EXHIBIT 4
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PITNEY XXXXX INC.,
Issuer
TO
SUNTRUST BANK, ATLANTA,
Trustee
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Indenture
Dated as April __, 1998
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TABLE OF CONTENTS
Page
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ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.1. Definitions.................................................. 1
Section 1.2. Compliance Certificates and Opinions......................... 10
Section 1.3. Form of Documents Delivered to Trustee....................... 10
Section 1.4. Acts of Holders.............................................. 11
Section 1.5. Notices, Etc., to Trustee and Company........................ 12
Section 1.6. Notice of Holders; Waiver.................................... 12
Section 1.7. Conflict with Trust Indenture Act............................ 13
Section 1.8. Effect of Headings and Table of Contents..................... 13
Section 1.9. Successors and Assigns....................................... 13
Section 1.10. Separability Clause.......................................... 13
Section 1.11. Benefits of Indenture........................................ 13
Section 1.12. Governing Law................................................ 13
Section 1.13. Legal Holidays............................................... 14
ARTICLE 2
Security Forms
Section 2.1. Forms Generally.............................................. 14
Section 2.2. Securities in Permanent Global Form.......................... 15
ARTICLE 3
The Securities
Section 3.1. Amount Unlimited; Issuable in Series......................... 16
Section 3.2. Denominations................................................ 18
Section 3.3. Execution, Authentication, Delivery and Dating............... 19
Section 3.4. Temporary Securities......................................... 20
Section 3.5. Registration, Registration of Transfer and Exchange.......... 21
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities............. 25
Section 3.7. Payment of Interest; Interest Rights Preserved............... 25
Section 3.8. Persons Deemed Owners........................................ 27
Section 3.9. Cancellation................................................. 27
Section 3.10. Computation of Interest...................................... 28
ARTICLE 4
Satisfaction and Discharge
Section 4.1. Satisfaction and Discharge of Indenture...................... 28
Section 4.2. Defeasance of Securities of Any Series....................... 29
Section 4.3. Application of Trust Funds; Indemnification.................. 31
Section 4.4. Reinstatement................................................ 32
ARTICLE 5
Remedies
Section 5.1. Events of Default............................................ 32
Section 5.2. Acceleration of Maturity; Rescission and Annulment........... 33
Section 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee................................................... 35
Section 5.4. Trustee May File Proofs of Claim............................. 36
Section 5.5. Trustee May Enforce Claims Without Possession of Securities.. 36
Section 5.6. Application of Money Collected............................... 37
Section 5.7. Limitation on Suits.......................................... 37
Section 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest................................................. 38
Section 5.9. Restoration of Rights and Remedies........................... 38
Section 5.10. Rights and Remedies Cumulative............................... 38
Section 5.11. Delay or Omission Not Waiver................................. 39
Section 5.12. Control by Holders........................................... 39
Section 5.13. Waiver of Past Defaults...................................... 39
Section 5.14. Undertaking for Costs........................................ 40
Section 5.15. Waiver of Usury, Stay or Extension Law....................... 40
ARTICLE 6
The Trustee
Section 6.1. Certain Duties and Responsibilities.......................... 41
Section 6.2. Notice of Defaults........................................... 42
Section 6.3. Certain Rights of Trustee.................................... 42
Section 6.4. Not Responsible for Recitals or Issuance of Securities....... 44
Section 6.5. May Hold Securities.......................................... 44
Section 6.6. Money Held in Trust.......................................... 44
Section 6.7. Compensation and Reimbursement............................... 44
Section 6.8. Disqualification; Conflicting Interests...................... 45
Section 6.9. Corporate Trustee Required; Eligibility...................... 45
Section 6.10. Resignation and Removal; Appointment of Successor............ 45
Section 6.11. Acceptance of Appointment by Successor....................... 47
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.. 48
Section 6.13. Preferential Collection of Claims Against Company............ 49
Section 6.14. Appointment of Authenticating Agent.......................... 53
ARTICLE 7
Holders' List and Reports by Trustee and Company
Section 7.1. Company to Furnish Trustee Names and Addresses of
Holders...................................................... 55
Section 7.2. Preservation of Information; Communications to Holders....... 55
Section 7.3. Reports by Trustee........................................... 57
Section 7.4. Reports by Company........................................... 59
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms......... 59
Section 8.2. Successor Corporation Substituted............................ 60
ARTICLE 9
Supplemental Indentures
Section 9.1. Supplemental Indentures Without Consent of
Holders...................................................... 61
Section 9.2. Supplemental Indentures with Consent of Holders.............. 62
Section 9.3. Execution of Supplemental Indentures......................... 63
Section 9.4. Effect of Supplemental Indentures............................ 63
Section 9.5. Conformity with Trust Indenture Act.......................... 63
Section 9.6. Reference in Securities to Supplemental Indentures........... 63
ARTICLE 10
Covenants
Section 10.1. Payment of Principal, Premium and Interest.................. 64
Section 10.2. Maintenance of Office or Agency............................. 64
Section 10.3. Money for Securities Payments to Be Held in Trust........... 65
Section 10.4. Corporate Existence......................................... 66
Section 10.5. Payment of Taxes and Other Claims........................... 66
Section 10.6. Limitations on Liens........................................ 67
Section 10.7. Limitations on Sale and Lease-Back Transactions............. 69
Section 10.8. Defeasance of Certain Obligations........................... 70
Section 10.9. Certificate of Officers of the Company...................... 72
Section 10.10. Waiver of Certain Covenants................................. 72
ARTICLE 11
Redemption of Securities
Section 11.1. Applicability of Article.................................... 72
Section 11.2. Election to Redeem; Notice to Trustee....................... 73
Section 11.3. Selection by Trustee of Securities to Be Redeemed........... 73
Section 11.4. Notice of Redemption........................................ 74
Section 11.5. Deposit of Redemption Price................................. 74
Section 11.6. Securities Payable on Redemption Date....................... 74
Section 11.7. Securities Redeemed in Part................................. 75
ARTICLE 12
Sinking Funds
Section 12.1. Applicability of Article.................................... 75
Section 12.2. Satisfaction of Sinking Fund Payments with Securities....... 76
Section 12.3. Redemption of Securities for Sinking Fund................... 76
Testimonium.................................................................78
Signature and Seals.........................................................78
Acknowledgments.............................................................79
Exhibit A. Form of Security.........................................A-1
Exhibit B. Form of Certification....................................B-1
Reconciliation and tie(1) between Trust Indenture Act of 1939, as amended, and
Indenture, dated as of April __, 1998
between
Pitney Xxxxx Inc., Issuer
and
SunTrust Bank, Atlanta, Trustee
Trust Indenture Indenture
Act Section Section
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Section 310 (a)(1).............................. 6.09
(a)(2).............................. 6.09
(a)(3).............................. Not Applicable
(a)(4).............................. Not Applicable
(b)................................. 6.08
6.10
Section 311 (a)................................. 6.13(a)
(b)................................. 6.13(b)
(b)(2).............................. 7.03(a)(ii)
7.03(b)
Section 312 (a)................................. 7.01
7.02(a)
(b)................................. 7.02(b)
(c)................................. 7.02(c)
Section 313 (a)................................. 7.03(a)
(b)................................. 7.03(b)
(c)................................. 7.03(a),
7.03(b)
(d)................................. 7.03(c)
Section 314 (a)................................. 704
(b)................................. Not Applicable
(c)(1).............................. 1.02
(c)(2).............................. 1.02
(c)(3).............................. Not Applicable
(d)................................. Not Applicable
(e)................................. 1.02
Section 315 (a)................................. 6.01(a)
(b)................................. 6.02
7.03(a)(6)
(c)................................. 6.01(b)
(d)................................. 6.01(c)
(d)(1).............................. 6.01(a)(i)
(d)(2).............................. 6.01(c)(ii)
(d)(3).............................. 6.01(c)(iii)
(e)................................. 5.14
Section 316 (a)................................. 1.01
(a)(1)(A)........................... 5.02
5.12
(a)(1)(B)........................... 5.13
(a)(2).............................. Not Applicable
(b)................................. 5.08
Section 317 (a)(1).............................. 5.03
(a)(2).............................. 5.04
(b)................................. 10.03
Section 318 (a)................................. 10.07
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(1) NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
INDENTURE, dated as of April __ , 1998, between PITNEY XXXXX
INC., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal xxxxxx xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000-0000, and SunTrust Bank, Atlanta, a
banking corporation duly organized and existing under the laws of the State of
Georgia, as Trustee (herein called the "Trustee").
Recitals of the Company
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.1. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article 6, are defined in
that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent Member" means a member of, or participant in, a
Depositary.
"Authenticating Agent" means any Person authorized by the
Trustee to act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in that Place of Payment are authorized or
obligated by law to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means as of any particular
time the aggregate amount of assets after deducting therefrom (a) all current
liabilities (excluding any such liability that by its terms is extendable or
renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed) and (b) all
goodwill, excess of cost over assets acquired, patents, copyrights, trademarks,
trade names, unamortized debt discount and expense and other like intangibles,
all as shown in the most recent consolidated financial statements of the
Company and its Subsidiaries prepared in accordance with generally accepted
accounting principles.
"Consolidated Net Worth" means the sum of (i) the par value or
stated value of the capital stock of the Company, (ii) the capital in excess of
par value and (iii) the retained earnings, all as shown on the most recent
consolidated balance sheet of the Company and its Subsidiaries, prepared in
accordance with generally accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee in
Atlanta, Georgia at which at any particular time corporate trust business
shall be principally administered. At the date of execution of this Indenture
the address of the Corporate Trust Office is 00 Xxxxxxxx Xxxxxx, Xxxxx 000X,
Xxxxxxx, Xxxxxxx 00000.
"Corporation" means corporation, association, company, joint
stock company or business trust.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more permanent
global Securities, the Person designated as Depositary by the Company pursuant
to Section 3.1, which must be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of
any such series shall mean the Depositary with respect to the Securities of
that series.
"Event of Default" has the meaning specified in Section 5.1.
"Funded Debt" means, with respect to any Person (a) every
obligation of such Person for money borrowed and every obligation of such
Person secured by any lien, mortgage, pledge or other security interest upon
any property or asset of such Person (whether or not assumed by such Person),
which by its terms matures at, or is extendible or renewable at the option of
the obligor to, a date more than 12 months after the time of the computation of
the amount thereof, and which would appear as a liability (other than a current
liability or a deferred item) on a statement of financial position of such
Person in accordance with generally accepted accounting principles, (b) all
obligations in respect of lease rentals which would be shown on a balance
sheet of the obligor as a liability (other than a current liability or a
deferred item) in accordance with generally accepted accounting principles,
(c) all guarantees, direct or indirect, of any such indebtedness or of any
such obligations of others or of dividends, and (d) all outstanding Preferred
Stock of any Restricted Subsidiary.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 3.1.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only upon Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an instalment of interest on such Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an instalment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption (a)
money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company)
in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the
Holders of such Securities or (b) U.S. Government
Obligations as contemplated by Section 4.2 in the necessary
amount have been theretofore deposited with the Trustee (or
another trustee satisfying the requirements of Section 6.9
in trust for the Holders of such Securities in accordance
with Section 4.3; provided that, if such Securities are to
be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities as to which Defeasance has been
effected pursuant to Section 4.2; and
(iv) Securities which have been paid pursuant to
Section 3.6 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent, waiver or other action hereunder as
of any date (A) the principal amount of an Original Issue Discount Security
which shall be deemed to be Outstanding shall be the amount of the principal
thereof which would be due and payable as of such date upon acceleration of
the Maturity thereof to such date pursuant to Section 5.2, (B) if, as of such
date, the principal amount payable at the Stated Maturity of a Security is not
determinable, the principal amount of such Security which shall be deemed to
be Outstanding shall be the amount as specified or determined as contemplated
by Section 3.1, (C) the principal amount of a Security denominated in one or
more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 3.1, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D)
Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities on behalf
of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of
any series, means the place or places where the principal of and any premium or
interest on the Securities of that series are payable as specified as
contemplated by Section 3.1.
"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 3.6 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Preferred Stock" as applied to the capital stock of any
corporation means stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
on any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of stock of any other class of such corporation.
"Principal Domestic Manufacturing Plant" means any manufacturing
or processing plant or warehouse (other than such manufacturing plant or
warehouse which, in the opinion of the Board of Directors, is not of material
importance to the total business conducted by the Company and its Subsidiaries
taken as a whole) together with the land upon which it is erected and fixtures
comprising a part thereof, owned by the Company or any Subsidiary and located
in the United States of America, if the gross book value (without deduction of
any depreciation reserves) of all real property and fixed assets included in
such plant on the date as of which the determination is being made exceeds 1%
of Consolidated Net Worth.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee,
means any officer within the Corporate Trustee Administration Department,
including any vice president, any assistant secretary, any trust officer or
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 means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary which is organized
under the laws of the United States or of any State or of the District of
Columbia and transacts all or a substantial portion of its business in the
United States and which owns a Principal Domestic Manufacturing Plant;
provided, however, that the term shall not include Pitney Xxxxx Credit
Corporation, a Delaware corporation, or any other Subsidiary (a) which is
solely or primarily engaged in the business of providing or obtaining
financing for the sale or lease of products sold or leased by the Company or
any Subsidiary or which is otherwise primarily engaged in the business of a
finance company either on a secured or an unsecured basis or (b) which is
solely or primarily engaged in the business of owning, developing or leasing
real property other than a Principal Domestic Manufacturing Plant.
"Sale and Lease-Back Transaction" of a corporation means any
arrangement whereby property has been or is to be sold or transferred by such
corporation to any Person with the intention on the part of such corporation of
taking back a lease of such property with a term of more than 36 months
pursuant to which the rental payments are calculated to amortize the purchase
price of such property substantially over the useful life of such property, and
such property is in fact so leased by such corporation.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such instalment of principal or interest is due and payable.
"Subsidiary" means with respect to the Company, a corporation
more than 50% of the outstanding Voting Stock of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of this
definition, "Voting Stock" means stock which ordinarily has voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force on the date on which this instrument was executed,
provided however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required by such
amendment, the Trust Indenture of 1939 as so amended.
"U.S. Government Obligations" means securities which 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, which, 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 or trust
company as custodian with respect to any such U.S. Government Obligations or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depository receipt for any amount received by the custodian in respect
to the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation by such depository receipt.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
"Wholly-Owned Restricted Subsidiary" means a Restricted
Subsidiary all of the outstanding voting stock of which, other than directors'
qualifying shares, and all the Funded Debt of which shall at the time be owned
by the Company or by one or more other Wholly-Owned Restricted Subsidiaries, or
by the Company and one or more other Wholly-Owned Restricted Subsidiaries.
"Wholly-Owned Subsidiary" means any Subsidiary of which, at the
time of determination, all of the outstanding voting stock (other than
directors' qualifying shares) is owned by the Company, directly and/or
indirectly. For purposes of this definition, "voting stock" has the same
meaning as under the definition of "Subsidiary".
Section 1.2. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as
to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. If any Securities are denominated in coin or currency other than
that of the United States, then for the purposes of determining whether the
Holders of the requisite principal amount of Securities have taken any action
with respect to the Securities of more than one series as herein described, the
principal amount of such Securities shall be deemed to be that amount of
United States dollars that could be obtained for such principal amount on the
basis of the spot rate of exchange into United States dollars for the currency
in which such Securities are denominated (as evidenced to the Trustee by an
Officers' Certificate) as of the date the taking of such action by the Holders
of such requisite principal amount is evidenced to the Trustee as provided in
the immediately preceding sentence. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
6.1) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
Section 1.5. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trustee Administration Department, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office specified in
the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
Section 1.6. Notice of Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 1.7. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture act, such required provision
shall control.
Section 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the Parties hereto, any
Authenticating Agent, any Paying Agent, any Security Registrar and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 1.12. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
Section 1.13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, provided that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE 2
Security Forms
Section 2.1. Forms Generally.
The Securities of each series shall be in substantially the
form set forth in Exhibit A, or in such other form as shall be established by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with any law or any rules or regulations pursuant thereto, or with the rules
of any securities exchange or to conform to general usage, all as may
consistently herewith be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities
of any series is established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by
Section 3.3 for the authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in Exhibit B.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 2.2. Securities in Permanent Global Form.
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part in permanent global
form, then notwithstanding Section 3.1(h) and the provisions of Section 3.2,
any such Security shall represent such of the Outstanding Securities of such
series as shall be specified therein and may provide that it shall represent
the aggregate amount of Outstanding Securities from time to time endorsed
thereon and that the aggregate amount of Outstanding Securities represented
thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Security in permanent global form to reflect the amount, or
any increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee or the Security Registrar in such manner
and upon instructions given by such Person or Persons as shall be specified in
such Security in permanent global form or in the Company Order to be delivered
to the Trustee pursuant to Section 3.3 or Section 3.4. Subject to the
provisions of Section 3.3 and, if applicable, Section 3.4, the Trustee or the
Security Registrar shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons
specified in such Security or in the applicable Company Order. If a Company
Order pursuant to Section 3.3 or 3.4 has been, or simultaneously is, delivered,
any instructions by the Company with respect to endorsement or delivery or
redelivery of a global Security shall be in writing but need not comply with
Section 1.2 and need not be accompanied by an Officer's Certificate or an
Opinion of Counsel, provided that the permanent global Security to be
endorsed, delivered or redelivered has previously been covered by an Opinion
of Counsel.
The provisions of the last sentence of Section 3.3 shall only
apply to any Security represented by a Security in permanent global form if
such Security was never issued and sold by the Company and the Company delivers
to the Trustee or the Security Registrar the Security in permanent global form
together with written instructions (which need not comply with Section 1.2 and
need not be accompanied by an Officer's Certificate or an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.3.
Unless otherwise specified as contemplated by Section 3.1 for
the Securities evidenced thereby, every Security in permanent global form
authenticated and delivered hereunder shall bear a legend in substantially the
following form:
THIS SECURITY IS A SECURITY IN PERMANENT GLOBAL FORM AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
ARTICLE 3
The Securities
Section 3.1. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and, subject to
Section 3.3, set forth, or determined in the manner provided, in an Officer's
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any
Securities which, pursuant to Section 3.3 of the Indenture, shall have not
been issued and sold by the Company and are therefore deemed never to have
been authenticated and delivered hereunder);
(c) the date or dates on which the principal of the
Securities of the series is payable;
(d) the Person to whom any interest on any Security of the
series shall be payable if other than as set forth in Section 3.7; the rate
or rates at which the Securities of the series shall bear any interest or
the manner of calculation of such rate or rates, if any, the date or dates
from which any such interest shall accrue, the Interest Payment Dates on
which any such interest shall be payable and the Regular Record Date, for
the interest payable on any Interest Payment Date;
(e) the place or places where the principal of and any
premium or interest on Securities of the series shall be payable;
(f) 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 and, if
other than by a Board Resolution, the manner in which any election by the
Company to redeem the Securities shall be evidenced;
(g) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased in whole
or in part, pursuant to such obligation;
(h) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series shall
be issuable;
(i) 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 5.2;
(j) if applicable, that the Securities of the Series, in
whole or any specified part, shall be defeasible pursuant to Section 4.02
or Section 10.08 or both Sections and if other than a Board Resolution, the
manner in which any election by the Company to defease those securities
shall be evidenced;
(k) whether the Securities of the series are to be issuable
in whole or in part in permanent global form, without coupons, and, if so,
(i) the form of any legend or legends which shall be borne by any such
permanent global Security in addition to or in lieu of that set forth in
Section 2.2, (ii) any circumstances in addition to or in lieu of those set
forth in Clause (2) of the last paragraph of Section 3.5 in which such
permanent global Security may be exchanged in whole or in part for
Securities registered, and in which any transfer of such permanent global
Security in whole or in part may be registered, in the name of Persons
other than the Depositary for such permanent global Security or a nominee
thereof and (iii) the Depositary with respect to any such permanent global
Security or Securities;
(l) the currency or currencies, including composite
currencies, in which payment of the principal of, and any premium and
interest on, the Securities of the series shall be payable if other than
the currency of the United States of America;
(m) if the principal of, or any premium or interest on, any
Securities of the series is to be payable, at the election of the Company
or the Holder thereof, in one or more currencies or currency units other
than that or those in which such Securities are stated to be payable, the
currency, currencies or currency units in which the principal of or any
premium or interest on such Securities as to which such election is made
shall be payable, the periods within which and the terms and conditions
upon which such election is to be made and the amount so payable (or the
manner in which such amount shall be determined);
(n) if the amount of payments of principal of, or any
premium or interest on, the Securities of the series may be determined with
reference to an index or pursuant to a formula, the manner in which such
amounts shall be determined;
(o) if the principal amount payable at the Stated Maturity
of any Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be deemed
to be the principal amount of such Securities as of any such date for any
purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated
Maturity or which shall be deemed to be Outstanding as of any date prior to
the Stated Maturity (or, in any such case, the manner in which such amount
deemed to be the principal amount shall be determined);
(p) any addition to or change in the Events of Default which
applies to any Securities of the series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 5.1;
(q) any addition to or change in the covenants set forth in
Article Ten which applies to any Securities of the series; and
(r) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1(e)).
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 the Board Resolution referred to above and (subject to Section
3.3) set forth in the Officer's Certificate referred to above or in any such
indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
Section 3.2. Denominations.
The Securities of each series shall be issuable in registered
form without coupons and only in such denominations as shall be specified in
accordance with Section 3.1. In the absence of such provisions with respect to
the Securities of any series, the Securities of such series shall be issuable
in denominations of $1,000 and any integral multiple thereof.
Section 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, one of its Vice Presidents or its
Treasurer, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
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
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver
such Securities. If the form or terms of the Securities of the series have
been established by or pursuant to one or more Board Resolutions as permitted
by Sections 2.1 and 3.1, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
6.1) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such form has
been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such terms have
been established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officer's
Certificate otherwise required pursuant to Section 3.1 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding paragraph
at or prior to the time of authentication of each Security of such series if
such documents are delivered at or prior to the time of authentication upon
original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing and subject, in the case of a
Security in permanent global form, to Section 2.2, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9 together with a written statement
(which need not comply with Section 1.2 and need not be accompanied by an
Opinion of Counsel) directing such cancellation and stating that such Security
has never been issued and sold by the Company, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series
and of like tenor of authorized denominations. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
Section 3.5. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and
in any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees one or more new Securities of
the same series of any authorized denominations and of a like aggregate
principal amount and of like tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and of like tenor, upon
surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
11.3 and ending at the close of business on the day of such day of such
mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
The provisions of Clauses (1) - (7) below shall apply only to
permanent global Securities:
(1) Each permanent global Security authenticated under
this Indenture shall be registered in the name of the
Depositary designated for such permanent global Security or
a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such
permanent global Security shall constitute a single Security
for all purposes of this Indenture.
(2) Notwithstanding any other provisions in this
Indenture, no permanent global Security may be exchanged in
whole or in part for Securities registered, and no transfer
of a permanent global Security in whole or in part may be
registered, in the name of any Person other than the
Depositary for such permanent global Security or a nominee
thereof unless (a) the Depositary notifies the Company
pursuant to Clause (4) of this Section that it is unwilling
or unable to continue as Depositary for such permanent
global Security or if at any time the Depositary ceases to
be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, (b) if the Company in its
sole discretion determines pursuant to Clause (5) of this
Section that such permanent global Security shall be so
exchangeable or transferrable and executes and delivers to
the Security Registrar a Company Order providing that such
permanent global Security shall be so exchangeable or
transferrable, (c) any event shall have occurred and be
continuing which, after notice or lapse of time, or both,
would become an Event of Default with respect to the
securities of the series of which such permanent global
Security is a part or (d) there shall exist such
circumstances, if any, in addition or in lieu of the
foregoing as have been specified for this purpose as
contemplated by Section 3.1.
(3) Subject to Clause (2) above, any exchange of a
permanent global Security for other Securities may be made in
whole or in part, and all Securities issued in exchange for a
permanent global Security or any portion thereof shall be
registered in such names as the Depositary for such permanent
global Security shall direct. The Trustee shall deliver such
Securities to or as directed by the Persons in whose names
such Securities are so registered.
(4) If at any time the Depositary for any Securities
of a series represented by one or more global Securities
notifies the Company that it is unwilling or unable to
continue as Depositary for such Securities or if at any time
the Depositary ceases to be a clearing agency registered
under the Securities Exchange Act of 1934, as amended, the
Company shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such
Securities is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of
such ineligibility (and in any event before the Depositary
surrenders such global Security for exchange), the Company's
election that such Securities be represented by one or more
global Securities shall no longer be effective and the
Company shall execute, and the Trustee, upon receipt of an
Officers' Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered
form without coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of
the global Security or Securities representing such
Securities in exchange for such global Security or
Securities.
(5) The Company may at any time and in its sole
discretion determine that the Securities of any series
issued in the form of one or more global Securities shall no
longer be represented by a global Security or Securities.
In such event the Company will execute, and the Trustee,
upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities of such
series, will authenticate and deliver Securities of such
series in definitive registered form, in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of the global Security or Securities
representing such Securities, in exchange for such global
Security or Securities.
(6) Subject to Clause (2) above, with respect to
Securities represented by a global Security, the Depositary
for such global Security may surrender such global Security
in exchange in whole or in part for Securities of the same
series in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon,
the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a
new Security or Securities of the same series, of any
authorized denomination as requested by such Person, in
an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the global
Security; and
(ii) to such Depositary a new global Security
in a denomination equal to the difference, if any,
between the principal amount of the surrendered global
Security and the aggregate principal amount of
Securities authenticated and delivered pursuant to
clause 3.05(6)(i) above.
Upon the exchange of a global Security for Securities
in definitive registered form, in authorized denominations,
such global Security shall be canceled by the Trustee.
(7) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu
of, a permanent global Security or any portion thereof,
whether pursuant to this Section, Section 3.4, 3.6, 9.6 or
11.7 or otherwise, shall be authenticated and delivered in
the form of, and shall be, a permanent global Security,
unless such Security is registered in the name of a Person
other than the Depositary for such permanent global Security
or a nominee thereof.
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.1 with
respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest; provided that if that Security or its
Predecessor Security was originally issued on a date after a Regular Record
Date and before the following Interest Payment Date, the first payment of
interest on such Security will be made on the Interest Payment Date following
the next succeeding Regular Record Date. Interest payable at Maturity (other
than on a date which is an Interest Payment Date) will be paid to the same
Person to whom the principal amount of this Security is payable.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (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
Security of such series 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 provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less 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 Holder
of Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause
(b).
(b) The Company may make payment of any Defaulted Interest
on the Securities of any series 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,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 3.8. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 3.7) interest on such Security and
for all other purposes whatsoever, whether or not such Security is overdue,
and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
Section 3.9. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be disposed of
as directed by a Company Order.
Section 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE 4
Satisfaction and Discharge
Section 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and
delivered (other than (x) Securities which have been
destroyed, lost or stolen and which have been replaced or
paid as provided in Section 3.6 and (y) Securities for
whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 10.3) have been delivered to
the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to
the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year, or
(C) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of (A), (B) or (C) above has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay
and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and any premium or interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.7,
the obligations of the Trustee to any Authenticating Agent under Section 6.14
and, if money shall have been deposited with the Trustee pursuant to subclause
(ii) of clause (a) of this Section, the obligations of the Trustee under
Section 4.3 and the last paragraph of Section 10.3 shall survive.
Section 4.2. Defeasance of Securities of Any Series.
Unless otherwise specified pursuant to Section 3.1 with respect
to the Securities of any series, then notwithstanding Section 4.1, the Company
shall be deemed to have paid and discharged the entire indebtedness on all the
Outstanding Securities of any series on the 91st day after the date of the
deposit referred to in subparagraph (d) hereof, and the provisions of this
Indenture, as it relates to such Outstanding Securities, shall no longer be in
effect (and the Trustee, at the expense of the Company, shall at Company
Request, execute proper instruments acknowledging the same) (hereinafter
called "Defeasance"), except as to:
(a) the rights of Holders of Securities to receive, from the
trust funds described in subparagraph (d) hereof, (i) payment of the
principal of and any premium and each instalment of principal of and any
premium or interest on the Outstanding Securities of that series on the
Stated Maturity of such principal or instalment of principal or interest
and (ii) the benefit of any mandatory sinking fund payments or analogous
payments applicable to Securities of such series on the day on which such
payments are due and payable in accordance with the terms of the Indenture
and such Securities;
(b) the Company's obligations with respect to such Securities
under Sections 3.5, 3.6, 10.2 and 10.3; and
(c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder;
provided that the following conditions have been satisfied:
(d) with reference to this provision the Company has
irrevocably deposited or caused to be irrevocably deposited with the Trustee
as trust funds in the trust for purposes of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of the Securities of that series, (i) money in an amount, or
(ii) U.S. Government Obligations which through the payment of interest
and principal in respect thereof in accordance with their terms will
provide not later than one day before the due date of any payment referred
to in clause (A) or (B) of this subparagraph (d) money in an amount, or
(iii) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee for such purposes, (A) the principal
of and any premium and each instalment of principal and any premium or
interest on the Outstanding Securities of that series on the Stated
Maturity or the Redemption Date, as the case may be, of such principal or
instalment of principal or interest and (B) any mandatory sinking fund
payments or analogous payments applicable to Securities of such series on
the day on which such payments are due and payable, each in accordance with
the terms of this Indenture and of such Securities;
(e) such Defeasance shall not cause the Trustee with respect
to the Securities of that series to have a conflicting interest as defined
in Section 6.8 and for purposes of the Trust Indenture Act with respect to
the Securities of any series;
(f) such Defeasance will not result in a breach or violation
of, or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(g) such Defeasance would not cause any Outstanding Security
of such series then listed on any nationally recognized securities exchange
to be then delisted as a result thereof;
(h) no Event of Default or event which with notice or lapse
of time would become an Event of Default with respect to Securities of the
series shall have occurred and be continuing on the date of such deposit or
during the period ending on the 91st day after such date;
(i) the Company has delivered to the Trustee an Opinion of
Counsel stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the date
of this Indenture there has been a change in the applicable Federal income
tax law, in either case to the effect that, and such Opinion of Counsel
shall confirm that, Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result
of such deposits, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same times,
as would have been the case if such deposit, defeasance and discharge had
not occurred; and that such Defeasance would not result in the trust
arising from such deposit constituting an investment company within the
meaning of the Investment Company Act of 1940, as amended from time to
time; and
(j) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the Defeasance contemplated by this
provision have been complied with.
Section 4.3. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of the last paragraph of Section
10.3, all money deposited with the Trustee pursuant to Section 4.1, all money
and U.S. Government Obligations deposited with the Trustee pursuant to Section
4.2 or Section 10.8 and all money received by the Trustee in respect of U.S.
Government Obligations deposited with the Trustee pursuant to Section 4.2 or
Section 10.8 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto of
the principal (and premium, if any) and interest for whose payment such money
has been deposited with or received by the Trustee or to make mandatory
sinking fund payments or analogous payments as contemplated by Section 4.2 or
Section 10.8, as the case may be.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against U.S.
Government Obligations deposited pursuant to Section 4.2 or Section 10.8 or
the interest and principal received in respect of such obligations other
than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from
time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 4.2 or 10.8 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are then in excess
of the amount which then would have been required to be deposited for the
purpose for which such money or U.S. Government Obligations were deposited
or received.
Section 4.4. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money
in accordance with Section 4.2 or 10.8 with respect to any Securities by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application or upon the occurrence of
an Event of Default, then the obligations under this Indenture and such
Securities from which the Company has been discharged or released pursuant to
Section 4.2 or 10.8 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article with respect to such Securities, until such
time as the Trustee or Paying Agent is permitted to apply all money held in
trust pursuant to Section 4.3 with respect to such Securities in accordance
with this Article; provided, however, that if the Company makes any payment of
principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the rights
(if any) of the Holders of such Securities to receive such payment from the
money so held in trust.
ARTICLE 5
Remedies
Section 5.1. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(b) default in the payment of the principal of (or premium,
if any on) any Security of that series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty
a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this Indenture
solely for the benefit of a series of Securities other than that series), and
continuance of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of each series affected thereby a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or any
substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(f) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such petition or
the appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of any assignment for the
benefit of creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of corporate action
by the Company in furtherance of any such action; or
(g) any events of default provided with respect to Securities
of that Series.
Section 5.2. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default described in clause (a), (b), (c), (d)
or (g) of Section 5.1 with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of such series (each such series voting as a separate class in the
case of an Event of Default under clause (a), (b), (c) or (g) of Section 5.1,
and all such series voting as one class in the case of such an Event of
Default under clause (d) of Section 5.1) may declare the principal amount (or,
if the Securities of any such series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of that
series) of all of the Securities of such series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if
given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable. If any Event of
Default described in clause (e) or (f) of Section 5.1 occurs and is
continuing, then in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of all the Outstanding Securities
(voting as one class) may declare the principal amount (or, if the Securities
of any such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Securities then Outstanding to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) the overdue interest on all Securities of the
series,
(ii) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise
than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such
Securities,
(iii) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(iv) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustees, its agents and
counsel and all other amounts due under 6.7;
and
(b) all Events of Default with respect to Securities of that
series other than the non-payment of the principal of Securities of that
series which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities, for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein or therein, or to enforce any other
proper remedy.
Section 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holders hereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 6.7; and
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest
on the Securities 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.
Section 5.7. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
that series;
(b) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of all Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
Section 5.8. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any)
and (subject to Section 3.7) interest on such Security on the Stated Maturity
or Maturities expressed in such Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertions or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
which shall have occurred and shall be continuing shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
Section 5.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture,
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(c) the Trustee shall have the right to decline any
direction with respect to which a Responsible Officer reasonably determines
such direction will cause the Trustee to incur any liability for which it
shall not have been adequately indemnified pursuant to Section 5.7.
Section 5.13. Waiver of Past Defaults.
The Holders of (i) not less than a majority in principal amount
of the Outstanding Securities of any series (each such series voting as a
separate class) may on behalf of the Holders of all Securities of such series
waive any past default with respect to such series and its consequences, or
(ii) not less than a majority in principal amount of the Outstanding
Securities (voting as one class) may on behalf of the Holders of all the
Outstanding Securities affected thereby waive any past default described in
(d), (e) and (f) of Section 5.01 with respect to the Securities of such series
and its consequences, except in any such case a default
(a) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(b) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 25% in principal amount of the Outstanding Securities of any series or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
Section 5.15. Waiver of Usury, Stay or Extension Law.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension of
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 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 6
The Trustee
Section 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and
only such duties as specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
(i) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) 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 a majority
in principal amount of the Outstanding Securities of any
series, determined as provided in Section 5.12, 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 such series; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 6.2. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
known to the Trustee (within the meaning of Section 6.03(h)) with respect to
the Securities of any series the Trustee shall transmit in the manner and to
the extent provided in Section 7.3(d), notice of such default hereunder known
to the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of or any premium or interest on any Security of such series or in the payment
of any sinking fund instalment with respect to Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of Securities of
such series; and provided, further, that in the case of any default of the
character specified in Section 5.1(d) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default",
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
Section 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h) the Trustee is not required to take notice or deemed to
have notice of any default or Event of Default hereunder, except an Event
of Default under Section 5.01(a), (b) or (c) if at the time it is serving
as Paying Agent for the Securities, unless a Responsible Officer of the
Trustee (i) has actual knowledge of such default or Event of Default or
(ii) has received notice in writing of such default or Event of Default
from the Company or from the holders of at least 25% in aggregate principal
amount of the Outstanding Securities of the series so affected, and in the
absence of any such actual knowledge or notice, the Trustee may
conclusively assume that no default or Event of Default exists; and
(i) the Trustee's immunities and protections from liability
and its rights to compensation and indemnification in connection with the
performance of its duties under this Indenture shall extend to the
Trustee's officers, directors, agents and employees. Such immunities and
protections and right to indemnification, together with the Trustee's right
to compensation, shall survive the Trustee's resignation or removal and
final payment of the Securities.
Section 6.4. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
Section 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 6.7. Compensation and Reimbursement.
The Company agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and counsel), except any
such expenses, disbursements or advances as may be attributable to its
negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
(d) The Trustee shall have, and is hereby granted, a first
priority lien on all monies, securities and collateral (other than monies
held in trust by the Trustee for the purpose of paying the principal of,
and any premium and interest on, the Securities) held by or on behalf of
the Trustee pursuant to this Indenture for payment or reimbursement to the
Trustee of its fees, expenses and any other monies payable to it hereunder.
Section 6.8. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting
interest within the meaning of the Trust Indenture Act, with respect to the
Securities of any series, it shall, within 90 days after ascertaining that
it has such conflicting interest, either eliminate such conflicting
interest or resign with respect to the Securities of that series in the
manner and with the effect hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with
the provisions of Subsection (a) of this Section with respect to the
Securities of any series, the Trustee shall, within 10 days after the
expiration of such 90-day period, transmit by mail to all Holders of
Securities of that series, as their names and addresses appear in the
Security Register, notice of such failure.
Section 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 subject to supervision or examination by
Federal or State authority and having its Corporate Trust Office in any State
in the United States of America or in the District of Columbia. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of said supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
Section 6.10. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required
by Section 6.11 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.8(a)
after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least
six months, or
(ii) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company, by a Board Resolution, may remove
the Trustee with respect to the applicable series of Securities, or (B)
subject to Section 5.14, any Holder who has been a bona fide Holder of a
Security of any series for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to such series of
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 6.11, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.11, any Holder who has been a
bona fide holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid,
to all Holders of Securities of such series as their names and addresses
appear in the Security Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
Section 6.11. 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
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) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the 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 and that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such
Trustee; 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 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 all 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
shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may
be.
(d) No such successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any 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 6.13. Preferential Collection of Claims Against
Company.
(a) Subject to Subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined
in Subsection (c) of this Section, or subsequent to such a default, as defined
in Subsection (c) of this Section, then, unless and until such default shall
be cured, the Trustee shall set apart and hold in a special account for the
benefit of the Trustee individually, the Holders of the Securities and the
holders of other indenture securities, as defined in subsection (c) of this
Section:
(i) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in
respect of principal or interest, effected after the
beginning of such three months' period and valid as against
the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any
property described in paragraph (ii) of this Subsection, or
from the exercise of any right of set-off which the Trustee
could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such
default; and
(ii) all property received by the Trustee in respect of
any claims as such creditor, either as security therefor, or
in satisfaction or composition thereof, or otherwise, after
the beginning of such three months' period, or an amount
equal to the proceeds of any such property, if disposed of,
subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of
the Trustee:
(A) to retain for its own account (1) payments made on
account of any such claim by any Person (other than the
Company) who is liable thereon, (2) the proceeds of the
bona fide sale of any such claim by the Trustee to a
third Person, and (3) distributions made in cash,
securities or other property in respect of claims filed
against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such
property was so held prior to the beginning of such three
months' period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any
property held by it as security for any such claim, if
such claim was created after the beginning of such three
months' period and such property was received as security
therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at
the time such property was so received the Trustee had no
reasonable cause to believe that a default, as defined in
Subsection (c) of this Section, would occur within four
months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property
held as security for such claim as provided in paragraph
(B) or (C), as the case may be, to the extent of the fair
value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of repaying or
refunding any pre-existing claim of the Trustee as such creditor, such claim
shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders and the holders of other indenture
securities in such manner that the Trustee, the Holders and the holders of
other indenture securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
the Federal Bankruptcy Act or applicable State law, the same percentage of
their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the respective claims
of the Trustee and the Holders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law, whether such distribution is
made in cash, securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which such bankruptcy, receivership or proceedings for reorganization
is pending shall have jurisdiction (1) to apportion among the Trustee, the
Holders and the holders of other indenture securities, in accordance with the
provisions of this paragraph, the funds and property held in such special
account and proceeds thereof, or (2) in lieu of such apportionment, in whole
or in part, to give to the provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to the Trustee and the
Holders and the holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to liquidate or to
appraise the value of any securities or other property held in such special
account or as security for any such claim, or to make a specific allocation of
such distributions as between the secured and unsecured portions of such
claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such three months' period shall be subject to the provisions of
this Subsection as though such resignation or removal had not occurred. If
any Trustee has resigned or been removed prior to the beginning of such three
months' period, it shall be subject to the provisions of this Subsection if
and only if the following conditions exist:
(3) the receipt of property or reduction of
claim, which would have given rise to the obligation
to account, if such Trustee had continued as
Trustee, occurred after the beginning of such three
months' period; and
(4) such receipt of property or reduction of
claim occurred within three months after such
resignation or removal.
In any case commenced under the Bankruptcy Act of July 1, 1898,
or any amendment thereto, enacted prior to November 6, 1978, all references to
periods of three months shall be deemed to be references to periods of four
months.
(b) There shall be excluded from the operation of Subsection
(a) of this Section a creditor relationship arising from:
(i) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a
maturity of one year or more at the time of acquisition by
the Trustee;
(ii) advances authorized by a receivership or
bankruptcy court of competent jurisdiction or by this
Indenture, for the purpose of preserving any property which
shall at any time be subject to the lien of this Indenture
or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the
Holders at the time and in the manner provided in this
Indenture;
(iii) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depositary, or other similar capacity;
(iv) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a
result of goods or securities sold in a cash transaction, as
defined in Subsection (c) of this Section;
(v) the ownership of stock or of other securities of
a corporation organized under the provisions of Section
25(a) of the Federal Reserve Act, as amended, which is
directly or indirectly a creditor of the Company; and
(vi) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of self-
liquidating paper, as defined in Subsection (c) of
this Section.
(c) For the purposes of this Section only:
(i) the term "default" means any failure to make
payment in full of the principal of or interest on any of
the Securities or upon the other indenture securities when
and as such principal or interest becomes due and payable;
(ii) the term "other indenture securities" means
securities upon which the Company is an obligor outstanding
under any other indenture (A) under which the Trustee is
also trustee, (B) which contains provisions substantially
similar to the provisions of this Section, and (C) under
which a default exists at the time of the apportionment of
the funds and property held in such special account;
(iii) the term "cash transaction" means any transaction
in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities
in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(iv) the term "self-liquidating paper" means any
draft, xxxx of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company for the
purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing
title to, possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously
constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, xxxx
of exchange, acceptance of obligation;
(v) the term "Company" means any obligor upon the
Securities; and
(vi) the term "Federal Bankruptcy Act" means the
Bankruptcy Act or Title 11 of the United States Code.
Section 6.14. Appointment of Authenticating Agent.
At any time the Trustee may appoint an Authenticating Agent or
Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue, exchange, registration of transfer or
partial redemption thereof or pursuant to Section 3.6, 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. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under the laws of
the United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or such Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
___________________________
As Trustee,
By:__________________________________
As Authenticating Agent
By:__________________________________
Authorized Officer
ARTICLE 7
Holders' List and Reports by Trustee and Company
Section 7.1. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of the date
of such list, 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 excluding from any such list names and addresses
received by the Trustee in its capacity as Security Registrar.
Section 7.2. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 7.1 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so furnished.
(b) If three or more Holders of Securities of any series
(herein referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned
a Security of such series for a period of at least six months preceding the
date of such application, and such application states that the applicants
desire to communicate with other Holders of such series or with Holders of
all other series of Securities with respect to their rights under this
Indenture or under such Securities and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to transmit,
then the Trustee shall, within five business days after the receipt of such
application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 7.2(a), or
(ii) inform such applicants as to the approximate
number of Holders of such series of Securities or Holders of
all other series of Securities whose names and addresses
appear in the information preserved at the time by the
Trustee in accordance with Section 7.2(a), and as to the
approximate cost of mailing to the Holders of such series of
Securities or the Holders of all series of Securities the
form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of such series of Securities or of all series
of Securities or of all series of Securities whose name and address appear in
the information preserved at the time by the Trustee in accordance with
Section 7.2(a) a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing
would be contrary to the best interest of the relevant Holders or would be in
violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting
their application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 7.2(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 7.2(b).
Section 7.3. Reports by Trustee.
(a) If required under Section 313(a) of the Trust Indenture
Act, within 60 days after April 1 of each year commencing with the year
1999, so long as any of the Securities are outstanding, the Trustee shall
transmit by mail to all Holders, as provided in subsection (c) of this
Section 7.3, a brief report dated as of such April 1 with respect to any of
the following events which may have occurred within the previous 12 months
(but if no such event has occurred within such period no report need by
transmitted):
(i) any change to its eligibility under Section 6.9 or the
creation of or any material change to its qualifications under
Section 6.8;
(ii) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) which
remain unpaid on the date of such report, and for the
reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on any property or
funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not
more than one-half of one percent of the principal amount of
the Securities Outstanding of such series on the date of
such report;
(iii) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other
obligor on the Securities) to the Trustee in its individual
capacity, on the date of such report, with a brief
description of any property held as collateral security
therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section
6.13(b)(ii),(iii),(iv) or (vi);
(iv) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the
date of such report;
(v) any additional issue of Securities which the Trustee
has not previously reported; and
(vi) any action taken by the Trustee in the performance
of its duties hereunder which it has not previously reported
and which in its opinion materially affects the Securities,
except action in respect of a default, notice of which has
been or is to be withheld by the Trustee in accordance with
Section 6.2.
(b) The Trustee shall transmit by mail to all Holders, as
provided in subsection (c) of this Section, a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to Subsection (a) of
this Section (or if no such report has yet been so transmitted, since the date
of execution of this instrument) for the reimbursement of which it claims or
may claim a lien or charge, prior to that of the Securities, on property or
funds held or collected by it as Trustee and which it has not previously
reported pursuant to this Subsection, except that the Trustee shall not be
required (but may elect) to report such advances if such advances remaining
unpaid at any time aggregate 10% or less of the principal amount of the
Securities Outstanding of such series at such time, such report to be
transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted
by mail:
(i) to all Holders of Securities, as the names and
addresses of such Holders appear in the Security Register as
of a date not more than fifteen days prior to the mailing
thereof;
(ii) to such holders of Securities of any series as
have, within two years preceding such transmission, filed
their names and addresses with the Trustee for such series
for that purpose; and
(iii) except in the case of reports pursuant to
subsection (b) of this Section, to all Holders of Securities
whose names and addresses have been received by the Trustee
pursuant to Section 7.1.
(d) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
Section 7.4. Reports by Company.
The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it shall file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(c) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the filing
thereof with the Trustee, to such Holders of Securities as have, within the
two years preceding such transmission, filed their names and addresses with
the Trustee for that purpose and Holders of securities whose names and
addresses have been furnished to or received by the Trustee pursuant to
Section 7.2(a) such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (a) and (b) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(a) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any State thereof or
the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest on all the Securities and the performance
of every covenant of this Indenture on the part of the Company to be performed
or observed;
(b) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or a
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing;
(c) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or
such successor Person, as the case may be, shall take such steps as shall be
necessary effectively to secure the Securities equally and ratably with (or
prior to) all indebtedness secured thereby; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
comply with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 8.2. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.1, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as
if such successor Person had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved
of all obligations and covenants under this Indenture and the Securities.
ARTICLE 9
Supplemental Indentures
Section 9.1. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(b) 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; or
(c) to add any additional Events of Default for the benefit
of the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are expressly
being included solely for the benefit of such series) or to surrender any
right or power herein conferred upon the Company; or
(d) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or permit or facilitate
the issuance of Securities in uncertificated form; or
(e) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination shall (A) shall neither (i)
apply to Securities of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor
(ii) modify the rights of the Holder of such Securities with respect to
such provision or (B) shall become effective only when there is no such
Security Outstanding; or
(f) to secure the Securities pursuant to the requirements of
Sections 8.1(c) or 10.8 or otherwise; or
(g) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Securities
of one or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for and facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 6.11(b); or
(i) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions
arising under this Indenture; provided such action shall not adversely
affect the interests of the Holders of Securities of any series in any
material respect.
Section 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture voting as one class, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under the Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2,
or change any Place of Payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(c) modify any of the provisions of this Section, Section
5.13 or Section 10.10, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 10.10, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11(b) and 9.1(h).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not
to affect the rights under this Indenture of the Holders of Securities of any
other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.3. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
Section 9.6. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE 10
Covenants
Section 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series
of Securities that it will duly and punctually pay the principal of and any
premium or interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section 10.2. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series may
be presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to
the Trustee and the Holders of the location, and any change in the location,
of such office or agency. 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 and surrenders of Securities of that
series and 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, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designation; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee and the Holders of any such designation or rescission and of any
change in the location of any such other office or agency.
Section 10.3. Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date
of the principal of and any premium or interest on any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and any premium or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the principal of
any premium or interest on any Securities of that Series, deposit with a Paying
Agent a sum sufficient to pay the principal and any premium or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal
of and any premium or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the making of
any payment of principal and any premium or interest on the Securities of
that series; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of and any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal and any premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 10.4. Corporate Existence.
Subject to Article 8, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and that the loss thereof is not disadvantageous in any material respect to
the Holders.
Section 10.5. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiary, and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
Section 10.6. Limitations on Liens.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, issue, assume, guarantee or become liable for any notes, bonds,
debentures or other similar evidences of indebtedness for money borrowed
(herein referred to for purposes of this Section 10.6 as "indebtedness")
secured by any mortgage, security interest, pledge or lien (herein referred to
for purposes of this Section 10.6 as a "mortgage") of or upon (x) any
Principal Domestic Manufacturing Plant or (y) shares of capital stock or
indebtedness issued by any Restricted Subsidiary and owned by the Company or
any Restricted Subsidiary, whether owned at the date of this Indenture or
thereafter acquired, without making effective provision, and the Company in
each case will make or cause to be made effective provision, whereby the
Securities shall be secured by such mortgage equally and ratably with (or prior
to) any and all other indebtedness thereby secured, so long as such
indebtedness shall be so secured (for the purpose of providing such equal and
ratable security the principal amount of the Securities shall mean and shall
not be less than that principal amount that could be declared to be due and
payable pursuant to Section 5.2 on the date of the making of such effective
provision and the extent of such equal and ratable security shall be adjusted
semi-annually to reflect the change in said principal amount over time
pursuant to Section 5.2 and any other provision hereof); provided, however,
that the foregoing restriction shall not apply to indebtedness secured by any
of the following:
(i) mortgages on any property existing at the time of
acquisition thereof or as of the date of first issuance by
the Company of Securities pursuant to this Indenture;
(ii) mortgages on property of a corporation existing at
the time such corporation is acquired (including by way of
merger or consolidation) by the Company or a Restricted
Subsidiary or a Restricted Subsidiary is merged into such
corporation or at the time of a sale, lease or other
disposition of the properties of such corporation (or a
division thereof) as an entirety or substantially as an
entirety to the Company or a Restricted Subsidiary, provided
that such mortgages as a result of such merger,
consolidation, sale, lease or other disposition is not
extended to property owned by the Company or such Restricted
Subsidiary immediately prior thereto;
(iii) mortgages on property of a corporation existing at
the time such corporation first becomes a Restricted
Subsidiary;
(iv) mortgages securing indebtedness of a Wholly-Owned
Restricted Subsidiary to the Company or to a Wholly-Owned
Restricted Subsidiary;
(v) mortgages on property to secure all or part of the
cost of acquiring, substantially repairing or altering,
constructing, developing or substantially improving all or
any part of such property or to secure indebtedness incurred
to provide funds for any such purpose or for reimbursement
of funds previously expended for any such purpose, provided
the commitment of the creditor to extend the credit secured
by any such mortgage shall have been obtained not later than
180 days after the later of (a) the completion of the
acquisition, substantial repair or alteration, construction,
development or substantial improvement of such property or
(b) the placing in operation of such property or of such
property as so substantially repaired or altered,
constructed, developed or substantially improved;
(vi) mechanic's liens, tax liens, liens in favor of any
governmental body to secure progress, advance or other
payments or the acquisition of real or personal property
from such governmental body pursuant to any contract or
provision of any statute, and other liens, charges and
encumbrances incidental to construction, to the conduct of
business or to the ownership of property of the Company or
any Restricted Subsidiary which were not incurred in
connection with the borrowing of money or the obtaining of
advances or credits or the acquisition of property and do
not in the aggregate materially impair the use of any
Principal Domestic Manufacturing Plant for the purposes for
which it is held or which are being contested in good faith
by the Company or such Restricted Subsidiary;
(vii) mortgages arising by reason of any judgment,
decree or order of any court, so long as any appropriate
legal proceedings which may have been initiated for the
review of such judgment, decree or order shall not have been
finally terminated or so long as the period within which
such proceedings may be initiated shall not have expired;
any deposit or pledge with any surety company or clerk of
any court, or in escrow, as collateral in connection with,
or in lieu of, may bond on appeal from any judgment or
decree against the Company or any Restricted Subsidiary, or
in connection with other proceedings or actions at law or in
equity by or against the Company or any Subsidiary; or
(viii) any extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole
or in part, of any mortgage referred to in the foregoing
Clauses (i) to (vii), inclusive; provided, however, that the
principal amount of indebtedness secured thereby and not
otherwise authorized by said Clauses (i) to (vii),
inclusive, shall not exceed the principal amount of
indebtedness, plus any premium or fee payable in connection
with any such extension renewal or replacement, so secured
at the time of such extension, renewal or replacement.
(b) Notwithstanding the provisions of Section 10.6(a), the
Company or any Restricted Subsidiary may issue, assume, guarantee or become
liable for indebtedness secured by mortgages which would otherwise be
subject to the restrictions of Section 10.6(a) in an aggregate amount
which, together with all indebtedness outstanding pursuant to this Section
10.6(b), does not exceed 10% of Consolidated Net Tangible Assets.
Section 10.7. Limitations on Sale and Lease-Back Transactions.
(a) The Company will not, nor will it permit any Restricted
Subsidiary to, enter into any Sale and Lease-Back Transaction on or after the
initial issuance of Securities pursuant to this Indenture with respect to any
Principal Domestic Manufacturing Plant (except for (1) a transaction providing
for a lease for a term, including any renewal thereof, of not more than three
years, (2) a transaction between the Company and a Wholly-Owned Restricted
Subsidiary or between Wholly-Owned Restricted Subsidiaries or (3) any lease
of property acquired after the date of the initial issuance of Securities
pursuant to this Indenture if the rent payable by the Company or such
Restricted Subsidiary thereunder is to be reimbursed under a contract with the
government of the United States or any instrumentality or agency thereof), if
the commitment by or on behalf of the purchaser is obtained more than 180 days
after the later of (i) the completion of the acquisition, substantial repair or
alteration, construction, development or substantial improvement of such
Principal Domestic Manufacturing Plant or (ii) the placing in operation of such
Principal Domestic Manufacturing Plant or of such Principal Domestic
Manufacturing Plant as so substantially repaired or altered, constructed,
developed or substantially improved, unless either (x) the Company or such
Restricted Subsidiary would be entitled pursuant to Section 10.6(a) to issue,
assume, guarantee or become liable for debt secured by a mortgage on such
Principal Domestic Manufacturing Plant without equally and ratably securing
the Securities or (y) the Company shall apply or cause to be applied, in the
case of a sale or transfer for cash, an amount equal to the net proceeds
thereof (but not in excess of the net book value of such sale or transfer)
and, in the case of a sale or transfer otherwise than for cash, an amount
equal to the fair market value (as determined by the Board of Directors but
not in excess of the net book value of such Principal Domestic Manufacturing
Plant at the date of such sale or transfer) of the Principal Domestic
Manufacturing Plant so leased to the retirement, within 180 days after the
effective date of such Sale and Lease-Back Transaction, of Securities or other
indebtedness of the Company or a Restricted Subsidiary; provided, however,
that any such retirement of Securities shall be in accordance with Section
11.1 and provided, further, that the amount to be applied to such retirement
of Securities or other indebtedness shall be reduced by an amount equal to the
sum of (A) an amount equal to the principal amount of Securities delivered
within 180 days after the effective date of such Sale and Lease-Back
Transaction to the Trustees for retirement and cancellation (for purposes of
making such calculation, the principal amount of Original Issue Discount
Securities so retired or cancelled shall mean the portion thereof that could
have been declared due and payable pursuant to Section 5.2 at the time retired
and cancelled) and (B) the principal amount, plus any premium or fee paid in
connection with any redemption in accordance with the terms, of other
indebtedness voluntarily retired by the Company within such 180-day period,
excluding retirements pursuant to mandatory prepayment provisions and payments
at maturity.
(b) Notwithstanding the provisions of Section 10.7(a), the
Company or any Restricted Subsidiary may enter into a Sale and Lease-Back
Transaction which would otherwise be subject to the restrictions of Section
10.7(a) so as to create an aggregate amount of attributable debt which,
together with all indebtedness outstanding pursuant to Section 10.6(b), and
all attributable debt outstanding pursuant to this Section 10.7(b), does
not exceed 10% of Consolidated Net Tangible Assets. "Attributable debt" in
respect of any Sale and Lease-Back Transaction means, as of the time of the
determination, the lesser of (i) the sale price of the Principal Domestic
Manufacturing Plant so leased multiplied by a fraction the numerator of
which is the remaining portion of the base term of the lease included in
such transaction and the denominator of which is the base term of such
lease, and (ii) the total obligation (discounted to present value at the
implicit interest factor, determined in accordance with generally accepted
financial practice, included in the rental payments, or, if such interest
factor cannot readily be determined, at a rate of interest of 11% per
annum, compounded semiannually) under the lease for rental payments (other
than amounts required to be paid on account of property taxes as well as
maintenance, repairs, insurance, water rates and other items which do not
constitute payments for property rights (such as those based on real or
energy costs or savings) during the remaining portion of the base term of
the lease included in such transaction).
Section 10.8. Defeasance of Certain Obligations.
Unless otherwise specified pursuant to Section 3.1 with respect
to Securities of any series, the Company may omit to comply, on or after the
date the conditions set forth in subsections (a) to (f) of this Section 10.8
are satisfied, with any term, provision or condition set forth in Section 10.6
and Section 10.7, with respect to the Securities of such series, and with any
term, provision or condition set forth in any additional negative or
restrictive covenant of the Company (other than those contained in this
Indenture) applicable to the Securities of such series (hereafter called
"Covenant Defeasance") as specified pursuant to Section 3.1(q)), if
(a) With reference to this Section 10.8, the Company has
irrevocably deposited or caused to be irrevocably deposited with the Trustee
as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of the Securities of that series, (i) money in an amount, or (ii)
U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide not
later than one day before the due date of any payment referred to in clause
(A) or (B) of this subparagraph (1) money in an amount, or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee for such purposes (A) the principal of and any premium and each
instalment of principal and any (premium) and interest on the Outstanding
Securities of that series on the Stated Maturity or the Redemption Date, as
the case may be, of such principal or instalment of principal or interest and
(B) any mandatory sinking fund payments or analogous payments applicable to
Securities of such series on the day on which such payments are due and
payable each in accordance with the terms of the Indenture and of such
Securities;
(b) Such Covenant Defeasance shall not cause the Trustee with
respect to the Securities of that series to have a conflicting interest as
defined in Section 6.8 and for purposes of the Trust Indenture Act with
respect to the Securities of any series;
(c) Such Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it is
bound;
(d) No Event of Default or event which with notice or lapse
of time would become an Event of Default with respect to Securities of that
series shall have occurred and be continuing on the date of such deposit;
(e) The Company has delivered to the Trustee an Opinion of
Counsel stating that (A) Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result
of such deposit and Covenant Defeasance and will be subject to Federal
income tax on the same amount and in the same manner and at the same times,
as would have been the case if such deposit and Covenant Defeasance had not
occurred; (B) such Covenant Defeasance would not cause any outstanding
Security of such series then listed on any nationally recognized securities
exchange to be delisted as a result thereof; and (C) such deposit would not
result in the trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act of 1940, as
amended from time to time; and
(f) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated by
this Section have been complied with.
Section 10.9. Certificate of Officers of the Company.
On or before the last day of April of each year beginning with
the year 1999, the Company will file with the Trustee an Officers' Certificate
stating whether or not to the best knowledge of the signers 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. For purposes of this paragraph, any such
default shall be delivered without regard to any period of grace or
requirement of notice provided in this Indenture.
Section 10.10. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 10.4 to 10.7,
inclusive, with respect to the Securities of any series if before the time for
such compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect
such term, provisions 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.
ARTICLE 11
Redemption of Securities
Section 11.1. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 3.1 for Securities of any
series) in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date, of the tenor, if applicable, of the Securities to be
redeemed, and of the principal amount of Securities of such series to be
redeemed. 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 such restriction.
Section 11.3. Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities of any series are to be
redeemed (unless all of the Securities of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof)
of the principal amount of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that series. If
less than all of the Securities of such series and of a specified tenor are to
be redeemed, the particular Securities to be redeemed shall be selected not
more than 45 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously
called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or is
to be redeemed.
Section 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date to each Holder of Securities to be redeemed, at this address appearing in
the Security Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said
date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(f) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and
shall be irrevocable. The notice of redemption mailed in the manner herein
provided shall be conclusively presumed to have been duly given whether or not
the Holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the Holder of any Security shall not
affect the validity of the proceeding for the redemption of any other Security.
Section 11.5. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.
Section 11.6. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption Price
and accrued interest), such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of
Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 11.7. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge to the Holder, a new Security or
Securities of the same series and of like tenor, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Security
so surrendered.
ARTICLE 12
Sinking Funds
Section 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 3.1 for Securities of such series.
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 12.2. 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 12.2. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which 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 as provided for by the terms of such
Series; provided that the Securities to be so credited have not been previously
so credited. The Securities to be so credited shall be received and credited
for such purpose by the Trustee at the Redemption Price, as specified in the
Securities to be so redeemed, for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.3. Redemption of Securities for Sinking Fund.
Not less than 60 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 such Securities, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.2 stating that such
Securities have not been previously used as a credit against any sinking fund
payment and will also 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 11.3 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 11.4. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 11.5, 11.6 and 11.7.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunder affixed and attested, all as of the day and year first above written.
PITNEY XXXXX INC.
By _______________________________
By _______________________________
Attest:
_______________________________
SUNTRUST BANK, ATLANTA
By _______________________________
[Title]
By _______________________________
[Title]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of __________, 1998, before me personally came
____________________________ and ______________________, to me known, who,
being by me duly sworn, did depose and say that they are Treasurer and Vice
President and Chief Financial Officer, respectively, of PITNEY XXXXX INC., one
of the corporations described in and which executed the foregoing instrument;
that each knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that each signed their names
thereto by like authority.
_______________________________
STATE OF GEORGIA )
) ss.:
COUNTY OF XXXXXX )
On the _________ day of ______________, 1998, before me personally
came __________________ and ______________, to me known, who, being by me duly
sworn, did depose and say that they are the ________________ and
_______________ [title, respectively] of SunTrust Bank, Atlanta, one of the
corporations described in and which executed the foregoing instrument; that
they know the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that they signed their names
thereto by like authority.
_______________________________
EXHIBIT A
FORM OF SECURITY
Form of Face of Security
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, 00 XXXXX XXXXXX, XXX XXXX, XXX
XXXX (THE "U.S. DEPOSITARY"), TO PITNEY XXXXX INC. OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE U.S. DEPOSITARY (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE U.S. DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[THIS SECURITY IS A SECURITY IN PERMANENT GLOBAL FORM AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
PITNEY XXXXX INC.
[Title of Security]
No. .... $ .....
Pitney Xxxxx Inc., a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to .............................., or
registered assigns, the principal sum of ................................
Dollars on ..........................., and to pay interest thereon from
....... or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on ....... and ....... in each
year, commencing ....., at the rate of ..% per annum, until the principal
hereof is paid or made available for payment [If applicable, insert --, and
(to the extent that the payment of such interest shall be legally enforceable)
at the rate of ..% per annum on any overdue principal and premium and on any
overdue installment of interest]. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the .... or ....
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be
fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all
as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest
on this Security will be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
PITNEY XXXXX INC.
By _______________________________
Attest:
_______________________________
Trustee's Certificate of Authentication
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
_________________________________
as Trustee
By_______________________________
Authorized Officer
Form of Reverse of Security
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in
one or more series under an Indenture, dated as of April ____, 1998 (herein
called the "Indenture"), between the Company and SunTrust Bank, Atlanta, as
Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof [, limited in aggregate
principal amount to $......].
[If applicable, insert--The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, [if
applicable, insert--(1) on ........... in any year commencing with the year
......... and ending with the year .............. through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [ on or after .........., 19....], as a
whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount): If redeemed [on or
before .......... .., ....%, and if redeemed] during the 12-month period
beginning ............... of the years indicated,
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to ....% of the principal amount,
together in the case of any such redemption [if applicable, insert--(whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert--The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, (1) on
.......... in any year commencing with the year ...... and ending with the
year ...... through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after ..........], as a whole or in part, at
the election of the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12
month period beginning ............ of the years indicated,
Redemption Price For
Redemption Price Redemption Otherwise
For Redemption Than Through
Through Operation Operation of the
Year of the Sinking Fund Sinking Fund
and thereafter at a Redemption Price equal to ....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
.......... redeem any Securities of this series as contemplated by [Clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than ....% per annum.]
[The sinking fund for this series provides for the redemption
on ...... in each year beginning with the year .......... and ending with the
year ......... of [not less than] $......... [("mandatory sinking fund") and
not more than $............] aggregate principal amount of Securities of this
series. [Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments otherwise required to be
made--in the inverse order in which they become due.]
[In the event of redemption of this Security in part only, a
new Security or Securities of this series for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.]
[The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness of this Security and (b) certain restrictive
covenants, in each case upon compliance by the Company with certain conditions
set forth therein, which provisions apply to this Security.]
[If the Security is not an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.]
[If the Security is an Original Issue Discount Security, insert
-- If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to -- insert formula
for determining the amount. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal,
premium and interest (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the Company's obligations in
respect of the payment of the principal of and premium and interest, if any,
on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount
of the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a receiver
or trustee or for any other remedy thereunder, unless such Holder shall have
previously given the Trustee written notice of a continuing Event of Default
with respect to the Securities of this series, the Holders of not less than
25% in principal amount of the Securities of this series at the time
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have received from the
Holders of a majority in principal amount of Securities of this series at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security herein provided, and at the
times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of (and premium, if any) and interest on this Security are payable,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $.... and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
EXHIBIT B
Form of Trustee's Certificate of Authentication
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
SunTrust Bank, Atlanta
as Trustee
By_______________________________
Authorized Officer
