whether or not such date is a
Business Day. Subject to the foregoing provisions of this Section, each Security
of a series delivered under this Indenture upon transfer of or in exchange for
or in lieu of any other Security of such series shall carry the rights to
interest accrued and unpaid, and to accrue, that were carried by such other
Security.
8
Section 2.04 Execution and Authentications.
-----------------------------
The Securities shall be signed on behalf of the Company by two Officers.
Signatures may be in the form of a manual or facsimile signature. The Company
may use the facsimile signature of any Person who shall have been an Officer,
notwithstanding the fact that at the time the Securities shall be authenticated
and delivered or disposed of such Person shall have ceased to be an Officer of
the Company. The Securities may contain such notations, legends or endorsements
required by law, stock exchange rule or usage. Each Security shall be dated the
date of its authentication by the Trustee.
A Security shall not be valid until authenticated manually by an authorized
signatory of the Trustee or by an Authenticating Agent. Such signature shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture. At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and delivery of such
Securities, signed by an Officer, and the Trustee in accordance with such
written order shall authenticate and deliver such Securities.
Section 2.05 Registration of Transfer and Exchange.
-------------------------------------
(a) Securities of any series may be exchanged upon presentation
thereof at the office or agency of the Company designated for such purpose in
the Borough of Manhattan, the City and State of New York, for other Securities
of such series of authorized denominations, and for a like aggregate principal
amount, upon payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, all as provided in this Section 2.05. In respect of
any Securities so surrendered for exchange, the Company shall execute, the
Trustee shall authenticate and such office or agency shall deliver in exchange
therefor the Security or Securities of the same series that the Securityholder
making the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose in the Borough of Manhattan, the City and
State of New York, or such other location designated by the Company a register
or registers (herein referred to as the "Security Register") in which, subject
-----------------
to such reasonable regulations as it may prescribe, the Company shall register
the Securities and the transfers of Securities as in this Article II provided
and which at all reasonable times shall be open for inspection by the Trustee.
The registrar for the purpose of registering Securities and transfer of
Securities as herein provided shall be appointed as authorized by Board
Resolution (the "Security Registrar"). If the Company fails to appoint or
------------------
maintain another entity as Security Registrar, the Trustee shall act as such.
The Company or any of its Subsidiaries may act as Security Registrar.
Upon surrender for transfer of any Security at the office or agency of the
Company designated for such purpose, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Security or Securities of the same series as the
Security presented for a like aggregate principal amount.
9
All Securities presented or surrendered for exchange or registration of
transfer, as provided in this Section 2.05, shall be accompanied (if so required
by the Company or the Security Registrar) by a written instrument or instruments
of transfer, in form satisfactory to the Company or the Security Registrar, duly
executed by the registered holder or by such holder's duly authorized attorney
in writing.
(c) No service charge shall be made for any exchange or registration
of transfer of Securities, or issue of new Securities in case of partial
redemption of any series, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in relation thereto,
other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04
not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Securities during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
less than all the Outstanding Securities of the same series and ending at the
close of business on the day of such mailing, nor (ii) to register the transfer
of or exchange any Securities of any series or portions thereof called for
redemption. The provisions of this Section 2.05 are, with respect to any Global
Security, subject to Section 2.11 hereof.
Section 2.06 Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the Company
may execute, and the Trustee shall authenticate and deliver, temporary
Securities (printed, lithographed or typewritten) of any authorized
denomination. Such temporary Securities shall be substantially in the form of
the definitive Securities in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every temporary Security
of any series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities of such series. Without unnecessary
delay the Company will execute and will furnish definitive Securities of such
series and thereupon any or all temporary Securities of such series may be
surrendered in exchange therefor (without charge to the holders), at the office
or agency of the Company designated for the purpose in the Borough of Manhattan,
the City and State of New York, and the Trustee shall authenticate and such
office or agency shall deliver in exchange for such temporary Securities an
equal aggregate principal amount of definitive Securities of such series, unless
the Company advises the Trustee to the effect that definitive Securities need
not be executed and furnished until further notice from the Company. Until so
exchanged, the temporary Securities of such series shall be entitled to the same
benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder.
Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
----------------------------------------------
In case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company (subject to the next succeeding sentence)
shall execute, and upon the Company's request the Trustee (subject to the next
succeeding sentence) shall authenticate and deliver, a new Security of the same
series, bearing a number not contemporaneously outstanding,
10
in exchange and substitution for the mutilated Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen. In every case the
applicant for a substituted Security shall furnish to the Company and the
Trustee such security or indemnity as may be required by them to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Company and the Trustee evidence to their satisfaction
of the destruction, loss or theft of the applicant's Security and of the
ownership thereof. The Trustee may authenticate any such substituted Security
and deliver the same upon the written request or authorization of any Officer.
Upon the issuance of any substituted Security, 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 Trustee) connected therewith. In case any Security that has
matured or is about to mature shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may require to save
them harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft of
such Security and of the ownership thereof.
Every replacement Security issued pursuant to the provisions of this
Section 2.07 shall constitute an additional contractual obligation of the
Company whether or not the mutilated, destroyed, lost or stolen Security shall
be found at any time, or be enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of the same series duly issued hereunder. All Securities shall
be held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities, and shall preclude (to the extent lawful) any and all
other rights or remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
Section 2.08 Cancellation.
------------
All Securities surrendered for the purpose of payment, redemption, exchange
or registration of transfer shall, if surrendered to the Company or any paying
agent, be delivered to the Trustee for cancellation, or, if surrendered to the
Trustee, shall be cancelled by it, and no Securities shall be issued in lieu
thereof except as expressly required or permitted by any of the provisions of
this Indenture. On written request of the Company at the time of such surrender,
the Trustee shall deliver to the Company canceled Securities held by the
Trustee. In the absence of such request the Trustee may dispose of canceled
Securities in accordance with its standard procedures and deliver a certificate
of disposition to the Company. If the Company shall otherwise acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
Section 2.09 Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied, shall
give or be construed to give to any Person, other than the parties hereto and
the holders of the Securities
11
(and the holders of unsubordinated indebtedness of the Company to the extent
necessary to give effect to the subordination provisions referred to in Article
XIV) any legal or equitable right, remedy or claim under or in respect of this
Indenture, or under any covenant, condition or provision herein contained; all
such covenants, conditions and provisions being for the sole benefit of the
parties hereto and of the holders of the Securities (and the holders of
unsubordinated indebtedness of the Company to the extent necessary to give
effect to the subordination provisions referred to in Article XIV).
Section 2.10 Authenticating Agent.
--------------------
So long as any of the Securities of any series remain Outstanding
there may be an Authenticating Agent for any or all such series of Securities
which the Trustee shall have the right to appoint. Said Authenticating Agent
shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series, including Securities issued upon exchange, transfer or partial
redemption thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. All references in this Indenture to
the authentication of Securities by the Trustee shall be deemed to include
authentication by an Authenticating Agent for such series. Each Authenticating
Agent shall be acceptable to the Company and shall be a corporation that has a
combined capital and surplus, as most recently reported or determined by it,
sufficient under the laws of any jurisdiction under which it is organized or in
which it is doing business to conduct a trust business, and that is otherwise
authorized under such laws to conduct such business and is subject to
supervision or examination by Federal or State authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with these
provisions, it shall resign immediately. Any Authenticating Agent may at any
time resign by giving written notice of resignation to the Trustee and to the
Company. The Trustee may at any time (and upon request by the Company shall)
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon resignation,
termination or cessation of eligibility of any Authenticating Agent, the Trustee
may appoint an eligible successor Authenticating Agent acceptable to the
Company. Any successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of its
predecessor hereunder as if originally named as an Authenticating Agent pursuant
hereto.
Section 2.11 Global Securities.
-----------------
(a) If the Company shall establish pursuant to Section 2.01 that the
Securities of a particular series are to be issued as a Global Security, then
the Company shall execute and the Trustee shall, in accordance with Section
2.04, authenticate, a Global Security that (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, all of the
Outstanding Securities of such series, (ii) shall be registered in the name of
the Depositary or its nominee, (iii) shall be delivered to the Trustee as
custodian for the Depositary or otherwise delivered pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the following effect:
"Except as otherwise provided in Section 2.11 of the Indenture, this Security
may be transferred, in whole but not in part, only to another nominee of the
Depositary or to a successor Depositary or to a nominee of such successor
Depositary."
12
(b) Notwithstanding the provisions of Section 2.05, the Global
Security of a series may be transferred, in whole but not in part and in the
manner provided in Section 2.05, only to another nominee of the Depositary for
such series, or to a successor Depositary for such series selected or approved
by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer
be registered or in good standing under the Exchange Act, or other applicable
statute or regulation, and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, this Section 2.11 shall
no longer be applicable to the Securities of such series and the Company will
execute, and subject to Section 2.05, the Trustee will authenticate and deliver
the Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Security. In addition, the Company may at any time determine that the
Securities of any series shall no longer be represented by a Global Security and
that the provisions of this Section 2.11 shall no longer apply to the Securities
of such series. In such event the Company will execute and subject to Section
2.05, the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver the Securities of
such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security. Upon the exchange of the Global Security of such series for such
Securities of such series in definitive registered form without coupons, in
authorized denominations, the Global Security shall be canceled by the Trustee.
Such Securities of such series in definitive registered form issued in exchange
for the Global Security pursuant to this Section 2.11(c) shall be registered in
such names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the
Depositary for delivery to the Persons in whose names such Securities are so
registered.
Section 2.12 CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Securityholders; provided that any such notice
--------
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
13
ARTICLE III.
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption.
----------
The Company may redeem the Securities of any series issued hereunder on and
after the dates and in accordance with the terms established for such series
pursuant to Section 2.01 hereof.
Section 3.02 Notice of Redemption.
--------------------
(a) If the Company desires to exercise such right to redeem all or, as the
case may be, a portion of the Securities of any series, the Company shall, or
shall cause the Trustee to, give notice of such redemption to holders of the
Securities of such series to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days and not more than 90
days before the date fixed for redemption of that series to such holders at
their last addresses as they shall appear upon the Security Register (unless a
shorter period is specified in the Securities to be redeemed). Any notice that
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the registered holder receives the notice. In
any case, failure duly to give such notice to the holder of any Security of any
series designated for redemption in whole or in part, or any defect in the
notice, shall not affect the validity of the proceedings for the redemption of
any other Securities of such series or any other series. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for redemption
and the redemption price at which Securities of that series are to be redeemed,
and shall state that payment of the redemption price of such Securities to be
redeemed will be made at the office or agency of the Company in the Borough of
Manhattan, the City and State of New York, upon presentation and surrender of
such Securities, that interest accrued to the date fixed for redemption will be
paid as specified in said notice, that from and after said date interest will
cease to accrue and that the redemption is for a sinking fund, if such is the
case. If less than all the Securities of a series are to be redeemed, the
notice to the holders of Securities of that series to be redeemed in whole or in
part shall specify the particular Securities to be so redeemed. In case any
Security is to be redeemed in part only, the notice that relates to such
Security shall state the portion of the principal amount thereof to be redeemed,
and shall state that on and after the redemption date, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
(b) If less than all the Securities of a series are to be redeemed, the
Company shall give the Trustee at least 45 days' notice in advance of the date
fixed for redemption as to the aggregate principal amount of Securities of the
series to be redeemed, and thereupon the Trustee shall select from Securities of
such series Outstanding not previously called for redemption, in accordance with
a method that it shall deem appropriate and fair (in such manner as complies
14
with applicable legal and stock exchange requirements, if any) and that may
provide for the selection of a portion or portions (equal to One Thousand U.S.
Dollars ($1,000) or any integral multiple thereof) of the principal amount of
such Securities of such series of a denomination larger than $1,000, the
Securities of such series to be redeemed and shall thereafter promptly notify
the Company in writing of the numbers of the Securities of such series to be
redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by any of its Officers, instruct the Trustee
or any paying agent to call all or any part of the Securities of a particular
series for redemption and to give notice of redemption in the manner set forth
in this Section 3.02, such notice to be in the name of the Company or its own
name, as the Trustee or such paying agent may deem advisable. In any case in
which notice of redemption is to be given by the Trustee or any such paying
agent, the Company shall deliver or cause to be delivered to, or permit to
remain with, the Trustee or such paying agent, as the case may be, such Security
Register, transfer books or other records, or suitable copies or extracts
therefrom, sufficient to enable the Trustee or such paying agent to give any
notice by mail that may be required under the provisions of this Section 3.02.
Section 3.03 Payment Upon Redemption.
-----------------------
(a) If the giving of notice of redemption shall have been completed as
above provided, the Securities or portions of Securities of the series to be
redeemed specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, in each case as
established pursuant to Section 2.01, and interest on such Securities or
portions of Securities shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such redemption
price and accrued interest with respect to any such Security or portion thereof.
On presentation and surrender of such Securities on or after the date fixed for
redemption at the place of payment specified in the notice, said Securities
shall be paid and redeemed at the applicable redemption price for such series,
together with interest accrued thereon to the date fixed for redemption (but if
the date fixed for redemption is an interest payment date, the interest
installment payable on such date shall be payable to the registered holder at
the close of business on the applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Security of such series that is to be
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall
deliver to the holder thereof, at the expense of the Company, a new Security of
the same series of authorized denominations in principal amount equal to the
unredeemed portion of the Security so presented.
Section 3.04 Sinking Fund.
------------
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any
sinking fund for the retirement of Securities of a series, except as otherwise
specified as contemplated by Section 2.01 for Securities of such series.
15
The minimum amount of any sinking fund payment provided for by the terms of
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 Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series.
Section 3.05 Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (i) may deliver Outstanding Securities of a series (other than
any Securities previously called for redemption) and (ii) may apply as a credit
Securities of a series that have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities, provided that such Securities have not
been previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the redemption price specified in such Securities
for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of the series, the portion thereof, if any,
that is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 3.05 and the basis for such credit and will, together with
such Officers' Certificate, deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 3.02 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 3.02. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Section 3.03.
ARTICLE IV.
CERTAIN COVENANTS
Section 4.01 Payment of Principal, Premium and Interest.
------------------------------------------
The Company will duly and punctually pay or cause to be paid the principal
of (and premium, if any) and interest on the Securities of a series at the time
and place and in the manner provided herein and established with respect to such
Securities.
16
Section 4.02 Maintenance of Office or Agency.
-------------------------------
So long as any series of the Securities remain Outstanding, the Company
agrees to maintain an office or agency in the Borough of Manhattan, the City and
State of New York, with respect to each such series and at such other location
or locations as may be designated as provided in this Section 4.02, where (i)
Securities of that series may be presented for payment, (ii) Securities of that
series may be presented as herein authorized for registration of transfer and
exchange, and (iii) notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be given or served, such
designation to continue with respect to such office or agency until the Company
shall, by written notice signed by any Officer and delivered to the Trustee,
designate some other office or agency for such purposes or any of them. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, notices and demands.
Section 4.03 Paying Agents.
-------------
(a) The Company may appoint one or more paying agents for all or any
series of the Securities, other than the Trustee. If the Company fails to
appoint or maintain another entity as paying agent, the Trustee shall act as
such. The Company or any of its Subsidiaries may act as paying agent.
(b) The Company shall require each paying agent other than the Trustee to
agree in writing that the paying agent will hold in trust for the benefit of
Securityholders or the Trustee all money held by the paying agent for the
payment of principal or interest on the Securities, and will promptly notify the
Trustee in writing of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a paying agent to pay
all money held by it to the Trustee. The Company at any time may require a
paying agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the paying agent (if other than the Company or a Subsidiary) shall
have no further liability for the money. If the Company or a Subsidiary acts as
paying agent, it shall segregate and hold in a separate trust fund for the
benefit of the Securityholders all money held by it as paying agent.
(c) Notwithstanding anything in this Section to the contrary, (i) the
agreement to hold sums in trust as provided in this Section 4.03 is subject to
the provisions of Section 11.05, and (ii) the Company may at any time, for the
purpose of obtaining the satisfaction and discharge or defeasance of this
Indenture or for any other purpose, pay, or direct any paying agent to pay, to
the Trustee all sums held in trust by the Company or such paying agent, such
sums to be held by the Trustee upon the same terms and conditions as those upon
which such sums were held by the Company or such paying agent; and, upon such
payment by any paying agent to the Trustee, such paying agent shall be released
from all further liability with respect to such money.
Section 4.04 Compliance with Laws, Taxes.
---------------------------
The Company shall, and shall cause each of its Subsidiaries to, comply with
all statutes, laws, ordinances, or government rules and regulations to which it
is subject, noncompliance with
17
which would materially adversely affect the business, earnings, properties,
assets or financial condition of the Company and its Subsidiaries taken as a
whole. The Company shall, and shall cause each of its Subsidiaries to, pay prior
to delinquency all taxes, assessments, and governmental levies except as
contested in good faith and by appropriate proceedings.
Section 4.05 Corporate Existence.
-------------------
Subject to Article Ten hereof, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence in accordance with its organizational documents.
Section 4.06 Statement by Officers as to Default.
-----------------------------------
The Company, so long as any Securities are Outstanding, will deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company ending
after the date hereof, an Officers' Certificate signed by its principal
executive officer, principal financial officer or principal accounting officer
stating whether or not to the best knowledge of the signer thereof the Company
is in default in the performance and observance of any of the terms, provisions
and conditions of this Indenture, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
The Company, so long as any Securities are Outstanding, shall promptly
deliver to the Trustee, forthwith upon any Officer becoming aware of the
occurrence of any Event of Default or an event which, with notice or the lapse
of time or both, would constitute an Event of Default, an Officers' Certificate
specifying such Event of Default or Default and the action which the Company
proposes to make with respect thereto.
Section 4.07 Waiver of Certain Covenants
---------------------------
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 4.04 and 4.05 with respect to the
Securities of any series if before or after the time for such compliance the
Securityholders of at least a majority in principal amount of all Outstanding
Securities of such series, by act of such Securityholders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
Section 4.08 Appointment to Fill Vacancy in Office of Trustee.
------------------------------------------------
The Company, whenever necessary to avoid or to fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall be at all times a Trustee hereunder.
18
ARTICLE V.
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01 Company to Furnish Trustee Names and Addresses of Securityholders.
-----------------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee (a) semi-
annually at least seven Business Days before each Interest Payment Date for a
series of Securities (and in all events at intervals of not more than six
months) a list, in such form as the Trustee may reasonably require, of the names
and addresses of the holders of each series of Securities as of such date,
provided that the Company shall not be obligated to furnish or cause to furnish
--------
such list at any time that the list shall not differ in any respect from the
most recent list furnished to the Trustee by the Company and (b) at such other
times as the Trustee may request in writing within 30 days after the receipt by
the Company of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished; provided,
--------
however, that, in either case, no such list need be furnished for any series for
-------
which the Trustee shall be the Security Registrar.
Section 5.02 Preservation of Information; Communications with Securityholders.
----------------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of
Securities contained in the most recent list furnished to it as provided in
Section 5.01 and as to the names and addresses of holders of Securities received
by the Trustee in its capacity as Security Registrar (if acting in such
capacity).
(b) Securityholders may communicate as provided in Section 312(b) of the
Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Securities.
Section 5.03 Reports by the Company.
----------------------
(a) The Company covenants and agrees to file with the Trustee, within 15
days after the Company is required to file with the Commission, copies of the
annual reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) that the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or,
if the Company is not required to file information, documents or reports
pursuant to either such Sections, then to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports that may be required pursuant to Section 13 of the
Exchange Act, in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission,
19
such additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants provided for in this Indenture as
may be required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable overnight delivery service that provides for
evidence of receipt, to the Securityholders, as their names and addresses appear
upon the Security Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to the subsections (a) and (b) of this Section
5.03 as may be required by rules and regulations prescribed from time to time by
the Commission.
(d) Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 5.04 Reports by the Trustee.
----------------------
(a) Within 60 days after each August 15 beginning with the August 15
following the date of this Indenture, the Trustee shall transmit by mail, first
class postage prepaid, to the Securityholders, as their names and addresses
appear upon the Security Register, a brief report dated as of the fifteenth day
before the end of such fiscal year, if and to the extent required under Section
313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of the Trust
Indenture Act.
(c) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with the Company, with each stock
exchange upon which any Securities are listed (if so listed) and also with the
Commission. The Company agrees to notify the Trustee when any Securities become
listed on any stock exchange or delisted therefrom.
ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01 Events of Default.
-----------------
(a) Whenever used herein with respect to Securities of a particular
series, "Event of Default" means any one or more of the following events that
has occurred and is continuing:
(1) the Company defaults in the payment of any installment of
interest upon any of the Securities of that series, as and when the same shall
become due and payable, and continuance of such default for a period of 90 days;
provided, however, that a valid extension of
-------- -------
20
an interest payment period by the Company in accordance with the terms of any
indenture supplemental hereto shall not constitute a default in the payment of
interest for this purpose;
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any of the Securities of that series as and when the same
shall become due and payable whether at maturity, upon redemption, by
declaration or otherwise, or in any payment required by any sinking or analogous
fund established with respect to that series; provided, however, that a valid
-------- -------
extension of the maturity of such Securities in accordance with the terms of any
indenture supplemental hereto shall not constitute a default in the payment of
principal or premium, if any;
(3) the Company fails to observe or perform any other of its
covenants or agreements with respect to that series contained in this Indenture
or otherwise established with respect to that series of Securities pursuant to
Section 2.01 hereof (other than a covenant or agreement that has been expressly
included in this Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 90 days after the date on
which written notice of such failure, requiring the same to be remedied and
stating that such notice is a "Notice of Default" hereunder, shall have been
-----------------
given to the Company by the Trustee, by registered or certified mail, or to the
Company and the Trustee by the holders of at least 25% in principal amount of
the Securities of that series at the time Outstanding;
(4) the Company pursuant to or within the meaning of any Bankruptcy
Law (i) commences a voluntary case, (ii) consents to the entry of an order for
relief against it in an involuntary case, (iii) consents to the appointment of a
Custodian of it or for all or substantially all of its property or (iv) makes a
general assignment for the benefit of its creditors; or
(5) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company for all or substantially all of
the Company's properties, or (iii) orders the liquidation of the Company, and,
in either of the above cases, the order or decree remains unstayed and in effect
for 90 days.
(b) In each and every such case, unless the principal of all the
Securities of that series shall have already become due and payable, either the
Trustee or the holders of not less than 25% in aggregate principal amount of the
Securities of that series then Outstanding hereunder, by notice in writing to
the Company (and to the Trustee if given by such Securityholders), may declare
the unpaid principal of all the Securities of that series to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, notwithstanding anything contained in this
Indenture or in the Securities of that series or established with respect to
that series pursuant to Section 2.01 to the contrary.
(c) At any time after the principal of the Securities of that series shall
have been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the holders of a majority in aggregate principal amount of the
Securities of that series then Outstanding hereunder, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if: (i) the Company has paid or deposited with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Securities
of that series and the principal of (and
21
premium, if any, on) any and all Securities of that series that shall have
become due otherwise than by acceleration (with interest upon such principal and
premium, if any, and, to the extent that such payment is enforceable under
applicable law, upon overdue installments of interest, at the rate per annum
expressed in the Securities of that series to the date of such payment or
deposit), and (ii) any and all Events of Default under the Indenture with
respect to such series, other than the nonpayment of principal on Securities of
that series that shall not have become due by their terms, shall have been
remedied or waived as provided in Section 6.06.
No such rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with
respect to Securities of that series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined adversely to the
Trustee, then and in every such case the Company and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee shall continue as
though no such proceedings had been taken.
Section 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
(a) The Company covenants that (1) in case it shall default in the payment
of any installment of interest on any of the Securities of a series, or any
payment required by any sinking or analogous fund established with respect to
that series as and when the same shall have become due and payable, and such
default shall have continued for a period of 90 Business Days, or (2) in case it
shall default in the payment of the principal of (or premium, if any, on) any of
the Securities of a series when the same shall have become due and payable,
whether upon maturity of the Securities of a series or upon redemption or upon
declaration or otherwise, then, upon demand of the Trustee, the Company will pay
to the Trustee, for the benefit of the holders of the Securities of that series,
the whole amount that then shall have been become due and payable on all such
Securities for principal (and premium, if any) or interest, or both, as the case
may be, with interest upon the overdue principal (and premium, if any) and (to
the extent that payment of such interest is enforceable under applicable law)
upon overdue installments of interest at the rate per annum expressed in the
Securities of that series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, and the
amount payable to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of the
Company, wherever situated.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial proceedings
affected the Company, or its
22
creditors or property, the Trustee shall have power to intervene in such
proceedings and take any action therein that may be permitted by the court and
shall (except as may be otherwise provided by law) be entitled to file such
proofs of claim and other papers and documents as may be necessary or advisable
in order to have the claims of the Trustee and of the holders of Securities of
such series allowed for the entire amount due and payable by the Company under
the Indenture at the date of institution of such proceedings and for any
additional amount that may become due and payable by the Company after such
date, and to collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same in accordance with
Section 6.03 hereof; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of Securities of such
series to make such payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to such Securityholders,
to pay to the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this Indenture, or
under any of the terms established with respect to Securities of that series,
may be enforced by the Trustee without the possession of any of such Securities,
or the production thereof at any trial or other proceeding relative thereto, and
any such suit or proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall,
after provision for payment to the Trustee of any amounts due under Section
7.06, be for the ratable benefit of the holders of the Securities of such
series.
In case of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in the Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of that series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
Section 6.03 Application of Moneys Collected.
-------------------------------
Any moneys collected by the Trustee pursuant to this Article VI with
respect to a particular series of Securities shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, upon presentation of the Securities of that series, and notation
thereon the payment, if only partially paid, and upon surrender thereof if fully
paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.06;
23
SECOND: To the payment of all unsubordinated indebtedness of the Company
if and to the extent required to give effect to the subordination provisions
referred to in Article XIV;
THIRD: To the payment of the amounts then due and unpaid upon Securities
of such series for principal (and premium, if any) and interest, in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal (and premium, if any) and interest,
respectively; and
FOURTH: To the Company.
Section 6.04 Limitation on Suits.
-------------------
No holder of any Security of any series shall have any right by virtue or
by availing himself or herself of any provision of this Indenture to institute
any suit, action or proceeding in equity or at law upon or under or with respect
to this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless (i) such holder previously shall have given to
the Trustee written notice of an Event of Default and of the continuance thereof
with respect to the Securities of such series specifying such Event of Default,
as hereinbefore provided; (ii) the holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as trustee hereunder; (iii) such holder or holders
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby;
(iv) the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity, shall have failed to institute any such action, suit or
proceeding; and (v) during such 60 day period, the holders of a majority in
principal amount of the Securities of that series do not give the Trustee a
direction inconsistent with the request.
Notwithstanding anything contained herein to the contrary, any other
provisions of this Indenture, the right of any holder of any Security to receive
payment of the principal of (and premium, if any) and interest on such Security,
as therein provided, on or after the respective due dates expressed in such
Security (or in the case of redemption, on the redemption date), or to institute
suit for the enforcement of any such payment on or after such respective dates
or redemption date, shall not be impaired or affected without the consent of
such holder and by accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security of such series
with every other such taker and holder and the Trustee, that no one or more
holders of Securities of such series shall have any right in any manner
whatsoever by virtue or by availing himself or herself of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders of any other
of such Securities, or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and common benefit of
all holders of Securities of such series. For the protection and enforcement of
the provisions of this Section 6.04, each and every Securityholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
24
Section 6.05 Rights and Remedies Cumulative; Delay or Omission not Waiver.
------------------------------------------------------------
(a) Except as otherwise provided in Section 2.07, all powers and remedies
given by this Article VI to the Trustee or to the Securityholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any other
powers and remedies available to the Trustee or the holders of the Securities,
by judicial proceedings or otherwise, to enforce the performance or observance
of the covenants and agreements contained in this Indenture or otherwise
established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of any of the
Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or on acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article VI or by law to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
Section 6.06 Control by Securityholders.
--------------------------
The holders of a majority in aggregate principal amount of the Securities
of any series at the time Outstanding, determined in accordance with Section
8.04, shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to such series; provided,
--------
however, that such direction shall not be in conflict with any rule of law or
-------
with this Indenture or be unduly prejudicial to the rights of holders of
Securities of any other series at the time Outstanding determined in accordance
with Section 8.04. Subject to the provisions of Section 7.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Responsible Officers of the Trustee,
determine that the proceeding so directed would involve the Trustee in personal
liability. The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding affected thereby, determined in
accordance with Section 8.04, may on behalf of the holders of all of the
Securities of such series waive any past default in the performance of any of
the covenants contained herein or established pursuant to Section 2.01 with
respect to such series and its consequences, except a default in the payment of
the principal of, or premium, if any, or interest on, any of the Securities of
that series as and when the same shall become due by the terms of such
Securities otherwise than by acceleration (unless such default has been cured
and a sum sufficient to pay all matured installments of interest and principal
and any premium has been deposited with the Trustee (in accordance with Section
6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to
be cured for all purposes of this Indenture and the Company, the Trustee and the
holders of the Securities of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
Section 6.07 Undertaking to Pay Costs.
------------------------
All parties to this Indenture agree, and each holder of any Securities by
such holder's acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in
25
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 6.07
shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Securityholder, or group of Securityholders, holding more than 10% in
aggregate principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Securityholder for the enforcement of the payment of
the principal of (or premium, if any) or interest on any Security of such
series, on or after the respective due dates expressed in such Security or
established pursuant to this Indenture.
Section 6.08 Waiver Of Usury, Stay Or Extension Laws
---------------------------------------
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not, by resort to any such law, hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
ARTICLE VII.
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities of Trustee.
----------------------------------------------
(a) In case an Event of Default with respect to the Securities of a series
has occurred (that has not been cured or waived), the Trustee shall exercise
with respect to Securities of that series such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect to
the Securities of a series and after the curing or waiving of all such Events of
Default with respect to that series that may have occurred:
(i) the duties and obligations of the Trustee shall with
respect to the Securities of such series be determined solely by the
express provisions of this Indenture, and the Trustee shall not be
liable with respect to the Securities of such series except for the
performance of such duties and obligations as are specifically
26
set forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may with respect to the Securities of such series
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical computations or other facts
stated therein);
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the holders of not less than a majority in principal amount of the Securities of
any series at the time Outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Indenture with respect
to the Securities of that series; and
(4) none of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or liability is not reasonably assured to it under
the terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
Section 7.02 Certain Rights of Trustee.
-------------------------
Except as otherwise provided in Section 7.01:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
security or other paper or document (whether in its original or facsimile form)
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Board Resolution or an instrument
signed in the name of the Company by an Officer (unless other evidence in
respect thereof is specifically prescribed herein);
27
(c) the Trustee may consult with counsel of its own selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted hereunder in good faith and in reliance thereon;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders, pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee indemnity satisfactory to
it against the costs, expenses and liabilities that may be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken or omitted to be
taken by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security, or
other papers or documents, unless requested in writing so to do by the holders
of not less than a majority in principal amount of the Outstanding Securities of
the particular series affected thereby (determined as provided in Section 8.04);
provided, however, that if the payment within a reasonable time to the Trustee
-------- -------
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand;
(g) the Trustee shall not be deemed to have notice of any Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is received
by the Trustee at the Corporate Trust Office of the Trustee; and
(h) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 7.03 Trustee not Responsible for Recitals or Issuance or Securities.
--------------------------------------------------------------
(a) The recitals contained herein and in the Securities shall be taken as
the statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same.
(b) The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or application by the
Company of any of the Securities or of the proceeds of such Securities, or for
the use or application of any moneys paid over by the Trustee in accordance with
any provision of this Indenture or
28
established pursuant to Section 2.01, or for the use or application of any
moneys received by any paying agent other than the Trustee.
Section 7.04 May Hold Securities.
-------------------
The Trustee or any paying agent or Security Registrar, in its individual or
any other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not Trustee, paying agent or Security Registrar.
However, the Trustee is subject to Sections 7.09 and 7.13.
Section 7.05 Moneys Held in Trust.
--------------------
Subject to the provisions of Section 11.05, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon.
Section 7.06 Compensation and Reimbursement.
------------------------------
(a) The Company shall pay to the Trustee, and the Trustee shall be
entitled to be paid, such reasonable compensation (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust), as the Company and the Trustee may from time to time agree in writing,
for all services rendered by it in the execution of the trusts hereby created
and in the exercise and performance of any of the powers and duties hereunder of
the Trustee, and, except as otherwise expressly provided herein, the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses
and disbursements incurred or made by the Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all Persons not regularly in
its employ) except any such expense or disbursement as may arise from its own
negligence or bad faith. The Company shall also fully indemnify the Trustee (and
its officers, agents, directors and employees) for, and shall also hold it
harmless against, any and all loss, liability, claim, damage or expense incurred
without negligence or bad faith on the part of the Trustee and arising out of or
in connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim of liability.
(b) The obligations of the Company under this Section 7.06 to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses and
disbursements shall:(i) be secured by a lien prior to that of the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the holders of particular Securities; and
(ii) survive the termination of this Indenture and resignation or removal of the
Trustee.
Section 7.07 Reliance on Officers' Certificate.
---------------------------------
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting to take any action hereunder, such
29
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted to be taken by it under the
provisions of this Indenture upon the faith thereof.
Section 7.08 Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
Section 7.09 Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee with respect to the Securities issued
hereunder which shall at all times be a corporation organized and doing business
under the laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or other Person permitted to
act as trustee by the Commission, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least 50
Million U.S. Dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial, or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section 7.09, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The Company may not, nor
may any Person directly or indirectly controlling, controlled by, or under
common control with the Company, serve as Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 7.09, the Trustee shall resign immediately in the manner and with the
effect specified in Section 7.10.
Section 7.10 Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) The Trustee or any successor hereafter appointed may at any time
resign with respect to the Securities of one or more series by giving written
notice thereof to the Company and by transmitting notice of resignation by mail,
first class postage prepaid, to the Securityholders of such series, as their
names and addresses appear upon the Security Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee
with respect to Securities of such series. If no successor trustee shall have
been so appointed and have accepted appointment within 60 days after the
retiring Trustee resigns, the retiring Trustee, at the expense of the Company,
or the Company may petition any court of competent jurisdiction for the
appointment of a successor trustee with respect to Securities of such series, or
any Securityholder of that series who has been a bona fide holder of a Security
or Securities for at least six months may on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
30
(b) In case at any time any one of the following shall occur, the Company
may remove the Trustee with respect to all or any series of Securities and
appoint a successor trustee, or, unless the Trustee's duty to resign is stayed
as provided herein, any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months may, on behalf of that holder and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee:
(1) the Trustee shall fail to comply with the provisions of Section
7.08 after written request therefor by the Company or by any Securityholder who
has been a bona fide holder of a Security or Securities for at least six months;
or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented
to, or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation.
(c) The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to such series by so notifying the Trustee and the Company
and may appoint a successor Trustee for such series with the consent of the
Company.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities of a series pursuant to any of
the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section 7.10 may be
appointed with respect to the Securities of one or more series or all of such
series, and at any time there shall be only one Trustee with respect to the
Securities of any particular series.
Section 7.11 Acceptance of Appointment By Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor trustee with
respect to all Securities, every such successor trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor trustee all the rights, powers, and trusts of the retiring
31
Trustee and shall duly assign, transfer and deliver to such successor trustee
all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor trustee relates, (2)
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee and that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, and each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor trustee relates; but, on request of
the Company or any successor trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Company may execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section 7.11, as the case may be.
(d) No successor trustee shall accept its appointment unless at the time
of such acceptance such successor trustee shall be qualified and eligible under
this Article VII.
(e) Upon acceptance of appointment by a successor trustee as provided in
this Section 7.11, the successor trustee shall cause a notice of its succession
to be transmitted to Securityholders.
32
Section 7.12 Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the provisions of
Section 7.08 and eligible under the provisions of Section 7.09, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding. In case any
Securities shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 7.13 Preferential Collection of Claims Against the Company.
-----------------------------------------------------
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent included therein.
ARTICLE VIII.
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence of Action by Securityholders.
-------------------------------------
Whenever in this Indenture it is provided that the holders of a majority or
specified percentage in aggregate principal amount of the Securities of a
particular series may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the holders of such
majority or specified percentage of that series have joined therein may be
evidenced by any instrument or any number of instruments of similar tenor
executed by such holders of Securities of that series in Person or by agent or
proxy appointed in writing.
If the Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of Outstanding Securities of that series have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Outstanding Securities of that series
shall be computed as of the record date; provided, however,
-------- -------
33
that no such authorization, agreement or consent by such Securityholders on the
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date.
Section 8.02 Proof of Execution by Securityholders.
-------------------------------------
Subject to the provisions of Section 7.01, proof of the execution of any
instrument by a Securityholder (such proof will not require notarization) or his
agent or proxy and proof of the holding by any Person of any of the Securities
shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be proved by the Security Register
of such Securities or by a certificate of the Security Registrar thereof.
(c) The Trustee may require such additional proof of any matter referred
to in this Section as it shall deem necessary.
Section 8.03 Who May be Deemed Owners.
------------------------
Prior to the due presentment for registration of transfer of any Security,
the Company, the Trustee, any paying agent and any Security Registrar may deem
and treat the Person in whose name such Security shall be registered upon the
books of the Company as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notice of ownership or writing
thereon made by anyone other than the Security Registrar) for the purpose of
receiving payment of or on account of the principal of, premium, if any, and
(subject to Section 2.03) interest on such Security and for all other purposes;
and neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
Section 8.04 Certain Securities Owned by Company Disregarded.
-----------------------------------------------
In determining whether the holders of the requisite aggregate principal
amount of Securities of a particular series have concurred in any direction,
consent of waiver under this Indenture, the Securities of that series that are
owned by the Company or any other obligor on the Securities of that series or by
an Affiliate shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, consent
or waiver, only Securities of such series that a Responsible Officer of the
Trustee knows are so owned shall be so disregarded. The Securities so owned
that have been pledged in good faith may be regarded as Outstanding for the
purposes of this Section, if the pledgee shall establish to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not an Affiliate. 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.
34
Section 8.05 Actions Binding on Future Securityholders.
-----------------------------------------
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the holders of the
majority or percentage in aggregate principal amount of the Securities of a
particular series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the evidence to be
included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee, and upon proof of holding as
provided in Section 8.02, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security, and of any Security issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Security. Any action taken
by the holders of the majority or percentage in aggregate principal amount of
the Securities of a particular series specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the Trustee and
the holders of all the Securities of that series.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without the Consent of Securityholders.
---------------------------------------------------------------
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect), without the
consent of the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein or in the
Securities of any series, including making such changes as are required for this
Indenture to comply with the Trust Indenture Act;
(b) to comply with Article Ten;
(c) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
(d) to add to the covenants of the Company for the benefit of the holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the conditions, limitations, and
restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set forth;
35
(f) to make any change that does not adversely affect the rights of any
Securityholder in any material respect; or
(g) to provide for the issuance of and establish the form and terms and
conditions of the Securities of any series as provided in Section 2.01, to
establish the form of any certifications required to be furnished pursuant to
the terms of this Indenture or any series of Securities, or to add to the rights
of the holders of any series of Securities.
Upon the request of the Company, accompanied by Board Resolutions
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in Section 9.05 hereof, the Trustee
shall join with the Company in the execution of any such supplemental indenture,
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into any such
supplemental indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
9.01 may be executed by the Company and the Trustee without the consent of the
holders of any of the Securities at the time Outstanding, notwithstanding any of
the provisions of Section 9.02.
Section 9.02 Supplemental Indentures with Consent of Securityholders.
-------------------------------------------------------
With the consent (evidenced as provided in Section 8.01) of the holders of
not less than a majority in aggregate principal amount of the Securities of each
series affected by such supplemental indenture or indentures at the time
Outstanding, the Company, when authorized by Board Resolutions, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as then in effect) 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 not covered by
Section 9.01 the rights of the holders of the Securities of such series under
this Indenture; provided, however, that no such supplemental indenture shall,
-------- -------
without the consent of the holders of each Security then Outstanding and
affected thereby, (i) extend the fixed maturity of any Securities of any series,
reduce the principal amount thereof, reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable upon the redemption
thereof or (ii) reduce the aforesaid percentage of Securities, the holders of
which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders of any
series affected thereby under this Section 9.02 to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
Section 9.03 Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article IX or Section 10.01, this Indenture shall, with respect to such
series, be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the holders of Securities
of the series affected thereby shall thereafter be determined, exercised and
36
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 9.04 Securities Affected by Supplemental Indentures.
----------------------------------------------
Securities of any series affected by a supplemental indenture and
authenticated and delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, may bear a
notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture. If the Securities of the
Company shall so determine, new Securities of that series so modified as to
conform, in the opinion of the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Company, authenticated by the Trustee and delivered in
exchange for the Securities of that series then Outstanding.
Section 9.05 Execution of Supplemental Indentures.
------------------------------------
Upon the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and, if
applicable, upon the filing with the Trustee of evidence of the consent of
Securityholders required to consent thereto as aforesaid, the Trustee shall join
with the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion but shall not be obligated to enter into such supplemental indenture.
The Trustee, subject to the provisions of Section 7.01, may receive an Opinion
of Counsel as conclusive evidence that any supplemental indenture executed
pursuant to this Article IX is authorized or permitted by, and conforms to, the
terms of this Article IX and that it is proper for the Trustee under the
provisions of this Article IX to join in the execution thereof; provided,
--------
however, that such Opinion of Counsel need not be provided in connection with
-------
the execution of a supplemental indenture that establishes the terms of a series
of Securities pursuant to Section 2.01 hereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 9.05, the
Trustee shall transmit by mail, first class postage prepaid, a notice, setting
forth in general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
37
ARTICLE X.
SUCCESSOR CORPORATION
Section 10.01 Consolidation, Merger and Sale of Assets.
----------------------------------------
The Company, without the consent of any Securityholder, may consolidate
with, or merge into, or sell, transfer, lease or convey its assets substantially
as an entirety to any domestic corporation, provided that:
--------
(a) the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, transfer, lease
or conveyance shall have been made, is a corporation organized and existing
under the laws of the United States, any state thereof or the District of
Columbia;
(b) the corporation formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, lease, transfer
or conveyance shall have been made, assumes by supplemental indenture in a
form satisfactory to the Trustee all the obligations of the Company under
the Securities and this Indenture; and
(c) immediately before and after giving effect to the transaction, no
Event of Default and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
To the extent that a Board Resolution or supplemental indenture pertaining
to any series provides for different provisions relating to the subject matter
of this Article X, the provisions in such Board Resolution or supplemental
indenture shall govern for purposes of such series.
Section 10.02 Successor Corporation Substituted.
---------------------------------
Upon any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company or any
assignment of its obligations under this Indenture or the Securities of any
series in accordance with Section 10.01, the successor corporation formed by
such consolidation or into or with which the Company is merged or to which such
sale, lease, conveyance or other disposition or assignment is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor
corporation has been named as the Company herein; provided, however, that the
-------- -------
predecessor Company in the case of a sale, lease, conveyance or other
disposition or assignment shall not be released from the obligation to pay the
principal of and interest on the Securities of any series.
38
ARTICLE XI.
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge of Indenture.
---------------------------------------
If at any time: (a) the Company shall have delivered to the Trustee for
cancellation all Securities of a series theretofore authenticated (other than
any Securities that shall have been destroyed, lost or stolen and that shall
have been replaced or paid as provided in Section 2.07) and Securities for whose
payment money or Governmental Obligations have theretofore been deposited in
trust or segregated and held in trust by the Company (and thereupon repaid to
the Company or discharged from such trust, as provided in Section 11.05); or (b)
all such Securities of a particular series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit or cause to be
deposited with the Trustee as trust funds the entire amount in moneys or
Governmental Obligations sufficient or a combination thereof, sufficient to pay
at maturity or upon redemption all Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal (and premium, if
any) and interest due or to become due to such date of maturity or date fixed
for redemption, as the case may be, and if the Company shall also pay or cause
to be paid all other sums payable hereunder with respect to such series by the
Company then this Indenture shall thereupon cease to be of further effect with
respect to such series except for the provisions of Sections 2.03, 2.05, 2.07,
4.01, 4.02, 4.03 and 7.10, that shall survive until the date of maturity or
redemption date, as the case may be, and Sections 7.06 and 11.05, that shall
survive to such date and thereafter, and the Trustee, on demand of the Company
and at the cost and expense of the Company shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to
such series.
Section 11.02 Defeasance and Discharge of Obligations; Covenant Defeasance.
------------------------------------------------------------
(a) If at any time all such Securities of a particular series not
heretofore delivered to the Trustee for cancellation or that have not become due
and payable as described in Section 11.01 shall have been paid by the Company by
depositing irrevocably with the Trustee as trust funds moneys or an amount of
Governmental Obligations sufficient to pay at maturity or upon redemption all
such Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption, as the case
may be, and if the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to such series, then after the
date such moneys or Governmental Obligations, as the case may be, are deposited
with the Trustee the obligations of the Company under this Indenture with
respect to such series shall cease to be of further effect except for the
provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10 hereof that
shall survive until such Securities shall mature and be paid. Thereafter,
Sections 7.06 and 11.05 shall survive such satisfaction and discharge.
(b) In addition, the Company may, at its option and at any time, by
written notice executed by an Officer delivered to the Trustee, elect to have
its obligations under
39
Sections 4.04, 4.05, 5.03 and any covenant contained in Article X, and any other
covenant contained in the Board Resolution or supplemental indenture relating to
such series pursuant to Section 2.01, discharged with respect to all Outstanding
Securities of a series, this Indenture and any indentures supplemental to this
Indenture insofar as such Securities are concerned (hereinafter, "covenant
defeasance"), such discharge to be effective on the date the conditions set
forth in clauses (i) through (vi) of this Section 11.02(b) are satisfied, and
such Securities shall thereafter be deemed to be not "Outstanding" for the
purposes of any direction, waiver, consent or declaration of Securityholders
(and the consequences of any thereof) in connection with such covenants, but
shall continue to be "Outstanding" for all other purposes under this Indenture.
For this purpose, such covenant defeasance means that, with respect to the
Outstanding Securities of a series, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of reference in any
such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute an Event of Default under Section
6.01(a)(3) or otherwise, but except as specified in this Section 11.02(b), the
remainder of the Company's obligations under the Securities of such series, this
Indenture, and any indentures supplemental to this Indenture with respect to
such series shall be unaffected thereby.
The following shall be the conditions to the application of Section
11.02(b) to the Outstanding Securities of the applicable series:
(i) the Company irrevocably deposits in trust with the Trustee
or, at the option of the Trustee, with a trustee satisfactory to the
Trustee and the Company under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, money or
Governmental Obligations sufficient to pay principal and interest on
the Outstanding Securities of such series to maturity or redemption,
as the case may be, and to pay all other sums payable by it hereunder,
provided that (A) the trustee of the irrevocable trust shall have been
--------
irrevocably instructed to pay such money or the proceeds of such
Governmental Obligations to the Trustee and (B) the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of
such Governmental Obligations to the payment of said principal and
interest with respect to the Securities of such series;
(ii) the Company delivers to the Trustee an Officers'
Certificate stating that all conditions precedent specified herein
relating to defeasance or covenant defeasance, as the case may be,
have been complied with, and an Opinion of Counsel to the same effect;
(iii) no Event of Default under clauses (1), (2), (4) or (5) of
Section 6.01(a) shall have occurred and be continuing, and no event
which with notice or lapse of time or both would become such an Event
of Default shall have occurred and be continuing, on the date of such
deposit;
(iv) the Company shall have delivered to the Trustee an Opinion
of Counsel or a ruling received from the Internal Revenue Service to
the effect that the holders of the Securities of such series will not
recognize income, gain or loss
40
for Federal income tax purposes as a result of the Company's exercise
of either option under this Section 11.02 and will be subject to
Federal income tax in the same amount and in the same manner and at
the same times as would have been the case if such election had not
been exercised;
(v) such covenant defeasance shall not cause the Trustee to
have a conflicting interest for purposes of the Trust Indenture Act
with respect to any Securities; and
(vi) notwithstanding any other provisions of this Section 11.02,
such covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company pursuant to Section 2.01.
After such irrevocable deposit made pursuant to this Section 11.02(b) and
satisfaction of the other conditions set forth herein, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations pursuant
to this Section 11.02(b).
Section 11.03 Deposited Moneys to be Held in Trust.
------------------------------------
All moneys or Governmental Obligations deposited with the Trustee pursuant
to Sections 11.01 or 11.02 shall be held in trust and shall be available for
payment as due, either directly or through any paying agent (including the
Company acting as its own paying agent), to the holders of the particular series
of Securities for the payment or redemption of which such moneys or Governmental
Obligations have been deposited with the Trustee.
Section 11.04 Payment of Moneys Held by Paying Agents.
---------------------------------------
In connection with the provisions of Section 11.01 or 11.02, all moneys or
Governmental Obligations then held by any paying agent under the provisions of
this Indenture shall, upon demand of the Company, be paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys or Governmental Obligations.
Section 11.05 Repayment to Company.
--------------------
Any moneys or Governmental Obligations deposited with any paying agent or
the Trustee, or then held by the Company, in trust for payment of principal of
or premium or interest on the Securities of a particular series that are not
applied but remain unclaimed by the holders of such Securities for at least two
years after the date upon which the principal of (and premium, if any) or
interest on such Securities shall have respectively become due and payable,
shall be repaid to the Company on the last Business Day of each fiscal year of
the Company, or (if then held by the Company) shall be discharged from such
trust; and thereafter, the paying agent and the Trustee shall be released from
all further liability with respect to such moneys or Governmental Obligations,
and the holder of any of the Securities entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to the Company for the
payment thereof. Anything in this Article XI to the contrary notwithstanding,
subject to Section 7.06, the Trustee shall deliver or pay to the Company from
time to time upon request by the Company any money or Governmental Obligations
(or other property and any proceeds
41
therefrom) held by it as provided in Sections 11.01 or 11.02 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as the case may be, in accordance
with this Article XI. On the last business day of each fiscal year of the
Company, or (if then held by the Company) shall be discharged from such trust,
and thereafter.
Section 11.06 Reinstatement.
-------------
If the Trustee or paying agent is unable to apply any money or Governmental
Obligations in accordance with Section 11.01 or 11.02 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, the
Company's obligations under this Indenture, any indentures supplemental to the
Indenture with respect to the applicable series of Securities and the Securities
of such series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 11.01 or 11.02, as the case may be, until such time as the
Trustee or paying agent is permitted to apply all such money or Governmental
Obligations in accordance with Section 11.01 or 11.02, as the case may be;
provided, however, that if the Company has made any payment of interest on or
-------- -------
principal of any Securities of such series following the reinstatement of its
obligations as aforesaid, the Company shall be subrogated to the rights of the
holders of such Securities of such series to receive such payment from the money
or Governmental Obligations held by the Trustee or paying agent.
ARTICLE XII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 No Recourse.
-----------
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or of
any predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom, are hereby expressly waived
42
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of such Securities.
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
Section 13.01 Effect on Successors and Assigns.
--------------------------------
All the agreements of the Company in this Indenture or the Securities shall
bind its successor whether so expressed or not. All agreements of the Trustee
in this Indenture shall bind its successor whether so expressed or not.
Section 13.02 Actions by Successor.
--------------------
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that shall at the
time be the lawful sole successor of the Company.
Section 13.03 Notices.
-------
Any notice or communication by the Company or the Trustee to the other is
duly given if in writing and delivered in Person or mailed by first-class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the other's address:
If to the Company: Computer Sciences Corporation
0000 Xxxx Xxxxx Xxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Telephone No: (000) 000-0000
Fax No. (000) 000-0000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxx
Telephone No: (000) 000-0000
Fax No: (000) 000-0000
If to the Trustee:
43
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Securityholders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Securityholder shall be mailed by first-
class mail, certified or registered, return receipt requested, to his address
shown on the Security Register. Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its sufficiency with respect
to other Securityholders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
Section 13.04 Governing Law.
-------------
This Indenture and each Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of said State. This Indenture is subject
to the provisions of the Trust Indenture Act that are required to be part of
this Indenture and shall, to the extent applicable, be governed by such
provisions.
Section 13.05 Treatment of Securities as Debt.
-------------------------------
It is intended that the Securities will be treated as indebtedness and not
as equity for federal income tax purposes. The provisions of this Indenture
shall be interpreted to further this intention.
Section 13.06 Compliance Certificates and Opinions.
------------------------------------
(a) Upon any application or demand by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
in this Indenture shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is
44
necessary to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (4) a statement as to whether
or not, in the opinion of such Person, such condition or covenant has been
complied with.
Section 13.07 Payments on Business Days.
-------------------------
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution,
and as set forth in an Officers' Certificate or established in one or more
indentures supplemental to this Indenture, in any case where the date of
maturity of interest or principal of any Security or the date of redemption of
any Security shall not be a Business Day, then payment of interest or principal
(and premium, if any) may be made on the next succeeding Business Day with the
same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.
Section 13.08 Conflict with Trust Indenture Act.
---------------------------------
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
Section 13.09 Counterparts.
------------
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
and the same instrument.
Section 13.10 Separability.
------------
In case any one or more of the provisions contained in this Indenture or in
the Securities of any series shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of such Securities,
but this Indenture and such Securities shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
Section 13.11 No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 13.12 Table of Contents, Headings, Etc.
--------------------------------
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof and shall in no way modify or
restrict any of the terms or provisions hereof.
45
ARTICLE XIV
SUBORDINATION OF SECURITIES
---------------------------
Section 14.01 Subordination Terms.
-------------------
The payment by the Company of the principal of, premium, if any, and
interest on any series of Securities issued hereunder shall be subordinated to
other indebtedness of the Company to the extent set forth in an Officers'
Certificate or indenture supplemental hereto relating to such Securities, as
provided in Section 2.01 hereof.
46
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
COMPANY:
COMPUTER SCIENCES CORPORATION
By:_________________________________
Name:
Title:
TRUSTEE:
____________________________________
as Trustee
By:_________________________________
Name:
Title:
47
