Exhibit 4.4
2002 Guaranteed Indenture
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ARAMARK Services, Inc. as Issuer
and
ARAMARK Corporation, as Guarantor
Bank One Trust Company, National Association, as Trustee
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Indenture
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Dated as of March __, 2002
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Table of Contents
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01. Definitions........................................................... 1
Section 1.02. Compliance Certificates and Opinions.................................. 9
Section 1.03. Form of Documents Delivered to Trustee................................ 10
Section 1.04. Notices, etc., to Trustee and Company................................. 10
Section 1.05. Notice to Holders; Waiver............................................. 11
Section 1.06. Conflict with Trust Indenture Act..................................... 11
Section 1.07. Effect of Headings and Table of Contents.............................. 11
Section 1.08. Successors and Assigns................................................ 11
Section 1.09. Separability Clause................................................... 12
Section 1.10. Benefits of Indenture................................................. 12
Section 1.11. Governing Law......................................................... 12
Section 1.12. Legal Holidays........................................................ 12
Section 1.13. No Security Interest Created.......................................... 12
Section 1.14. Liability Solely Corporate............................................ 12
ARTICLE TWO
DEBT SECURITY FORMS
Section 2.01. Forms Generally....................................................... 13
Section 2.02. Form of Trustee's Certificate of Authentication....................... 13
Section 2.03. Securities in Global Form............................................. 14
ARTICLE THREE
THE DEBT SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series.................................. 14
Section 3.02. Denominations......................................................... 18
Section 3.03. Execution, Authentication, Delivery and Dating........................ 18
Section 3.04. Temporary Debt Securities; Global Notes Representing
Registered Securities............................................... 20
Section 3.05. Registration, Transfer and Exchange................................... 22
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities................. 24
Section 3.07. Payment of Interest; Interest Rights Preserved........................ 24
Section 3.08. Cancellation.......................................................... 26
Section 3.09. Computation of Interest............................................... 26
Section 3.10. Currency of Payments in Respect of Debt Securities.................... 26
Section 3.11. Judgments............................................................. 29
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Section 3.12. Exchange Upon Default................................................. 30
Section 3.13. CUSIP and ISN Numbers................................................. 30
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture............................... 32
Section 4.02. Application of Trust Money............................................ 33
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default..................................................... 33
Section 5.02. Acceleration of Maturity; Rescission and Annulment.................... 35
Section 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee.......................................................... 36
Section 5.04. Trustee May File Proofs of Claim...................................... 36
Section 5.05. Trustee May Enforce Claims Without Possession of Debt
Securities.......................................................... 37
Section 5.06. Application of Money Collected........................................ 38
Section 5.07. Limitation on Suits................................................... 38
Section 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest................................................ 39
Section 5.09. Restoration of Rights and Remedies.................................... 39
Section 5.10. Rights and Remedies Cumulative........................................ 39
Section 5.11. Delay or Omission Not Waiver.......................................... 39
Section 5.12. Control by Holders.................................................... 40
Section 5.13. Waiver of Past Defaults............................................... 40
Section 5.14. Undertaking for Costs................................................. 40
Section 5.15. Waiver of Stay or Extension Laws...................................... 41
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities................................... 41
Section 6.02. Notice of Defaults.................................................... 42
Section 6.03. Certain Rights of Trustee............................................. 43
Section 6.04. Not Responsible for Recitals or Issuance of Debt Securities........... 44
Section 6.05. May Hold Debt Securities.............................................. 44
Section 6.06. Money Held in Trust................................................... 44
Section 6.07. Compensation and Reimbursement........................................ 44
Section 6.08. Disqualification; Conflicting Interests............................... 45
Section 6.09. Corporate Trustee Required; Eligibility............................... 50
Section 6.10. Resignation and Removal; Appointment of Successor..................... 50
Section 6.11. Acceptance of Appointment by Successor................................ 52
Section 6.12. Merger, Conversion, Consolidation or Succession to Business........... 53
Section 6.13. Preferential Collection of Claims Against Company..................... 53
Section 6.14. Appointment of Authenticating Agent................................... 57
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders............. 58
Section 7.02. Preservation of Information; Communication to Holders................. 59
Section 7.03. Reports by Trustee.................................................... 60
Section 7.04. Reports by Company.................................................... 62
ARTICLE EIGHT
CONCERNING THE HOLDERS
Section 8.01. Acts of Holders....................................................... 63
Section 8.02. Proof of Ownership; Proof of Execution of Instruments
by Holder........................................................... 63
Section 8.03. Persons Deemed Owners................................................. 63
Section 8.04. Revocation of Consents; Future Holders Bound.......................... 64
ARTICLE NINE
HOLDERS' MEETINGS
Section 9.01. Purposes of Meetings.................................................. 64
Section 9.02. Call of Meetings by Trustee........................................... 64
Section 9.03. Call of Meetings by Company or Holders................................ 65
Section 9.04. Qualifications for Voting............................................. 65
Section 9.05. Regulations........................................................... 65
Section 9.06. Voting................................................................ 66
Section 9.07. No Delay of Rights by Meeting......................................... 66
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 10.01. Company May Consolidate, etc., Only on Certain Terms................. 66
Section 10.02. Successor Corporation Substituted.................................... 67
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of Holders................... 67
Section 11.02. Supplemental Indentures With Consent of Holders...................... 69
Section 11.03. Execution of Supplemental Indentures................................. 70
Section 11.04. Effect of Supplemental Indentures.................................... 70
Section 11.05. Conformity with Trust Indenture Act.................................. 70
Section 11.06. Reference in Debt Securities to Supplemental Indentures.............. 70
Section 11.07. Notice of Supplemental Indenture..................................... 70
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ARTICLE TWELVE
COVENANTS
Section 12.01. Payment of Principal, Premium and Interest........................... 71
Section 12.02. Officer's Certificate as to Default.................................. 71
Section 12.03. Maintenance of Office or Agency...................................... 71
Section 12.04. Money for Debt Securities; Payments To Be Held in Trust.............. 72
Section 12.05. Corporate Existence.................................................. 73
Section 12.06. Waiver of Certain Covenants.......................................... 73
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
Section 13.01. Applicability of Article............................................. 74
Section 13.02. Election to Redeem; Notice to Trustee................................ 74
Section 13.03. Selection by Trustee of Debt Securities to Be Redeemed............... 74
Section 13.04. Notice of Redemption................................................. 75
Section 13.05. Deposit of Redemption Price.......................................... 76
Section 13.06. Debt Securities Payable on Redemption Date........................... 76
Section 13.07. Debt Securities Redeemed in Part..................................... 76
ARTICLE FOURTEEN
SINKING FUNDS
Section 14.01. Applicability of Article............................................. 77
Section 14.02. Satisfaction of Mandatory Sinking Fund Payments with
Debt Securities.................................................... 77
Section 14.03. Redemption of Debt Securities for Sinking Fund....................... 77
ARTICLE FIFTEEN
DEFEASANCE
Section 15.01. Applicability of Article............................................. 79
Section 15.02. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations............................................. 79
Section 15.03. Deposited Moneys and U.S. Government, Obligations to Be
Held in Trust...................................................... 81
Section 15.04. Repayment to Company................................................. 82
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Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of __________, 2002
Trust Indenture Act Section Indenture Section
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Sec. 310 (a)(1)........................................ 6.09
(a)(2)........................................ 6.09
(a)(3)........................................ Not Applicable
(a)(4)........................................ Not Applicable
(a)(5)........................................ 6.09
(b)........................................... 6.08, 6.10
(c)........................................... Not Applicable
Sec. 311 (a)........................................... 6.13(a)
(b)........................................... 6.13(b)
(c)........................................... Not Applicable
Sec. 312 (a)........................................... 7.01, 7.02(a)
(b)........................................... 7.02(b)
(c)........................................... 7.02(c)
Sec. 313 (a)........................................... 7.03(a)
(b)........................................... 7.03(b)
(c)........................................... 7.03(a),
7.03(c)
(d)........................................... 7.03(d)
Sec. 314 (a)........................................... 7.04, 12.02
(b)........................................... Not Applicable
(c)(1)........................................ 1.02
(c)(2)........................................ 1.02
(c)(3)........................................ Not Applicable
(d)........................................... Not Applicable
(e)........................................... 1.02
Sec. 315 (a)........................................... 6.01(a),
6.01(c)
(b)........................................... 6.02,
7.03(a)(7)
(c)........................................... 6.01(b)
(d)(1)........................................ 6.01(a)
(d)(2)........................................ 6.01(c)(2)
(d)(3)........................................ 6.01(c)(3)
(e)........................................... 5.14
Sec. 316 (a)(1)(A)..................................... 5.02, 5.12
(a)(1)(B)..................................... 5.13
(a)(2)........................................ Not Applicable
(b)........................................... 5.08
(c)........................................... Not Applicable
Sec. 317 (a)(1)........................................ 5.03
(a)(2)........................................ 5.04
(b)........................................... 12.04
Sec. 318 .............................................. 1.06
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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INDENTURE dated as of March __, 2002, among ARAMARK Services, Inc.,
a Delaware corporation (hereinafter called the "Company"), having its principal
executive office at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000,
ARAMARK Corporation, a Delaware Corporation (the "Guarantor"), and Bank One
Trust Company, National Association (hereinafter called the "Trustee"), having
its Corporate Trust Office at 0 Xxxx Xxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
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 debentures,
notes, bonds or other evidences of indebtedness (herein generally called the
"Debt Securities"), to be issued in one or more series, as in this Indenture
provided.
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the issuance of Guarantees with respect to the Debt
Securities.
All things necessary have been done to make this Indenture a valid
agreement of the Company and the Guarantor, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Debt Securities or of Debt
Securities of any series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01. Definitions.
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For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles or as provided with respect to any series of Debt Securities,
and, except as otherwise herein provided or as provided with respect to
any series of Debt Securities, the term "generally accepted accounting
principles" or "GAAP" with respect to any computation required or
permitted hereunder with respect to any series of Debt Securities, shall
mean such as set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as have been approved by a
significant segment of the accounting profession of the United States
which are in effect as of the issuance date of such series of Debt
Securities; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Three or Article Six, are defined in
those respective Articles.
"Act" when used with respect to any Holder, has the meaning
specified in Section 8.01.
"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" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with") as used
with respect to any Person means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise.
"Authenticating Agent" has the meaning specified in Section 6.14.
"Board of Directors" means either the board of directors of the
Company or the Guarantor, as the context requires, or any committee of
that board duly authorized to act hereunder or any director or directors
and/or officer or officers of the Company or the Guarantor, as the context
requires, to whom that board or committee shall have delegated its
authority.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or the Guarantor, as
the case may be, 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 or any
other particular location referred to in this Indenture or in the Debt
Securities means any day which is not a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies in that
Place of Payment or other location are authorized or obligated by law to
close, except as otherwise specified pursuant to Section 3.01.
"Capital Stock" means: (i) in the case of a corporation, corporate
stock (however designated); (ii) in the case of an association or business
entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock; (iii) in the case of
a partnership or limited liability company, partnership or
2
membership interests (whether general or limited); and (iv) any other
interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the
issuing Person.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, as amended, or
if at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman of the
Board, Chief Executive Officer, the President, the Chief Financial Officer
or a Vice President and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Component Currency" has the meaning specified in Section 3.10(h).
"Conversion Date" has the meaning specified in Section 3.10(d).
"Conversion Event" means the cessation of (i) a Foreign Currency to
be used both by the government of the country which issued such Currency
and for the settlement of transactions by public institutions of or within
the international banking community or (ii) any Currency unit to be used
for the purposes for which it was established.
"Corporate Trust Office" means the principal corporate trust office
of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of
this instrument is located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
"Currency" means Dollars or Foreign Currency.
"Currency Determination Agent" means the agent, if any, from time to
time selected by the Company for purposes of Section 3.10; provided that
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such agent shall accept such appointment in writing and shall, in the
opinion of the Company at the time of such appointment, require such agent
to make the determinations required by this Indenture by a method
consistent with the method provided in this Indenture for the making of
such decision or determination.
.
3
"Debt Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Debt Securities (including
any Global Notes) authenticated and delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Debt Securities of any
series issuable or issued in the form of one or more Global Notes, the
Person designated as Depositary by the Company pursuant to Section 3.01
until a successor Depositary shall have become Depositary pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder, and if at
any time there is more than one such Person, "Depositary" as used with
respect to the Debt Securities of any such series shall mean the
Depositary with respect to the Global Notes of that series.
"Discharged" has the meaning specified in Section 15.02.
"Discount Security" means any Debt Security which is issued with
"original issue discount" within the meaning of Section 1273(a) of the
Code (or any successor provision) and the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time of payment is legal tender
for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified
in Section 3.10(g).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 3.10(f).
"Election Date" has the meaning specified in Section 3.10(h).
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Rate Officer's Certificate" means a telex or a certificate
setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar,
Foreign Currency or Currency unit amounts of principal, premium, if any,
and any interest respectively (on an aggregate basis and on the basis of a
Debt Security having the lowest denomination principal amount determined
in accordance with Section 3.02 in the relevant Currency or Currency
unit), payable on the basis of such Market Exchange Rate sent (in the case
of a telex) or signed (in the case of a certificate) by the Treasurer or
any Assistant Treasurer of the Company.
"Fixed Rate Security" means a Debt Security which provides for the
payment of interest at a fixed rate.
4
"Floating Rate Security" means a Debt Security which provides for
the payment of interest at a variable rate determined periodically by
reference to an interest rate index or any other index specified pursuant
to Section 3.01.
"Foreign Currency" means any coin, currency, currency unit or
composite currency, including, without limitation, the euro, issued by the
government of one or more countries other than the United States, or by
any internationally recognized union, confederation or association of such
governments.
"Global Note" means with respect to any series of Debt Securities
issued hereunder, a Debt Security (in either temporary or permanent form)
which is executed by the Company and authenticated and delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction, all
in accordance with this Indenture and any indentures supplemental hereto,
or resolution of the Board of Directors and set forth in an Officer's
Certificate, which shall be registered in the name of the Depositary or
its nominee and which shall represent, and shall be denominated in an
amount equal to the aggregate principal amount of, all the Outstanding
Debt Securities of such series or any portion thereof, in either case
having the same terms, including, without limitation, the same original
issue date, date or dates on which principal is due and interest rate or
method of determining interest.
"Guarantees" means the guarantees of the Guarantor to be endorsed on
the Debt Securities authenticated and delivered hereunder.
"Guarantor" means ARAMARK Corporation, a Delaware Corporation and
its successors and assigns.
"Holder," "Holder of Debt Securities" or other similar terms means,
with respect to a Debt Security, the Registered Holder.
"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, unless the context otherwise requires, shall include the terms
of a particular series of Debt Securities as established pursuant to
Section 3.01.
The term "interest," when used with respect to a Discount Security
which by its terms bears interest only on a certain date, means interest
payable after such date.
"Interest Payment Date" with respect to any Debt Security means the
Stated Maturity of an installment of interest on such Debt Security.
"Market Exchange Rate" means the noon Dollar buying rate in The City
of New York for cable transfers of such currency or currencies as
published by the Federal Reserve Bank of New York as of the most recent
available date. If such Market Exchange Rate is not available for any
reason with respect to such currency, the Currency Determination Agent
shall use, in its sole discretion and without liability on its part, such
quotation of the Federal Reserve Bank of New York or, quotations from one
or more
5
major banks in The City of New York or in the country of issue or the
currency in question, which for purposes of the euro shall be any member
state of the European Union that has adopted the euro, as the Currency
Determination Agent shall deem appropriate.
"Maturity" when used with respect to any Debt Security means the
date on which the principal of such Debt Security or an installment of
principal becomes due and payable as therein or herein or in a
supplemental indenture provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, repayment, or repurchase
at the option of the Holder thereof or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, Chief Executive Officer, the President, the Chief Financial
Officer or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Controller, an Assistant Controller, the Secretary or an Assistant
Secretary of the Company or the Guarantor, as the context requires and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel to the Company or the Guarantor (including an employee of the
Company or the Guarantor), as the context requires, and who shall be
satisfactory to the Trustee, which is delivered to the Trustee.
"Outstanding" when used with respect to Debt Securities, means, as
of the date of determination, all Debt Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities for whose redemption money in the necessary
amount has been theretofor 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 Debt Securities; provided, however, that if such Debt
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 and the date for such redemption has passed; and
(iii) Debt Securities which have been paid pursuant to Section 3.06
or in exchange for or in lieu of which other Debt Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Debt Securities in respect of which there shall have been presented
to the Trustee proof satisfactory to it that such Debt Securities are held
by a bona fide purchaser in whose hands such Debt Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the
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requisite principal amount of Debt Securities Outstanding have performed
any Act hereunder, Debt Securities owned by the Company or any other
obligor upon the Debt Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to
6
be Outstanding (provided, that in connection with any offer by the Company
or any obligor to purchase Debt Securities, Debt Securities rendered by a
Holder shall be Outstanding until the date of purchase), except that, in
determining whether the Trustee shall be protected in relying upon any
such Act, only Debt Securities which the Trustee knows to be so owned
shall be so disregarded. Debt 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 to act with respect to
such Debt Securities and that the pledgee is not the Company or any other
obligor upon the Debt Securities or any Affiliate of the Company or of
such other obligor. In determining whether the Holders of the requisite
principal amount of Outstanding Debt Securities have performed any Act
hereunder, the principal amount of a Discount Security that shall be
deemed to be Outstanding for such purpose shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02 and the principal amount of a Debt Security
denominated in a Foreign Currency that shall be deemed to be Outstanding
for such purpose shall be the amount calculated pursuant to Section
3.10(j).
"Overdue Rate" when used with respect to any series of the Debt
Securities, means the rate designated as such in or pursuant to the Board
Resolution or the supplemental indenture, as the case may be, relating to
such series as contemplated by Section 3.01.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities on
behalf of the Company.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company,
trust, estate, unincorporated organization or government or any agency or
political subdivision thereof or any other entity.
"Place of Payment" when used with respect to the Debt Securities of
any series means the place or places where the principal of (and premium,
if any) and interest on the Debt Securities of that series are payable as
specified pursuant to Section 3.01.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as
that evidenced by such particular Debt Security; and, for the purposes of
this definition, any Debt Security authenticated and delivered under
Section 3.06 in lieu of a mutilated, lost, destroyed or stolen Debt
Security shall be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Debt Security.
"Redemption Date" when used with respect to any Debt Security to be
redeemed, means the date fixed for redemption by or pursuant to this
Indenture, including pursuant to the Board Resolution or supplemental
indenture relating to such Debt Security as contemplated by Section 3.01.
7
"Redemption Price" means, in the case of a Discount Security, the
amount of the principal thereof that would be due and payable as of the
Redemption Date upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, and in the case of any other Debt Security, the
principal amount thereof, plus, in each case, premium, if any, and accrued
and unpaid interest, if any, to the Redemption Date.
"Registered Holder" means the Person in whose name a Registered
Security is registered in the Security Register.
"Registered Security" means any Debt Security in the form
established pursuant to Section 2.01 which is registered as to principal
and interest in the Security Register.
"Regular Record Date" for the interest payable on the Registered
Securities of any series on any Interest Payment Date means the date
specified for the purpose pursuant to Section 3.01 for such Interest
Payment Date.
"Responsible Officer" when used with respect to the Trustee means
officer of the Trustee assigned by the Trustee to administer corporate
trust matters and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
or her knowledge of and familiarity with the particular subject.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05(a).
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.07.
"Specified Amount" has the meaning specified in Section 3.10(h).
"Stated Maturity" when used with respect to any Debt Security or any
installment of principal thereof or premium thereon or interest thereon
means the date specified in such Debt Security, as the date on which the
principal of such Debt Security or such installment of principal, premium
or interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association, or other business entity (other than a partnership) of which
more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time of
determination owned or controlled, directly or indirectly, by such Person
or one or more of the other Subsidiaries of that Person or a combination
thereof and (ii) any partnership of which more than 50% of the
partnership's capital accounts, distribution rights or general or limited
partnership interests are owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that Person or a
combination thereof.
"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
8
who is then a Trustee hereunder, and if at any time there is more than one
such Person, "Trustee" as used with respect to the Debt Securities of any
series shall mean the Trustee with respect to Debt Securities of such
series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
amended and as in force at the date as of which this instrument was
executed, and, to the extent required by law, as amended.
"United States" means the United States of America (including the
States and the District of Columbia), and its possessions, which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
"U.S. Government Obligations" has the meaning specified in Section
15.02.
"Valuation Date" has the meaning specified in Section 3.10(c).
"Vice President" includes with respect to the Company, the Guarantor
and the Trustee, any Vice President of the Company, the Guarantor or the
Trustee, as the case may be, whether or not designated by a number or word
or words added before or after the title "Vice President."
Section 1.02. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company or the Guarantor to
the Trustee to take any action under any provision of this Indenture, the
Company or the Guarantor, as the case may be, 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 (other than certificates
provided pursuant to Section 12.02) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
9
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. 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 or the
Guarantor 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 or the Guarantor, as the case may be, stating that the information with
respect to such factual matters is in the possession of the Company or the
Guarantor, as the case may be, 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 1.04. Notices, etc., to Trustee and Company.
-------------------------------------
Any Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or Guarantor shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Department, or
(2) the Company or Guarantor 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
or airmail postage prepaid if sent from outside the United States, to the
Company or Guarantor, as the case may be, addressed to it at the address
of its principal office specified in the first paragraph of this
instrument, to the attention of its Treasurer, or at any other address
previously furnished in writing to the Trustee by the Company or
Guarantor.
Any such Act or other document shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
10
Section 1.05. Notice to Holders; Waiver.
-------------------------
When this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given to Registered Holders (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to such Registered Holders as their names and addresses appear in the
Security Register, within the time prescribed; provided, however, that, in any
case, any notice to Holders of Floating Rate Securities regarding the
determination of a periodic rate of interest, if such notice is required
pursuant to Section 3.01, shall be sufficiently given if given in the manner
specified pursuant to Section 3.01.
In the event of suspension of regular mail service or by reason of
any other cause it shall be impracticable to give notice by mail, such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance on such waiver. 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, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given. In any case
where notice to Holders is given by publication, any defect in any notice so
published as to any particular Holder shall not affect the sufficiency of such
notice with respect to other Holders, and any notice which is published in the
manner herein provided shall be conclusively presumed to have been duly given.
Section 1.06. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with the
duties imposed on any Person by the provisions of Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 1.07. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 1.08. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the parties hereto
shall bind their respective successors and assigns and inure to the benefit of
their permitted successors and assigns, whether so expressed or not.
11
Section 1.09. Separability Clause.
-------------------
In case any provision in this Indenture or in the Debt Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 1.10. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Debt Securities, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder, and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Governing Law.
-------------
This Indenture and the Debt Securities shall be governed by and
construed in accordance with the laws of the State of New York.
Section 1.12. Legal Holidays.
--------------
Unless otherwise specified pursuant to Section 3.01 or in any Debt
Security, in any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debt Security of any series shall not be a Business Day at any
Place of Payment for the Debt Securities of that series, then (notwithstanding
any other provision of this Indenture or of the Debt Securities) payment of
principal (and premium, if any) or interest need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date or at the Stated Maturity, and no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be, to such
Business Day if such payment is made or duly provided for on such Business Day.
Section 1.13. No Security Interest Created.
----------------------------
Nothing in this Indenture or in the Debt Securities, express or
implied, shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in
effect in any jurisdiction where property of the Company, the Guarantor or their
Subsidiaries is or may be located.
Section 1.14. Liability Solely Corporate.
--------------------------
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on any Debt Securities, or any part thereof, or
of the indebtedness represented thereby, or upon any obligation, covenant or
agreement of this Indenture, against any incorporator, or against any
stockholder, officer or director, as such, past, present or future, of the
Company or the Guarantor (or any incorporator, stockholder, officer or director
of any predecessor or successor corporation), either directly or through the
Company or the Guarantor (or any such predecessor or successor corporation),
whether by virtue of any constitution, statute
12
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly agreed and understood that this Indenture and all the Debt
Securities are solely corporate obligations, and that no personal liability
whatsoever shall attach to, or be incurred by, any such incorporator,
stockholder, officer or director, past, present or future, of the Company or the
Guarantor (or any incorporator, stockholder, officer or director of any such
predecessor or successor corporation), either directly or indirectly through the
Company or the Guarantor or any such predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants, promises or agreements contained in this Indenture
or in any of the Debt Securities or to be implied herefrom or therefrom; and
that any such personal liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the execution of this
Indenture and the issue of Debt Securities; provided, however, that nothing
herein or in the Debt Securities contained shall be taken to prevent recourse to
and the enforcement of the liability, if any, of any stockholder or subscriber
to capital stock upon or in respect of the shares of capital stock not fully
paid.
ARTICLE TWO
DEBT SECURITY FORMS
Section 2.01. Forms Generally.
---------------
The Debt Securities of each series shall be substantially in one of
the forms (including global form) established in or pursuant to a Board
Resolution of the Company or one or more indentures supplemental hereto, and
shall have 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 or designation and such
legends or endorsements placed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which any
series of the Debt Securities may be listed, or to conform to usage, all as
determined by the officers executing such Debt Securities as conclusively
evidenced by their execution of such Debt Securities. If the form of a series of
Debt Securities (or any Global Note) is established in or pursuant to a Board
Resolution of the Company, a copy of such Board Resolution shall be delivered to
the Trustee, together with an Officers' Certificate setting forth the form of
such series, at or prior to the delivery of the Company Order contemplated by
Section 3.03 for the authentication and delivery of such Debt Securities (or any
such Global Note).
The definitive Debt Securities of each series shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Debt Securities, as conclusively evidenced by
their execution of such Debt Securities.
Section 2.02. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The form of the Trustee's certificate of authentication to be borne
by the Debt Securities shall be substantially as follows:
13
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Debt Securities issued under the within
mentioned Indenture.
Bank One Trust Company,
National Association, as Trustee
By __________________________
Authorized Signatory
Section 2.03. Securities in Global Form.
-------------------------
If any Debt Security of a series is issuable in global form (a
"Global Note"), such Global Note may provide that it shall represent the
aggregate amount of Outstanding Debt Securities from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Debt
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Global Note to reflect the amount, or any
increase or decrease in the amount, of Outstanding Debt Securities represented
thereby shall be made by the Trustee and in such manner as shall be specified in
such Global Note. Any instructions by the Company with respect to a Global Note,
after its initial issuance, shall be in writing but need not comply with Section
1.02.
Global Notes may be issued in either temporary or permanent form.
Permanent Global Notes will be issued in definitive form.
ARTICLE THREE
THE DEBT SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution of the Company and (subject
to Section 3.03) set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of Debt Securities of
any series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of such series from all other series of
Debt Securities);
(2) the aggregate principal amount of such series of Debt Securities
and any limit on the aggregate principal amount of the Debt Securities of
the series which may be
14
authenticated and delivered under this Indenture (except for Debt
Securities authenticated and delivered upon transfer of, or in exchange
for, or in lieu of, other Debt Securities of such series pursuant to
Sections 3.04, 3.05, 3.06, 11.06 or 13.07);
(3) the percentage of the principal amount at which the Debt
Securities of such series will be issued and, if other than the principal
amount thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of the maturity or upon redemption thereof or
the method by which such portion shall be determined.
(4) the date or dates on which or periods during which the Debt
Securities of the series may be issued, and the date or dates or the
method by which such date or dates will be determined, on which the
principal of (and premium, if any, on) the Debt Securities of such series
are or may be payable (which, if so provided in such Board Resolution of
the Company or supplemental indenture, may be determined by the Company
from time to time as set forth in the Debt Securities of the series issued
from time to time);
(5) the rate or rates (which may be variable or fixed) at which the
Debt Securities of the series shall bear interest, if any, or the method
by which such rate or rates shall be determined, the date or dates from
which such interest, if any, shall accrue or the method by which such date
or dates shall be determined (which, in either case or both, if so
provided in such Board Resolution or supplemental indenture, may be
determined by the Company from time to time and set forth in the Debt
Securities of the series issued from time to time); and the Interest
Payment Dates on which such interest shall be payable (or the method of
determination thereof), and the Regular Record Dates, if any, for the
interest payable on such Interest Payment Dates and the notice, if any, to
Holders regarding the determination of interest, the manner of giving such
notice, the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months and any conditions or
contingencies as to the payment of interest in cash or otherwise, if any;
(6) the place or places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee, where the principal of (and
premium, if any) and interest on Debt Securities of the series shall be
payable; the extent to which, or the manner in which, any interest payable
on any Global Note on an Interest Payment Date will be paid, if other than
in the manner provided in Section 3.07; and the manner in which any
principal of, or premium, if any, on, any Global Note will be paid, if
other than as set forth elsewhere herein and whether any Global Note will
require any notation to evidence payment of principal or interest;
(7) the obligation, if any, of the Company to redeem, repay,
purchase, repurchase or offer to purchase Debt Securities of the series
pursuant to any mandatory redemption, sinking fund, required offer to
purchase or analogous provisions or upon other conditions or at the option
of the Holder thereof and the period or periods within which or the dates
on which, the prices at which and the terms and conditions upon which the
Debt Securities of the series shall be redeemed, repaid, purchased,
repurchased or offered to be purchased, in whole or in part, pursuant to
such obligation;
15
(8) the right, if any, of the Company to redeem the Debt Securities
of such series at its option and the period or periods within which, or
the date or dates on which, the price or prices at which, and the terms
and conditions upon which such Debt Securities may be redeemed, if any, in
whole or in part, at the option of the Company or otherwise;
(9) if the Currency in which the Debt Securities shall be issuable
is in Dollars, the denominations of such Debt Securities if other than
denominations of $1,000 and any integral multiple thereof (except as
provided in Section 3.04);
(10) whether the Debt Securities of the series are to be issued as
Discount Securities and the amount of discount with which such Debt
Securities may be issued and, if other than the principal amount thereof,
the portion of the principal amount of Debt Securities of the series which
shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.02;
(11) provisions, if any, for satisfaction of the Debt Securities or
the defeasance or discharge of certain of the Company's obligations with
respect to Debt Securities of the series;
(12) whether provisions for payment of additional amounts or tax
redemptions shall apply and, if such provisions shall apply, such
provisions;
(13) if other than Dollars, the Foreign Currency or Currencies in
which Debt Securities of the series shall be denominated or in which
payment of the principal of (and premium, if any) and interest on the Debt
Securities of the series may be made, and the particular provisions
applicable thereto and, if applicable, the amount of Debt Securities of
the series which entitles the Holder of a Debt Security of the series or
its proxy to one vote for purposes of Section 9.05;
(14) if the principal of (and premium, if any) or interest on Debt
Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a Currency other than that in which the Debt
Securities are denominated or payable without such election, in addition
to or in lieu of the provisions of Section 3.10, the period or periods
within which and the terms and conditions upon which, such election may be
made and the time and the manner of determining the exchange rate or rates
between the Currency or Currencies in which the Debt Securities are
denominated or payable without such election and the Currency or
Currencies in which the Debt Securities are to be paid if such election is
made;
(15) the date as of which any Debt Securities of the series shall be
dated, if other than as set forth in Section 3.03;
(16) if the amount of payments of principal of (and premium, if any)
or interest on the Debt Securities of the series may be determined with
reference to an index, including, but not limited to, an index based on a
Currency or Currencies other than that in which the Debt Securities are
denominated or payable, or any other type of index, the manner in which
such amounts shall be determined;
16
(17) if the Debt Securities of the series are denominated or payable
in a Foreign Currency, any other terms concerning the payment of principal
of (and premium, if any) or any interest on such Debt Securities
(including the Currency or Currencies of payment thereof);
(18) the designation of the original Currency Determination Agent,
if any;
(19) the applicable Overdue Rate, if any;
(20) if the Debt Securities of the series do not bear interest, the
applicable dates for purposes of Section 7.01;
(21) any addition to, or modification or deletion of, any Events of
Default or covenants provided for with respect to Debt Securities of the
series;
(22) whether the Debt Securities of the series shall be issued in
whole or in part in the form of one or more Global Notes and, in such
case, the Depositary for such Global Note or Notes; and if the Debt
Securities of the series are issuable only as Registered Securities, the
manner in which and the circumstances under which Global Notes
representing Debt Securities of the series may be exchanged for Registered
Securities in definitive form, if other than, or in addition to, the
manner and circumstances specified in Section 3.04(b);
(23) the designation, if any, of any depositaries, trustees (other
than the applicable Trustee), Paying Agents, Authenticating Agents,
Security Registrars (other than the Trustee) or other agents with respect
to the Debt Securities of such series;
(24) if the Debt Securities of such series will be issuable in
definitive form only upon receipt of certain certificates or other
documents or upon satisfaction of certain conditions, the form and terms
of such certificates, documents or conditions;
(25) the portion of the principal amount of the Debt Securities
which will be payable upon declaration of acceleration of the maturity
thereof, if other than the principal amount thereof;
(26) the terms of subordination of the Debt Securities or the
Guarantee of the series;
(27) the terms and provisions of the Guarantee if such terms and
provisions differ from those set forth herein;
(28) the nature, content and date for reports by the Company or the
Guarantor, as the case may be, to the holders of the Offered Debt
Securities;
(29) any change in the right of the Trustee or the Holders to
declare the principal of, and premium and interest on, such Debt
Securities due and payable; and
17
(30) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially
identical except as to denomination, rate of interest, Stated Maturity and the
date from which interest, if any, shall accrue, which, as set forth above, may
be determined by the Company from time to time as to Debt Securities of a series
if so provided in or established pursuant to the authority granted in a Board
Resolution of the Company or in any such indenture supplemental hereto, and
except as may otherwise be provided in or pursuant to such Board Resolution and
(subject to Section 3.03) set forth in such Officers' Certificate, or in any
such indenture supplemental hereto. All Debt Securities of any one series need
not be issued at the same time, and unless otherwise provided, a series may be
reopened for issuance of additional Debt Securities of such series.
If any of the terms of a series of Debt Securities is established in
or pursuant to a Board Resolution, a copy of such Board Resolution 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 3.02. Denominations.
-------------
In the absence of any specification pursuant to Section 3.01 with
respect to the Debt Securities of any series, the Debt Securities of such series
shall be issuable only as Registered Securities in denominations of $1,000 and
any integral multiple thereof and shall be payable only in Dollars.
Section 3.03. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Debt Securities of any series shall be executed on behalf of the
Company by its Chairman of the Board, Chief Executive Officer, Chief Financial
Officer, President, one of its Vice Presidents or its Treasurer, under its
corporate seal reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers may be manual or
facsimile.
Debt Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Debt
Securities or did not hold such offices at the date of such Debt Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Debt Securities, of any series,
executed by the Company, having endorsed thereon Guarantees duly executed by the
Guarantor, to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Debt Securities and the Trustee in
accordance with the Company Order shall authenticate and deliver such Debt
Securities. If all the Debt Securities of any one series are not to be issued at
one time and if a Board Resolution or supplemental indenture relating to such
series shall so permit, such Company Order may set forth procedures acceptable
to the Trustee for the issuance of such Debt Securities such as interest rate,
Stated Maturity, date of issuance and date from which interest, if
18
any, shall accrue. If any Debt Security shall be represented by a permanent
Global Note, then, for purposes of this Section and Section 3.04, the notation
of a beneficial owner's interest therein upon original issuance of such Debt
Security or upon exchange of a portion of a temporary Global Note shall be
deemed to be delivery in connection with the original issuance of such
beneficial owner's interest in such permanent Global Note.
The Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, prior to the authentication and
delivery of the Debt Securities of such series, (i) the supplemental indenture
or the Board Resolution by or pursuant to which the form and terms of such Debt
Securities have been approved, (ii) an Officer's Certificate and (Iii) an
Opinion of Counsel substantially to the effect that:
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Debt Securities
conform to the requirements of this Indenture and constitute sufficient
authority hereunder for the Trustee to authenticate and deliver such Debt
Securities;
(2) the forms and terms of such Debt Securities have been
established in conformity with the provisions of this Indenture;
(3) in the event that the forms or terms of such Debt Securities
have been established in a supplemental indenture, the execution and
delivery of such supplemental indenture has been duly authorized by all
necessary corporate action of the Company, such supplemental indenture has
been duly executed and delivered by the Company and, assuming the
supplemental indenture is the valid and binding obligation of the Trustee,
is a valid and binding obligation enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and subject to
general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law) and subject to such other exceptions
as counsel shall request and as to which the Trustee shall not reasonably
object;
(4) the execution and delivery of such Debt Securities have been
duly authorized by all necessary corporate action of the Company and such
Debt Securities have been duly executed by the Company and, assuming due
authentication by the Trustee and delivery by the Company, are valid and
binding obligations enforceable against the Company in accordance with
their terms, entitled to the benefit of the Indenture, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles
of equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and subject to such other exceptions as counsel shall
request and as to which the Trustee shall not reasonably object; and
(5) the amount of Debt Securities Outstanding of such series,
together with the amount of such Debt Securities, does not exceed any
limit established under the terms of this Indenture on the amount of Debt
Securities of such series that may be authenticated and delivered.
19
The Trustee shall not be required to authenticate such Debt
Securities if the issuance of such Debt Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the Debt
Securities and this Indenture in a manner which is not reasonably acceptable to
the Trustee.
Each Registered Security shall be dated the date of its
authentication.
No Debt Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Debt Security a certificate of authentication substantially in one of the forms
provided for herein duly executed by the Trustee or by an Authenticating Agent,
and such certificate upon any Debt Security shall be conclusive evidence, and
the only evidence, that such Debt Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Debt Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 3.08 together with a written statement (which need not
comply with Section 1.02) stating that such Debt Security has never been issued
and sold by the Company, for all purposes of this Indenture such Debt Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
Section 3.04. Temporary Debt Securities; Global Notes Representing
----------------------------------------------------
Registered Securities.
----------------------
(a) Pending the preparation of definitive Registered Securities of
any series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Registered Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination for Registered Securities of such series, substantially of the
tenor of the definitive Registered Securities in lieu of which they are issued,
and having endorsed thereon Guarantees duly executed by the Guarantor
substantially of the tenor of the definitive Guarantees, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Registered Securities and such Guarantees may determine,
as conclusively evidenced by their execution of such Registered Securities and
such Guarantees. Every such temporary Registered Security shall be executed by
the Company and shall be authenticated and delivered by the Trustee upon the
same conditions and in substantially the same manner, and with the same effect,
as the definitive Registered Securities in lieu of which they are issued.
If temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series, of a like Stated Maturity and with
like terms and provisions, upon surrender of the temporary Debt Securities of
such series at the office or agency of the Company in a Place of Payment for
such series, without charge to the Holder, except as provided in Section 3.05 in
connection with a transfer. Upon surrender for cancellation of any one or more
temporary Debt Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like
20
principal amount of definitive Debt Securities of the same series of authorized
denominations and of a like Stated Maturity and like terms and provisions and
having endorsed thereon Guarantees duly executed by the Guarantor. Until so
exchanged, the temporary Registered Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Registered Securities of such series.
(b) If the Company shall establish pursuant to Section 3.01 that the
Registered Securities of a series are to be issued in whole or in part in the
form of one or more Global Notes, then the Company shall execute and the Trustee
shall, in accordance with Section 3.03 and the Company Order with respect to
such series, authenticate and deliver one or more Global Notes in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Debt Securities of
such series to be represented by one or more Global Notes, (ii) shall be
registered in the name of the Depositary for such Global Note or Notes or the
nominee of such depositary, (iii) shall be delivered by the Trustee or delivered
or held pursuant to such Depositary's instruction, and (iv) shall bear a legend
substantially to the following effect: "This Debt Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary, unless and until this Debt Security is
exchanged in whole or in part for Debt Securities in definitive form."
Each Depositary designated pursuant to Section 3.01 must, at the
time of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Exchange Act and any other applicable
statute or regulation.
Notwithstanding any other provision of this Section or Section 3.05,
unless and until a Global Note is exchanged in whole or in part for Registered
Securities in definitive form, a Global Note representing all or a portion of
the Registered Securities of a series may not be transferred except as a whole
by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor depositary.
If at any time the Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Debt Securities of such series or if at any time the Depositary for Debt
Securities of a series shall no longer be a clearing agency registered and in
good standing under the Exchange Act or other applicable statute or regulation
(as required by this Section 3.04), the Company shall appoint a successor
Depositary eligible under this Section 3.04 with respect to the Debt Securities
of such series. If a successor Depositary for the Debt Securities of such series
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series, will authenticate and deliver,
Registered Securities of such series in definitive form in an aggregate
principal amount equal to the principal amount of the Global Note or Notes
representing such series in exchange for such Global Note or Notes.
21
The Company may at any time and in its sole discretion determine
that the Registered Securities of any series issued in the form of one or more
Global Notes shall no longer be represented by such Global Note or Notes. In
such event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
If the Registered Securities of any series shall have been issued in
the form of one or more Global Notes and if an Event of Default with respect to
the Debt Securities of such series shall have occurred and be continuing, the
Company will promptly execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
If specified by the Company pursuant to Section 3.01 with respect to
Registered Securities of a series, the Depositary for such series of Registered
Securities may surrender a Global Note for such series of Debt Securities in
exchange in whole or in part for Registered Securities of such series in
definitive 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 charge:
(i) to each Person specified by the Depositary a new Registered
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 Note; and
(ii) to the Depositary a new Global Note in a denomination equal to
the difference, if any, between the principal amount of the surrendered
Global Note and the aggregate principal amount of Registered Securities
delivered to Holders thereof.
Upon the exchange of a Global Note for Registered Securities in
definitive form, such Global Note shall be cancelled by the Trustee. Debt
Securities issued in exchange for a Global Note pursuant to this subsection (b)
shall be registered in such names and in such authorized denominations as the
U.S. Depositary for such Global Note, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debt Securities to the Persons in whose names such Debt
Securities are so registered.
Section 3.05. Registration, Transfer and Exchange.
-----------------------------------
(a) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the registers 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 Registered Securities and of transfers and exchanges of
22
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and registering transfers and
exchanges of Registered Securities as herein provided; provided, however, that
-------- -------
the Company may at its option appoint co-Security Registrars.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained for
such purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, one or more new Registered
Securities of the same series of like aggregate principal amount of such
denominations as are authorized for Registered Securities of such series and of
a like Stated Maturity and with like terms and conditions, each such Registered
Security having endorsed thereon a Guarantee duly executed by the Guarantor.
Except as otherwise provided in Section 3.04 and this Section 3.05,
at the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of like aggregate
principal amount and of a like Stated Maturity and with like terms and
conditions, each such Registered Security having endorsed thereon a Guarantee
duly executed by the Guarantor, upon surrender of the Registered Securities to
be exchanged at such office or agency. Whenever any Registered Securities are
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities (having Guarantees duly
endorsed thereon) which the Holder making the exchange is entitled to receive.
(b) All Debt Securities issued upon any transfer or exchange of Debt
Securities, and the Guarantees endorsed thereon, shall be valid obligations of
the Company, and the Guarantor, respectively, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Debt Securities and
the Guarantees surrendered for such transfer or exchange.
Every Registered Security presented or surrendered for transfer or
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 will be made for any transfer or exchange of Debt
Securities except as provided in Section 3.06. 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, transfer or exchange of Debt
Securities, other than those expressly provided in this Indenture to be made at
the Company's own expense or without expense or without charge to the Holders.
The Company shall not be required (i) to register, transfer or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before the day of the transmission of a notice of redemption
of Debt Securities of such series selected for redemption under Section 13.03
and ending at the close of business on the day of such transmission, or (ii) to
register, transfer or exchange any Debt Security so selected for redemption in
whole or in part, except the unredeemed portion of any Debt Security being
redeemed in part.
23
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities.
-----------------------------------------------------
If (i) any mutilated Debt Security is surrendered to the Trustee at
its Corporate Trust Office, or (ii) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Debt Security,
and there is delivered to the Company and the Trustee such security or indemnity
as may be required by them to save each of them and any Paying Agent harmless,
and neither the Company nor the Trustee receives notice that such Debt Security
has been acquired by a bona fide purchaser, then the Company shall execute and
upon Company Request the Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Debt Security, a new
Debt Security of the same series of like Stated Maturity and with like terms and
conditions and like principal amount, having endorsed thereon a Guarantee duly
executed by the Guarantor, bearing a number not contemporaneously used with
respect to any Debt Securities Outstanding.
In case any such mutilated, destroyed, lost or stolen Debt Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Debt Security, pay the amount due on such Debt
Security in accordance with its terms.
Upon the issuance of any new Debt Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debt Security of any series issued pursuant to this
Section shall constitute an original additional contractual obligation of the
Company and the Guarantor, respectively, whether or not the destroyed, lost or
stolen Debt Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Debt Securities of 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 Debt Securities.
Section 3.07. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
(a) Interest on any Registered 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 such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest notwithstanding the cancellation of such Registered Security
upon any transfer or exchange subsequent to the Regular Record Date. Unless
otherwise specified as contemplated by Section 3.01 with respect to the Debt
Securities of any series, payment of interest on Registered Securities shall be
made at the place or places specified pursuant to Section 3.01 or, at the option
of the Company, by check payable to the Person entitled thereto mailed to the
address of such Person as such address appears in the Security Register or, if
provided pursuant to Section 3.01, by wire transfer to an account designated by
the Registered Holder.
24
(b) Any interest on any Debt Security which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") shall, if such Debt Security is a Registered Security,
forthwith cease to be payable to the Registered Holder on the relevant Regular
Record Date by virtue of his having been such Registered Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each such Registered Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money in the Currency or Currency unit in which the Debt Securities of
such series are payable (except as otherwise specified pursuant to
Sections 3.01 or 3.10) 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 date 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 the Holders of such Registered Securities at their
addresses as they appear 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 mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Registered Securities (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 (2).
(2) The Company may make payment of any Defaulted Interest on
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered
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.
(c) Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debt Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debt Security.
25
Section 3.08. Cancellation.
------------
Unless otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, all Debt Securities surrendered for payment,
redemption, transfer, exchange or credit against any sinking fund shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Registered Securities so delivered shall be promptly cancelled by the
Trustee. The Company may at any time deliver to the Trustee for cancellation any
Debt Securities previously authenticated and delivered hereunder which the
Company or the Guarantor 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 Debt Securities previously authenticated hereunder which the
Company has not issued, and all Debt Securities so delivered shall be promptly
cancelled by the Trustee. No Debt Securities shall be authenticated in lieu of
or in exchange for any Debt Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Debt Securities
held by the Trustee shall be delivered to the Company upon Company Request. The
acquisition of any Debt Securities by the Company or the Guarantor shall not
operate as a redemption or satisfaction of the indebtedness represented thereby
unless and until such Debt Securities are surrendered to the Trustee for
cancellation. Permanent Global Notes shall not be destroyed until exchanged in
full for definitive Debt Securities or until payment thereon is made in full.
Section 3.09. Computation of Interest.
-----------------------
Except as otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.10. Currency of Payments in Respect of Debt Securities.
--------------------------------------------------
(a) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, except as
provided in paragraph (d) below, payment of the principal of (and premium, if
any) and any interest on any Registered Security of such series will be made in
the Currency in which such Registered Security is payable.
(b) It may be provided pursuant to Section 3.01 with respect to the
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of (and
premium, if any) and any interest on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustee a written election, to be in form and substance satisfactory to the
Trustee, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect for such
Holder or any transferee of such Holder until changed by such Holder or such
transferee by written notice to the Trustee (but any such change must be made
not later than the close of business on the Election Date immediately preceding
the next payment date to be effective for the payment to be made on such payment
date and no such change or election may be made with respect to payments to be
made on any Registered Security of such series with respect to which an Event of
Default has occurred or notice of redemption has
26
been given by the Company pursuant to Article Thirteen). Any Holder of any such
Registered Security who shall not have delivered any such election to the
Trustee by the close of business on the applicable Election Date will be paid
the amount due on the applicable payment date in the relevant Currency as
provided in paragraph (a) of this Section 3.10.
(c) If the election referred to in paragraph (b) above has been
provided for pursuant to Section 3.01, then not later than the fourth Business
Day after the Election Date for each payment date, the Trustee will deliver to
the Company a written notice specifying the Currency in which such series of the
Registered Securities is payable, the respective aggregate amounts of principal
of (and premium, if any) and any interest on the Registered Securities to be
paid on such payment date, specifying the amounts so payable in respect of the
Registered Securities as to which the Holders of Registered Securities
denominated in any Currency shall have elected to be paid in another Currency as
provided in paragraph (b) above. If the election referred to in paragraph (b)
above has been provided for pursuant to Section 3.01 and if at least one Holder
has made such election, then, on the second Business Day preceding each payment
date, the Company will deliver to the Trustee an Exchange Rate Officer's
Certificate in respect of the Currency payments to be made on such payment date.
The Currency amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the third Business Day (the "Valuation Date") immediately preceding
each payment date.
(d) If a Conversion Event occurs with respect to a Foreign Currency
or any other Currency unit in which any of the Debt Securities are denominated
or payable other than pursuant to an election provided for pursuant to paragraph
(b) above, then with respect to each date for the payment of principal of (and
premium, if any) and any interest on the applicable Debt Securities denominated
or payable in such Foreign Currency or such other Currency unit occurring after
the last date on which such Foreign Currency, or such other Currency unit was
used (the "Conversion Date"), the Dollar shall be the Currency of payment for
use on each such payment date. The Dollar amount to be paid by the Company to
the Trustee and by the Trustee or any Paying Agent to the Holders of such Debt
Securities with respect to such payment date shall be the Dollar Equivalent of
the Foreign Currency or, in the case of a Currency unit, the Dollar Equivalent
of the Currency Unit, in each case as determined by the Currency Determination
Agent in the manner provided in paragraph (f) or (g) below.
(e) If the Holder of a Registered Security denominated in any
Currency shall have elected to be paid in another Currency as provided in
paragraph (b) above, and a Conversion Event occurs with respect to such elected
Currency, such Holder shall receive payment in the Currency in which payment
would have been made in the absence of such election. If a Conversion Event
occurs with respect to the Currency in which payment would have been made in the
absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (d) of this Section 3.10.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Currency Determination Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
27
(g) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Currency Determination Agent and, subject to the provisions of paragraph
(h) below, shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.10 the following terms shall have
the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component Currency of the relevant Currency unit.
A "Specified Amount" of a Component Currency shall mean the number
of units of such Component Currency or fractions thereof which were
represented in the relevant Currency unit on the Conversion Date. If after
the Conversion Date the official unit of any Component Currency is altered
by way of combination or subdivision, the Specified Amount of such
Component Currency shall be divided or multiplied in the same proportion.
If after the Conversion Date two or more Component Currencies are
consolidated into a single Currency, the respective Specified Amounts of
such Component Currencies shall be replaced by an amount in such single
Currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single Currency, and
such amount shall thereafter be a Specified Amount and such single
Currency shall thereafter be a Component Currency. If after the Conversion
Date any Component Currency shall be divided into two or more Currencies,
the Specified Amount of such Component Currency shall be replaced by
amounts of such two or more Currencies with appropriate Dollar equivalents
at the Market Exchange Rate on the date of such replacement equal to the
Dollar equivalent of the Specified Amount of such former Component
Currency at the Market Exchange Rate on such date, and such amounts shall
thereafter be Specified Amounts and such Currencies shall thereafter be
Component Currencies. If after the Conversion Date of the relevant
Currency unit a Conversion Event (other than any event referred to above
in this definition of "Specified Amount") occurs with respect to any
Component Currency of such Currency unit, the Specified Amount of such
Component Currency shall, for purposes of calculating the Dollar
Equivalent of the Currency Unit, be converted into Dollars at the Market
Exchange Rate in effect on the Conversion Date of such Component Currency.
"Election Date" shall mean the record date with respect to any
payment date, and with respect to the Maturity shall mean the record date
(if within 16 or fewer days prior to the Maturity) immediately preceding
the Maturity, and with respect to any series of Debt Securities whose
record date immediately preceding the Maturity is more than 16 days prior
to the Maturity or any series of Debt Securities for which no record dates
are provided with respect to interest payments, shall mean the date which
is 16 days prior to the Maturity.
(i) All decisions and determinations of the Currency Determination
Agent, if any, regarding the Dollar Equivalent of the Foreign Currency, the
Dollar Equivalent of the Currency Unit and the Market Exchange Rate shall be in
its sole discretion and shall, in the absence of
28
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company and all Holders of the Debt Securities denominated or payable in the
relevant Currency. In the event of a Conversion Event with respect to a Foreign
Currency, the Company, after learning thereof, will immediately give written
notice thereof to the Trustee (and the Trustee will promptly thereafter give
notice in the manner provided in Section 1.05 to the Holders) specifying the
Conversion Date. In the event of a Conversion Event with respect to any Currency
unit in which Debt Securities are denominated or payable, the Company, after
learning thereof, will immediately give notice thereof to the Trustee (and the
Trustee will promptly thereafter give written notice in the manner provided in
Section 1.05 to the Holders) specifying the Conversion Date and the Specified
Amount of each Component Currency on the Conversion Date. In the event of any
subsequent change in any Component Currency as set forth in the definition of
Specified Amount above, the Company, after learning thereof, will similarly give
written notice to the Trustee. The Trustee shall be fully justified and
protected in relying and acting upon information received by it from the Company
and the Currency Determination Agent, if any, and shall not otherwise have any
duty or obligation to determine such information independently.
(j) For purposes of any provision of the Indenture where the Holders
of Outstanding Debt Securities may perform an Act which requires that a
specified percentage of the Outstanding Debt Securities of all series perform
such Act and for purposes of any decision or determination by the Trustee of
amounts due and unpaid for the principal (and premium, if any) and interest on
the Debt Securities of all series in respect of which moneys are to be disbursed
ratably, the principal of (and premium, if any) and interest on the Outstanding
Debt Securities denominated in a Foreign Currency will be the amount in Dollars
based upon the Market Exchange Rate for Debt Securities of such series, as of
the date for determining whether the Holders entitled to perform such Act have
performed it, or as of the date of such decision or determination by the
Trustee, as the case may be.
Section 3.11. Judgments.
---------
If for the purpose of obtaining a judgment in any court with respect
to any obligation of the Company hereunder or under any Debt Security, it shall
become necessary to convert into any other Currency any amount in the Currency
due hereunder or under such Debt Security, then such conversion shall be made at
the Market Exchange Rate as in effect on the date the Company shall make payment
to any Person in satisfaction of such judgment. If pursuant to any such
judgment, conversion shall be made on a date other than the date payment is made
and there shall occur a change between such Market Exchange Rate and the Market
Exchange Rate as in effect on the date of payment, the Company agrees to pay
such additional amounts (if any) as may be necessary to ensure that the amount
paid is equal to the amount in such other Currency which, when converted at the
Market Exchange Rate as in effect on the date of payment or distribution, is the
amount then due hereunder or under such Debt Security. Any amount due from the
Company under this Section 3.11 shall be due as a separate debt and is not to be
affected by or merged into any judgment being obtained for any other sums due
hereunder or in respect of any Debt Security. In no event, however, shall the
Company be required to pay more in the Currency or Currency unit due hereunder
or under such Debt Security at the Market Exchange Rate as in effect when
payment is made than the amount of Currency stated to be due hereunder or under
such Debt Security so that in any event the Company's obligations hereunder or
under such Debt Security will be effectively maintained as obligations in such
Currency, and
29
the Company shall be entitled to withhold (or be reimbursed for, as the case may
be) any excess of the amount actually realized upon any such conversion over the
amount due and payable on the date of payment or distribution.
Section 3.12. Exchange Upon Default.
---------------------
If default is made in the payments referred to in Section 12.01, the
Company hereby undertakes that upon presentation and surrender of a permanent
Global Note to the Trustee (or to any other Person or at any other address as
the Company may designate in writing), on any Business Day on or after the
maturity date thereof the Company will issue and the Trustee will authenticate
and deliver to the Holder of such permanent Global Note duly executed and
authenticated definitive Debt Securities with the same issue date and maturity
date as set out in such permanent Global Note.
Section 3.13. CUSIP and ISN Numbers
---------------------
. The Company in issuing the Debt Securities may use "CUSIP" and
"ISN" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" and "ISN" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
accuracy of such numbers either as printed on the Debt Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Debt Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee in writing of any change in the
"CUSIP" or "ISN" numbers.
Section 3.14. Guarantee of Debt Securities.
----------------------------
The Guarantor hereby unconditionally guarantees to the holder of
each Debt Security of each series authenticated and delivered by the Trustee the
due and punctual payment of the principal (including any amount in respect of
original issue discount) of, and premium, if any, and interest, if any (together
with any additional amounts payable pursuant to the terms of such Debt
Security), on such Debt Security and the due and punctual payment of the sinking
fund payments, if any, and analogous obligations, if any, provided for pursuant
to the terms of such Debt Security, when and as the same shall become due and
payable, whether at maturity or upon redemption or upon declaration of
acceleration or otherwise, according to the terms of such Debt Security and of
this Indenture; provided that if such Debt Security is subordinated in right of
--------
payment to the other indebtedness of the Company, the guarantee shall be
subordinated to the Guarantor's other Indebtedness substantially to the same
extent as such Debt Security is subordinated to such other Indebtedness of the
Company according to the terms of such Debt Security and of this Indenture. The
Guarantor agrees that in case of default by the Company in the payment of any
such principal (including any amount in respect of original issue discount),
premium, interest (together with any additional amounts payable pursuant to the
terms of such Debt Security), sinking fund payment, or analogous obligation, the
Guarantor shall duly and punctually pay the same except as limited by the
proviso in the immediately preceding sentence. The Guarantor hereby agrees that
its obligations hereunder shall be absolute and unconditional irrespective of
any extension of the time for payment of any such Debt Security, any
30
modification of any such Debt Security or the supplemental indenture or Board
Resolution relating thereto, any invalidity, irregularity or unenforceability of
any such Debt Security or this Indenture, any failure to enforce the same or any
waiver, modification, consent or indulgence granted to the Company with respect
thereto by the holder of such Debt Security or the Trustee, or any other
circumstances which may otherwise constitute a legal or equitable discharge of a
surety or guarantor.
The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a demand or proceeding first against the
Company, protest or notice with respect to any such Debt Security or the
indebtedness evidenced thereby and all demands whatsoever, and covenants that
this guarantee will not be discharged as to any such Debt Security except by
payment in full of the principal (including any amount payable in respect of
original issue discount) of, and premium, if any, and interest, if any (together
with any additional amounts payable pursuant to the terms of such Debt
Security), thereon.
The Guarantor irrevocably waives any and all rights to which it may
be entitled, by operation of law or otherwise, upon making any payment hereunder
(i) to be subrogated to the rights of a Holder against the Company with respect
to such payment or otherwise to be reimbursed, indemnified or exonerated by the
Company in respect thereof or (ii) to receive any payment, in the nature of
contribution or for any other reason, from any other obligor with respect to
such payment.
The guarantee set forth in this Section shall not be valid or become
obligatory for any purpose with respect to a Debt Security of any series until
the certificate of authentication on such Debt Security shall have been signed
by the Trustee.
Section 3.15. Execution of Guarantees.
-----------------------
To evidence its guarantee specified in Section 3.14 to the holders
of Debt Securities of any series, the Guarantor hereby agrees to execute the
Guarantees in substantially the form above recited to be endorsed on each Debt
Security of such series authenticated and delivered by the Trustee. Such
Guarantees shall be executed on behalf of the Guarantor by its Chairman of the
Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents. The signature of any of these officers of the Guarantee may be
manual or facsimile.
Guarantees bearing the manual or facsimile signatures of individuals
who were at any time proper officers of the Guarantor shall bind the Guarantor,
notwithstanding that such individuals or any of them have ceased to hold such
office prior to authorization and delivery of the Debt Securities on which such
Guarantees are endorsed or did not hold such office at the date of the Debt
Securities on which such Guarantees are endorsed.
31
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture, with respect to the Debt Securities of any series
(if all series issued under this Indenture are not to be affected), shall, upon
Company Request, cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of such Debt Securities herein
expressly provided for and rights to receive payments of principal (and premium,
if any) and interest on such Debt Securities) and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Debt Securities of such series theretofore authenticated and
delivered (other than (i) Debt Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided
in Section 3.06, and (ii) Debt Securities of such series 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 12.04) have been delivered to the
Trustee for cancellation; or
(B) all Debt Securities of such series not theretofore delivered to
the Trustee for cancellation,
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice by the
Trustee in the name, and at the expense, of the Company,
and the Company or the Guarantor, as the case may be, either complies with any
other condition or terms specified pursuant to Section 3.01, or if not so
specified in the case of (i), (ii) or (iii) of this subclause (B), has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust for such purpose an amount in the Currency in which such Debt
Securities are denominated (except as otherwise provided pursuant to Section
3.01 or 3.10) sufficient to pay and discharge the entire indebtedness on such
Debt Securities for principal (and premium, if any) and interest to the date of
such deposit (in the case of Debt Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be; provided,
--------
however, in the event a petition for relief under the Federal bankruptcy laws,
-------
as now or hereafter constituted, or any other applicable Federal or state
bankruptcy, insolvency or other similar law, is filed with respect to the
Company within 123 days after the deposit and the Trustee is required to return
the deposited money to the Company, the obligations of the Company under this
Indenture with respect to such Debt Securities shall not be deemed terminated or
discharged;
32
(2) the Company or the Guarantor, as the case may be, has paid or
caused to be paid all other sums payable hereunder by the Company;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture with respect to such series have been complied with; and
(4) the Company has delivered to the Trustee an Opinion of Counsel
or a ruling by the Internal Revenue Service to the effect that Holders of
the Debt Securities of the series will not recognize income, gain or loss
for Federal income tax purposes as a result of such deposit and discharge.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company and the Guarantor to the Trustee under Section 6.07,
the obligations of the Trustee to any Authenticating Agent under Section 6.14,
the obligations of the Company under Section 12.01, and, if money shall have
been deposited with the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 12.04, shall survive. If, after the deposit referred to in
Section 4.01 has been made, (x) the Holder of a Debt Security is entitled to,
and does, elect pursuant to Section 3.10(b), to receive payment in a Currency
other than that in which the deposit pursuant to Section 4.01 was made, or (y)
if a Conversion Event occurs with respect to the Currency in which the deposit
was made or elected to be received by the Holder pursuant to Section 3.10(b),
then the indebtedness represented by such Debt Security shall be fully
discharged to the extent that the deposit made with respect to such Debt
Security shall be converted into the Currency in which such payment is made.
Section 4.02. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 12.04,
all money deposited with the Trustee pursuant to Section 4.01 shall be held in
trust and applied by it, in accordance with the provisions of the Debt
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 the Trustee.
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default.
-----------------
"Event of Default" wherever used herein with respect to Debt
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, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
33
(1) default in the payment of any interest upon any Debt Security of
such series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (and premium, if any,
on) any Debt Security of such series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Debt Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company or the Guarantor 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 expressly has
been included in this Indenture solely for the benefit of Debt Securities
of a series other than such series), and continuance of such default or
breach for a period of 60 days after there has been given, by registered
or certified mail, to the Company and the Guarantor by the Trustee or to
the Company, the Guarantor and the Trustee by the Holders of at least 25%
in principal amount of the Outstanding Debt Securities of such series, 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
(5) the entry of a decree or order for relief in respect of the
Company or the Guarantor by a court having jurisdiction in the premises in
an involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law, or a decree or order adjudging the
Company or the Guarantor a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or the Guarantor under any
applicable Federal or State law, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of
the Company or the Guarantor or of any substantial part of their
respective property, or ordering the winding up or liquidation of their
respective affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or
(6) the commencement by the Company or the Guarantor of a voluntary
case under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or State bankruptcy, insolvency or other
similar law, or the consent by either to the entry of an order for relief
in an involuntary case under any such law or to the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of the Company or the Guarantor or of any substantial
part of their respective property, or the making by either of an
assignment for the benefit of their respective 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 or the
Guarantor in furtherance of any such action; or
(7) any other Event of Default provided with respect to Debt
Securities of that series pursuant to Section 3.01.
34
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Debt 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 Debt Securities of such series may declare the principal amount (or,
if any Debt Securities of such series are Discount Securities, such portion of
the principal amount of such Discount Securities as may be specified in the
terms of such Discount Securities) of all the Debt 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) plus accrued and unpaid interest (and premium, if
payable) shall become immediately due and payable. Upon payment of such amount
in the Currency in which such Debt Securities are denominated (except as
otherwise provided pursuant to Sections 3.01 or 3.10), all obligations of the
Company and the Guarantor in respect of the payment of principal of the Debt
Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to
Debt 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 Debt Securities of such series, by written notice to the Company,
the Guarantor and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum in the Currency in which such Debt Securities are
denominated (except as otherwise provided pursuant to Section 3.01 or
3.10) sufficient to pay
(A) all overdue installments of interest on all Debt Securities of
such series,
(B) the principal of (and premium, if any, on) any Debt Securities
of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Debt Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on each Debt
Security of such series at the Overdue Rate, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; provided, however,
-------- -------
that all sums payable under this clause (D) shall be paid in
Dollars;
and
(2) All Events of Default with respect to Debt Securities of such
series, other than the nonpayment of the principal of Debt Securities of
such series which has become due
35
solely by such declaration of acceleration, have been cured or waived as
provided in Section 5.13.
No such rescission and waiver shall affect any subsequent default or impair any
right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement
----------------------------------------------------
by Trustee.
----------
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Debt Security when such interest or payment becomes due and payable
and such default continues for a period of 30 days,
(2) default is made in the payment of principal of (or premium, if
any, on) any Debt Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking
fund payment or analogous obligation when the same becomes due pursuant to
the terms of the Debt Securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities, the amount then due and payable on such Debt
Securities, for the principal (and premium, if any) and interest, if any, and,
to the extent that payment of such interest shall be legally enforceable,
interest upon the overdue principal (and premium, if any) and upon overdue
installments of interest, at the Overdue Rate; 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 amount 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, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company, the Guarantor or any other obligor upon such Debt
Securities, and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company, the Guarantor or any
other obligor upon such Debt Securities wherever situated.
If an Event of Default with respect to Debt 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 Debt 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 to enforce any other proper remedy.
Section 5.04. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceedings, or any
36
voluntary or involuntary case under the Federal bankruptcy laws, as now or
hereafter constituted, relative to the Company, the Guarantor or any other
obligor upon the Debt Securities, of a particular series or the property of the
Company, the Guarantor or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of such Debt Securities shall then be due
and payable as therein expressed or by declaration of acceleration or otherwise
and irrespective of whether the Trustee shall have made any demand on the
Company or the Guarantor for the payment of overdue principal or interest) shall
be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (or,
if the Debt Securities of such series are Discount Securities, such
portion of the principal amount as may be due and payable with respect to
such series pursuant to a declaration in accordance with Section 5.02)
(and premium, if any) and interest owing and unpaid in respect of the Debt
Securities of such series and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders of such Debt Securities allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
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 such 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 6.07.
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 Debt
Securities of such series or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 5.05. Trustee May Enforce Claims Without Possession of Debt
-----------------------------------------------------
Securities.
----------
All rights of action and claims under this Indenture or the Debt
Securities or the Guarantees of any series may be prosecuted and enforced by the
Trustee without the possession of any of such Debt 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 Debt
Securities in respect of which such judgment has been recovered.
37
Section 5.06. 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 (and premium,
if any) or interest, upon presentation of the Debt Securities of any series in
respect of which money has been collected 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
6.07.
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities of
such series, 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 Debt Securities for
principal (and premium, if any) and interest, respectively; provided that
to the extent one or more series of Debt Securities are subordinated to
other series of Debt Securities or other obligations of the Company, then
the payments set forth in this SECOND clause shall apply only to
unsubordinated series of Debt Securities and any payments in respect of
obligations arising under series of subordinated Debt Securities shall be
made in accordance with the subordination provisions thereof; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 5.07. Limitation on Suits.
-------------------
No Holder of any Debt 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
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such 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;
(3) 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;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) 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 the Outstanding Debt Securities of such
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
38
or prejudice the rights of any other such Holders or of the Holders of
Outstanding Debt Securities of any other series, 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. For the protection and
enforcement of the provisions of this Section 5.07, each and every Holder of
Debt Securities of any series and the Trustee for such series shall be entitled
to such relief as can be given at law or in equity.
Section 5.08. Unconditional Right of Holders to Receive Principal,
---------------------------------------------------
Premium and Interest.
---------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Debt 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 3.07) interest on such Debt Security on the respective Stated Maturity
or Maturities expressed in such Debt Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment and interest thereon, and such right shall not be impaired without the
consent of such Holder.
Section 5.09. 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 the Company, the
Guarantor, the Trustee and the Holders shall, subject to any determination in
such proceeding, 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 expressly provided elsewhere in this Indenture,
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 assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or any
acquiescence therein. Every right and remedy given by this Indenture 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.
39
Section 5.12. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Debt Securities of any series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee with respect to the
Debt Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) subject to the provisions of Section 6.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or Responsible Officers of the
Trustee, determine that the proceeding so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series not joining
in any such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Debt Securities of any series may on behalf of the
Holders of all the Debt Securities of any such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or in the payment of any
sinking fund installment or analogous obligation with respect to the Debt
Securities of such series, or
(2) in respect of a covenant or provision hereof which pursuant to
Article Eleven cannot be modified or amended without the consent of the
Holder of each Outstanding Debt 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 the Debt Securities of such series under 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 Debt
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 other than the Trustee 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
40
claims or defenses made by such party litigant, but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder or group of Holders holding in the aggregate more than
10% in principal amount of the Outstanding Debt Securities of any series, or to
any suit instituted by any Holder of a Debt Security for the enforcement of the
payment of the principal of (or premium, if any) or interest on such Debt
Security on or after the respective Stated Maturity or Maturities expressed in
such Debt Security (or, in the case of redemption, on or after the Redemption
Date).
Section 5.15. Waiver of Stay or Extension Laws.
--------------------------------
Each of the Company and the Guarantor 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 law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantor (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 SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default with
respect to the Debt Securities of any series,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on 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 provisions
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 with respect to Debt Securities of
any series has occurred and is continuing, the Trustee shall, with respect to
the Debt Securities of such series, exercise such of the rights and powers
vested in it by this Indenture, and 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.
41
(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 willful misconduct, except that
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) 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;
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to Debt
Securities of any series in good faith in accordance with the direction of
the Holders of a majority in principal amount of the Outstanding Debt
Securities of such series 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; and
(4) the Trustee shall not be required 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 6.02. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder with
respect to Debt Securities, of any series, the Trustee shall give notice to all
Holders of Debt Securities of such series of such default hereunder actually
known to a Responsible Officer of 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 premium, if any) or interest on any Debt
Security of such series or in the payment of any sinking fund installment with
respect to Debt 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 and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Debt Securities of such series; and provided,
further, that in the case of any default of the character specified in Section
5.01(4) with respect to Debt 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 Debt Securities of such series.
Notice given pursuant to this Section 6.02 shall be transmitted by
mail:
42
(1) to all Registered Holders, as the names and addresses of the
Registered Holders appear in the Security Register; and
(2) to each Holder of a Debt Security of any series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 7.02(a) of this Indenture.
Section 6.03. Certain Rights of Trustee.
-------------------------
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, 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 shall 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 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 of Debt Securities of any series 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; and
(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 (including any agent appointed pursuant to
Section 3.10(i)) or attorney appointed with due care by it hereunder.
43
Section 6.04. Not Responsible for Recitals or Issuance of Debt
------------------------------------------------
Securities.
-----------
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Guarantor, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities, of any series. The
Trustee shall not be accountable for the use or application by the Company of
any Debt Securities or the proceeds thereof.
Section 6.05. May Hold Debt Securities.
------------------------
The Trustee, any Paying Agent, the Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Debt Securities, and, subject to Sections 6.08 and 6.13, may
otherwise deal with the Company or the Guarantor with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar or such other
agent.
Section 6.06. Money Held in Trust.
-------------------
Money in any Currency held by the Trustee or any Paying Agent in
trust hereunder need not be segregated from other funds except to the extent
required by law. Neither the Trustee nor any Paying Agent shall be under any
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
Section 6.07. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
in Dollars 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);
(2) except as otherwise expressly provided herein, to reimburse the
trustee in Dollars 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 expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify in Dollars 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 this trust or performance of its duties 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.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the Debt Securities,
upon all property and funds
44
held or collected by the Trustee as such, except funds held in trust for the
payment of amounts due on the Debt Securities.
The obligations of the Company under this Section 6.07 to compensate
and indemnify the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness under this Indenture and shall survive
resignation or removal of the Trustee and the satisfaction and discharge of this
Indenture.
Section 6.08. Disqualification; Conflicting Interests.
---------------------------------------
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section with respect to the Debt Securities of any series, then,
within 90 days after ascertaining that it has such conflicting interest, and if
the default (as hereinafter defined) to which such conflicting interest relates
has not been cured or duly waived or otherwise eliminated before the end of such
90-day period, the Trustee shall either eliminate such conflicting interest or,
except as otherwise provided below, resign with respect to the Debt Securities
of such series, and the Company shall take prompt steps to have a successor
appointed, 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 Debt Securities
of any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit to all Holders of Debt Securities of such series notice
of such failure.
Notice given pursuant to this Section 6.08(b) shall be transmitted
by mail:
(1) to all Registered Holders, as the names and addresses of the
Registered Holders appear in the Security Register; and
(2) to each Holder of a Debt Security of any series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 7.02(a) of this Indenture.
(c) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest with respect to the Debt Securities of any series,
if there shall exist an Event of Default (as such term is defined herein, but
exclusive of any period of grace or requirement of notice) with respect to such
Debt Securities and
(1) the Trustee is trustee under this Indenture with respect to the
Outstanding Debt Securities of any series other than that series or is
trustee under another indenture under which any other securities, or
certificates of interest or participation in any other securities, of the
Company are outstanding, unless such other indenture is a collateral trust
indenture under which the only collateral consists of Debt Securities
issued under this Indenture, provided that there shall be excluded from
the operation of this paragraph this Indenture with respect to the Debt
Securities of any series other than that series and any other indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if
45
(i) this Indenture and such other indenture or indentures (and
all series of securities issuable thereunder) are wholly unsecured
and rank equally and such other indenture or indentures are
hereafter qualified under the Trust Indenture Act, unless the
Commission shall have found and declared by order pursuant to
Section 305(b) or Section 307(c) of the Trust Indenture Act that
differences exist between the provisions of this Indenture with
respect to the Debt Securities of such series and one or more other
series or the provisions of such other indenture or indentures which
are so likely to involve a material conflict of interest as to make
it necessary, in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under this
Indenture with respect to the Debt Securities of such series and
such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving,
on application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture with respect to the
Debt Securities of such series and such other series or such other
indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public interest
or for the protection of investors to disqualify the Trustee from
acting as such under this Indenture with respect to the Debt
Securities of such series and such other series or under such other
indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an
underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control
with an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (i) one individual may be a director or an executive officer, or
both, of the Trustee and a director or an executive officer, or both, of
the Company but may not be at the same time an executive officer of both
the Trustee and the Company; (ii) if and so long as the number of
directors of the Trustee in office is more than nine, one additional
individual may be a director or an executive officer, or both, of the
Trustee and a director of the Company; and (iii) the Trustee may be
designated by the Company or by any underwriter for the Company to act in
the capacity of transfer agent, registrar, custodian, paying agent, fiscal
agent, escrow agent, or depositary or in any other similar capacity, or,
subject to the provisions of paragraph (l) of this subsection, to act as
trustee, whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or
10% or more of the voting securities of the Trustee is beneficially owned
46
either by an underwriter for the Company or by any director, partner or
executive officer thereof or is beneficially owned, collectively, by any
two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
subsection defined), (i) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company not including the Debt
Securities issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (ii) 10% or
more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of or holds as collateral
security for an obligation which is in default, 5% or more of the voting
securities of any person who, to the knowledge of the Trustee, owns 10% or
more of the voting securities of, or controls directly or indirectly or is
under direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of or holds as collateral
security for an obligation which is in default, 10% or more of any class
of security of any person who, to the knowledge of the Trustee, owns 50%
or more of the voting securities of the Company;
(9) the Trustee owns, on the date of such Event of Default or any
anniversary of such Event of Default while such Event of Default remains
outstanding, in the capacity of executor, administrator, testamentary or
inter vivos trustee, guardian, committee or conservator, or in any other
similar capacity, an aggregate of 25% or more of the voting securities, or
of any class of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a conflicting
interest under paragraph (6), (7) or (8) of this subsection. As to any
such securities of which the Trustee acquired ownership through becoming
executor, administrator or testamentary trustee of an estate which
included them, the provisions of the preceding sentence shall not apply,
for a period of not more than two years from the date of such acquisition,
to the extent that such securities included in such estate do not exceed
25% of such voting securities or 25% of any such class of security.
Promptly after the dates of any such Event of Default and annually in each
succeeding year that such Event of Default continues, the Trustee shall
make a check of its holdings of such securities in any of the
above-mentioned capacities as of such dates. If the Company fails to make
payment in full of the principal of (or premium, if any) or interest on
any of the Debt Securities when and as the same becomes due and payable,
and such failure continues for 30 days thereafter, the Trustee shall make
a prompt check of its holdings of such securities in any of the
above-mentioned capacities as of the date of the expiration of such 30-day
period, and after such date, notwithstanding the foregoing provisions of
this paragraph, all such securities so held by the Trustee, with sole or
joint control over such securities vested in it, shall be considered as
though beneficially owned by the Trustee for the purposes of paragraphs
(6), (7) and (8) of this subsection; or
(10) except under the circumstances described in paragraphs (1),
(3), (4), (5) or (6) of Section 6.13(b) of this Indenture, the Trustee
shall be or shall become a creditor of the Company.
47
For the purposes of paragraph (1) of this subsection, the term
"series of securities" or "series" means a series, class or group of securities
issuable under an indenture pursuant to whose terms holders of one such series
may vote to direct the Trustee, or otherwise take action pursuant to a vote of
such holders, separately from holders of another series; provided, that "series
of securities" or "series" shall not include any series of securities issuable
under an indenture if all such series rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this subsection shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (3) or (7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (iii) the Trustee shall not
be deemed to be the owner or holder of (A) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not in
default as defined in clause (ii) above, or (B) any security which it holds as
collateral security under this Indenture, irrespective of any default hereunder,
or (C) any security which it holds as agent for collection, or as custodian,
escrow agent or depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to the Company
means every person who, within one year prior to the time as of which the
determination is made, has purchased from the Company with a view to, or
has offered or sold for the Company in connection with, the distribution
of any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in any such
undertaking, or has participated or has had a participation in the direct
or indirect underwriting of any such undertaking, but such term shall not
include a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" means any director of a corporation, or any
individual performing similar functions with respect to any organization
whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint stock company, a trust, an estate, an
unincorporated organization, or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
48
(4) The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangements whereby a trustee or
trustees or agent or agents for the owner or holder of such security are
presently entitled to vote in the direction or management of the affairs
of a person.
(5) The term "Company" means any obligor upon the Debt Securities of
any series.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary, and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization, whether incorporated
or unincorporated, but shall not include the chairman of the board of
directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section (each of whom
is referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of securities of a person
means such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount", when used with regard to securities means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares, and the number of units if relating
to any other kind of security.
(4) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating
to another class of securities of the issuer, if the obligation
evidenced by such other class of securities is not in default as to
principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as security for
an obligation of the issuer not in default as to principal or
interest or otherwise; and
(iv) securities held in escrow if placed in escrow by the
issuer thereof;
49
provided, however, that any voting securities of an issuer shall be deemed
-------- -------
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes; and provided, further, that, in
-------- -------
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
(f) Except in the case of a default in the payment of the principal
of or interest on any Debt Security of any series, or in the payment of any
sinking or purchase fund installment, the Trustee shall not be required to
resign as provided by this Section if the Trustee shall have sustained the
burden of proving, on application to the Commission and after opportunity for
hearing thereon, that:
(1) the Event of Default may be cured or waived during a reasonable
period and under the procedures described in such application; and
(2) a stay of the Trustee's duty to resign will not be inconsistent
with the interests of Holders of the Debt Securities.
The filing of such an application shall automatically stay the performance of
the duty to resign until the Commission orders otherwise.
Section 6.09. 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 $100,000,000, subject to supervision or examination by Federal,
State or District of Columbia authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, 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. Neither the Company nor any person directly or
indirectly controlling, controlled by, or under common control with the Company
shall serve as Trustee upon any Debt Securities.
Section 6.10. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) The Company may, but need not, appoint a separate Trustee for
any one or more series of Debt Securities. 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
under Section 6.11.
50
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee 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 Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series and a successor Trustee appointed by Act of the Holders
of a majority in principal amount of the Outstanding Debt Securities of such
series, delivered to the Trustee and to the Company and the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08(a) with
respect to the Debt Securities of any series after written request
therefor by the Company and the Guarantor or by any Holder who has been a
bona fide Holder of a Debt Security of such series for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 6.09 with
respect to the Debt Securities of any series and shall fail to resign
after written request therefor by the Company or by any such Holder, or
(3) 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, (i) the Company, and the Guarantor by a Board Resolution
may remove the Trustee with respect to all Debt Securities, or (ii) subject to
Section 5.14, any Holder who has been a bona fide Holder of a Debt 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 and the appointment of a successor Trustee for the Debt
Securities of such series.
(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 Debt Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Debt Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Debt Securities of
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Debt Securities of any 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 Debt Securities of any series
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Debt Securities of such series delivered to the Company, the
Guarantor and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment,
51
become the successor Trustee with respect to the Debt Securities of such series
and to that extent supersede the successor Trustee appointed by the Company and
the Guarantor. If no successor Trustee with respect to the Debt Securities of
any series shall have been so appointed by the Company and the Guarantor or the
Holders of such series and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, subject to Section 5.14, 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 Debt
Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series in the manner and to the extent provided in Section 1.05 to the
Holders of Debt Securities of such series. Each notice shall include the name of
the successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
--------------------------------------
(a) In the case of an appointment hereunder of a successor Trustee
with respect to all Debt Securities, each such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and the Guarantor 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 request of the Company, the Guarantor 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, subject nevertheless to its claim, if any, provided for in Section
6.07.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the Guarantor, the retiring Trustee and each successor Trustee with respect to
the Debt 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
Debt 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 Debt 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 Debt 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 any 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 other trust or trusts hereunder administered by any other such Trustee; and
upon
52
the execution and delivery of any 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 Debt Securities of that or those
series to which the appointment of such successor Trustee relates, but, on
request of the Company, the Guarantor 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
Debt 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 and the
Guarantor 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 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 of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that 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 Debt 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 Debt Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Debt Securities. In case any Debt Securities shall not have been authenticated
by such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
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 default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the Debt
Securities and the holders of other indenture securities (as defined in
subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three-month period and valid as
against the Company and its other creditors,
53
except any such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection, or from the
exercise of any right of set-off which the Trustee could have exercised if
a voluntary or involuntary case had been commenced in respect of the
Company under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three-month
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 (i) payments made on account of
any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim by
the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings or reorganization
pursuant to the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or State bankruptcy, insolvency or other
similar 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-month 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-month 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 three 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-month 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.
54
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 laws, as now or hereafter constituted or any other applicable Federal
or State bankruptcy, insolvency or other similar 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 laws, as
now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar 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 laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar 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 (i) to apportion among the
Trustee and 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 (ii) 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 claim, 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-month 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-month period, it
shall be subject to the provisions of this subsection if and only if the
following conditions exist:
(i) 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-month period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
55
(b) There shall be excluded from the operation of subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) 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;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented, or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve
Act, as amended, which is directly or indirectly a creditor of the
Company; and
(6) The acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within
the classification of self-liquidating paper as defined in subsection (c)
of this Section.
(c) for the purposes of this Section only:
(1) The term "default" means any failure to make payment in full of
the principal of or interest on any of the Debt Securities or upon the
other indenture securities when and as such principal or interest becomes
due and payable.
(2) The term "other indenture securities" means securities upon
which the Company is an obligor outstanding under any other indenture (i)
under which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of the funds and
property held in such special account.
(3) 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 and payable upon demand.
56
(4) 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 or
obligation.
(5) The term "Company" means any obligor upon the Debt Securities.
Section 6.14. Appointment of Authenticating Agent.
-----------------------------------
As long as any Debt Securities of a series remain Outstanding, upon
a Company Request, there shall be an authenticating agent (the "Authenticating
Agent") appointed, for such period as the Company shall elect, by the Trustee
for such series of Debt Securities to act as its agent on its behalf and subject
to its direction in connection with the authentication and delivery of each
series of Debt Securities for which it is serving as Trustee. Debt Securities of
each such series authenticated by such Authenticating Agent shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by such Trustee. Wherever reference is made in this
Indenture to the authentication and delivery of Debt Securities of any series by
the Trustee for such series or to the Trustee's Certificate of Authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee for such series by an Authenticating Agent for such series and a
Certificate of Authentication executed on behalf of such Trustee by such
Authenticating Agent, except that only the Trustee may authenticate Debt
Securities upon original issuance and pursuant to Section 3.06 hereof. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $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 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 any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Debt Securities for which it served as Authenticating
Agent without the execution or filing of any paper or any further act on the
part of the Trustee for such series or such Authenticating Agent. Any
Authenticating Agent
57
may at any time, and if it shall cease to be eligible shall, resign by giving
written notice of resignation to the applicable Trustee and to the Company and
the Guarantor.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14 with respect to
one or more or all series of Debt Securities, the Trustee for such series shall
upon a Company Request appoint a successor Authenticating Agent, and the Company
and the Guarantor shall provide notice of such appointment to all Holders of
Debt Securities of such series in the manner and to the extent provided in
Section 1.05. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent herein. The Company agrees to pay to the
Authenticating Agent for such series from time to time reasonable compensation
for its services. The Authenticating Agent for the Debt Securities of any series
shall have no responsibility or liability for any action taken by it as such at
the direction of the Trustee for such series.
If an appointment with respect to one or more series is made
pursuant to this Section, the Debt Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the series of Debt Securities issued under the within
mentioned Indenture.
Bank One Trust Company, National Association,
As Trustee
By:__________________________________________
As Authenticating Agent
By:__________________________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders.
--------
The Company and the Guarantor will furnish or cause to be furnished
to the Trustee with respect to Registered Securities of each series for which it
acts as Trustee:
(a) semi-annually on a date not more than 15 days after each Regular
Record Date with respect to an Interest Payment Date, if any, for the Registered
Securities of such series (or on semi-annual dates in each year to be determined
pursuant to Section 3.01 if the Registered
58
Securities of such series do not bear interest), a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Registered
Holders as of the date 15 days next preceding each such Regular Record Date (or
such semi-annual dates, as the case may be); and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company and the Guarantor of any such
request, a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
-------- -------
Registrar for such series, no such list need be furnished.
Section 7.02. Preservation of Information; Communication to Holders.
-----------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of Holders
contained in the most recent list furnished to the Trustee as provided in
Section 7.01 received by it in the capacity of Paying Agent (if so acting)
hereunder.
The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished, destroy any information
received by it as Paying Agent (if so acting) hereunder upon delivering to
itself as Trustee, not earlier than 45 days after an Interest Payment Date, a
list containing the names and addresses of the Holders obtained from such
information since the delivery of the next previous list, if any, and destroy
any list delivered to itself as Trustee which was compiled from information
received by it as Paying Agent (if so acting) hereunder upon the receipt of a
new list so delivered.
(b) If three or more Holders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Debt Security 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 Debt Securities of a particular series (in which case the applicants must
hold Debt Securities of such series) or with all Holders of Debt Securities with
respect to their rights under this Indenture or under the Debt 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 7.02(a), or
(ii) inform such applicants as to the approximate number of Holders
of Debt Securities of such series or of all Debt Securities, as the case
may be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 7.02(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon written request of such applicants,
mail to the Holders of Debt Securities of such series or all Holders, as the
case may be, whose names and addresses appear in the
59
information preserved at the time by the Trustee in accordance with Section
7.02(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
interests of the Holders of Debt Securities of such series or all Holders, as
the case may be, 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 Debt Securities, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company, the
Guarantor or the Trustee 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 7.02(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing of any material pursuant to a request made under Section
7.02(b).
Section 7.03. Reports by Trustee.
------------------
(a) Within 60 days after May 15 of each year, commencing May 15,
2002, the Trustee shall, to the extent required by the Trust Indenture Act,
transmit to all Holders of Debt Securities of any series with respect to which
it acts as Trustee, in the manner hereinafter provided in this Section 7.03, a
brief report dated such date 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 be transmitted):
(1) any change to its eligibility under Section 6.09 and its
qualifications under Section 6.08;
(2) the creation of or any material change to a relationship
specified in paragraph (1) through (10) of Section 6.08(c) of this
Indenture;
(3) 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 Debt Securities of such series, 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 1/2 of 1% of the
principal amount of the Outstanding Debt Securities of such series on the
date of such report;
60
(4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or any other obligor on the Debt
Securities of such series) 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)(2), (3),
(4) or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any additional issue of Debt Securities which the Trustee has
not previously reported; and
(7) 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 Debt Securities of such series, except action in
respect of a default, notice of which has been or is to be withheld by the
Trustee in accordance with Section 6.02.
(b) The Trustee shall transmit by mail to all Holders of Debt
Securities of any series (whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.02 (a)) for
which it acts as the Trustee, as hereinafter provided, 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 Debt Securities of such series, on property or funds held or collected by it
as Trustee, and which it has not previously reported pursuant to this
subsection, except that the Trustee for each series 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 Debt Securities of such
series Outstanding at such time, such report to be transmitted within 90 days
after such time.
(c) Reports pursuant to this Section 7.03 shall be transmitted by
mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders of Registered Securities appear in the Security
Register; and
(2) except in the cases of reports pursuant to subsection (b) of
this Section 7.03, to each Holder of a Debt Security of any series whose
name and address appear in the information preserved at the time by the
Trustee in accordance with Section 7.02(a).
(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 Debt Securities of such series are listed, with the Commission and
also with the Company and the Guarantor. The Company or the Guarantor will
notify the Trustee when any series of Debt Securities are listed on any stock
exchange.
61
Section 7.04. Reports by Company and Guarantor.
--------------------------------
Unless otherwise specified with respect to a particular series of
Debt Securities pursuant to Section 3.01, the Company and the Guarantor will:
(1) file with the Trustee, within 15 days after the Guarantor 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 Guarantor may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended. Notwithstanding
that the Guarantor may not be required to remain subject to the reporting
requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended or otherwise report on an annual and quarterly basis on
forms provided for such annual and quarterly reporting pursuant to rules
and regulations promulgated by the Commission, the Guarantor shall
continue to file with the Commission and provide the Trustee and the
Holders of each series of Debt Securities with, without cost to each
Holder, (a) within 90 days after the end of each fiscal year, annual
reports on Form 10-K (or any successor or comparable form) containing the
information required (other than pursuant to Item 9 of such report) to be
contained therein (or required in such successor or comparable form); (b)
within 45 days after the end of each of the first three fiscal quarters of
each fiscal year, reports on Form 10-Q (or any successor or comparable
form); and (c) promptly from time to time after the occurrence of an event
required to be therein reported, such other reports on Form 8-K (or any
successor or comparable form) containing the information required (other
than pursuant to Item 9 of such report) to be contained therein (or
required in any successor or comparable form); provided, however, that the
-------- -------
Guarantor shall not be obligated to file such reports with the Commission
if the Commission does not permit such filings. The Guarantor will in all
cases, without cost to each recipient, provide copies of such information
to the Holders of the Debt Securities of each series and, if it is not
permitted to file such reports with the Commission, shall make available
information to prospective purchasers and to securities analysts and
broker-dealers upon their request;
(2) 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 and the Guarantor with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit to all Holders of Debt Securities, in the manner and to
the extent provided in Section 7.03, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company and the Guarantor pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
62
ARTICLE EIGHT
CONCERNING THE HOLDERS
Section 8.01. Acts of Holders.
---------------
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 an agent or
proxy 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 and the Guarantor. 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. Whenever in this
Indenture it is provided that the Holders of a specified percentage in aggregate
principal amount of the Outstanding Debt Securities of any series may take any
Act, the fact that the Holders of such specified percentage have joined therein
may be evidenced (a) by the instrument or instruments executed by Holders in
person or by agent or proxy appointed in writing, or (b) by the record of
Holders voting in favor thereof at any meeting of such Holders duly called and
held in accordance with the provisions of Article Nine, or (c) by a combination
of such instrument or instruments and any such record of such a meeting of
Holders.
Section 8.02. Proof of Ownership; Proof of Execution of Instruments
-----------------------------------------------------
by Holder.
---------
The ownership of Registered Securities of any series shall be proved
by the Security Register for such series or by a certificate of the Security
Registrar for such series.
Subject to the provisions of Sections 6.01, 6.03 and 9.05, proof of
the execution of any instrument by a Holder or such Holder's agent shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
The record of any Holders' meeting shall be proved in the manner
provided in Section 9.06.
The Trustee may in any instance require further proof with respect
to any of the matters referred to in this Section so long as the request is a
reasonable one.
Section 8.03. Persons Deemed Owners.
---------------------
The Company, the Guarantor, the Trustee and any agent of the
Company, the Guarantor or the Trustee may treat the Person in whose name any
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of the principal of (and premium, if any) and
(subject to Section 3.07) interest, if any, on such Registered Security and for
all other purposes whatsoever, whether or not such Registered Security be
overdue, and neither the Company, the Guarantor, the Trustee nor any agent of
the Company, the Guarantor, or the Trustee shall be affected by notice to the
contrary. All payments
63
made to any Holder, or upon his order, shall be valid, and, to the extent of the
sum or sums paid, effectual to satisfy and discharge the liability for moneys
payable upon such Debt Security.
Section 8.04. Revocation of Consents; Future Holders Bound.
--------------------------------------------
At any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 8.01, of the taking of any Act by the Holders of the
percentage in aggregate principal amount of the Outstanding Debt Securities
specified in this Indenture in connection with such Act, any Holder of a Debt
Security the number, letter or other distinguishing symbol of which is shown by
the evidence to be included in the Debt Securities the Holders of which have
consented to such Act may, by filing written notice with the Trustee at the
Corporate Trust Office and upon proof of ownership as provided in Section 8.02,
revoke such Act so far as it concerns such Debt Security. Except as aforesaid,
any such Act taken by the Holder of any Debt Security shall be conclusive and
binding upon such Holder and, subject to the provisions of Section 5.08, upon
all future Holders of such Debt Security and of any Debt Securities issued on
transfer or in lieu thereof or in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon such
Debt Security or such other Debt Securities.
ARTICLE NINE
HOLDERS' MEETINGS
Section 9.01. Purposes of Meetings.
--------------------
A meeting of Holders of any or all series may be called at any time
and from time to time pursuant to the provisions of this Article Nine for any of
the following purposes:
(1) to give any notice to the Company, the Guarantor or to the
Trustee for such series, or to give any directions to the Trustee for such
series, or to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article Five;
(2) to remove the Trustee for such series and appoint a successor
Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(4) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the
Outstanding Debt Securities of any one or more or all series, as the case
may be, under any other provision of this Indenture or under applicable
law.
Section 9.02. Call of Meetings by Trustee.
---------------------------
The Trustee for any series may at any time call a meeting of Holders
of such series to take any action specified in Section 9.01, to be held at such
time or times and at such place or places as the Trustee for such series shall
determine. Notice of every meeting of the
64
Holders of any series, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting, shall be given
to Holders of such series in the manner and to the extent provided in Section
1.05. Such notice shall be given not less than 10 days nor more than 90 days
prior to the date fixed for the meeting.
Section 9.03. Call of Meetings by Company or Holders. In case at any
--------------------------------------
time the Company, pursuant to a Board Resolution, or the Holders of at least 10%
in aggregate principal amount of the Outstanding Debt Securities of a series or
of all series, as the case may be, shall have requested the Trustee for such
series to call a meeting of Holders of any or all such series by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have given the notice of such meeting within
10 days after the receipt of such request, then the Company or such Holders may
determine the time or times and the place or places for such meetings and may
call such meetings to take any action authorized in Section 9.01, by giving
notice thereof as provided in Section 9.02.
Section 9.04. Qualifications for Voting.
-------------------------
To be entitled to vote at any meeting of Holders a Person shall be
(a) a Holder of a Debt Security of the series with respect to which such meeting
is being held or (b) a Person appointed by an instrument in writing as agent or
proxy by such Holder. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee for the series
with respect to which such meeting is being held and its counsel and any
representatives of the Company, the Guarantor and their counsel.
Section 9.05. Regulations.
-----------
Notwithstanding any other provisions of this Indenture, the Trustee
for any series may make such reasonable regulations as it may deem advisable for
any meeting of Holders of such series, in regard to proof of the holding of Debt
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in Section 9.03, in which case
the Company or the Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by a majority vote of the meeting.
Subject to the provisos in the definition of "Outstanding," at any
meeting each Holder of a Debt Security of the series with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 principal amount (or such other amount as shall be specified as
contemplated by Section 3.01) of Debt Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at
-------- -------
any meeting in respect of any Debt Security challenged as not Outstanding and
ruled by the chairman of the
65
meeting to be not Outstanding. The chairman of the meeting shall have no right
to vote other than by virtue of Outstanding Debt Securities of such series held
by him or instruments in writing duly designating him as the person to vote on
behalf of Holders of Debt Securities of such series. Any meeting of Holders with
respect to which a meeting was duly called pursuant to the provisions of Section
9.02 or 9.03 may be adjourned from time to time by a majority of such Holders
present and the meeting may be held as so adjourned without further notice.
Section 9.06. Voting.
------
The vote upon any resolution submitted to any meeting of Holders
with respect to which such meeting is being held shall be by written ballots on
which shall be subscribed the signatures of such Holders or of their
representatives by proxy and the serial number or numbers of the Debt Securities
held or represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Holders
shall be taken and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was transmitted as provided
in Section 9.02. The record shall show the serial numbers of the Debt Securities
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
Section 9.07. No Delay of Rights by Meeting.
-----------------------------
Nothing contained in this Article Nine shall be deemed or construed
to authorize or permit, by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to any Holder under any of the provisions of this
Indenture or of the Debt Securities of any series.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 10.01. Company May Consolidate, etc., Only on Certain Terms.
----------------------------------------------------
Neither the Company nor the Guarantor shall consolidate with or
merge with or into or wind up into (whether or not the Company or the Guarantor
is the surviving corporation) or sell, assign, convey, transfer or lease its
properties and assets substantially as an entirety to any Person, unless:
66
(1) the corporation formed by such consolidation or into which the
Company or the Guarantor is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of the
Company or the Guarantor substantially as an entirety (the "successor
corporation") shall be a corporation organized and existing under the laws
of the United States or any State or territory 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 Debt Securities and the performance of every
covenant of this Indenture on the part of the Company or the Guarantor to
be performed or observed;
(2) immediately after giving effect to 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;
(3) the Company or the Guarantor, as the case may be, has delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel each
stating that such consolidation, merger, conveyance, transfer or lease and
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with;
(4) in the case of a merger or consolidation or other transaction
described in this Section 10.01 with respect to the Company, the Guarantor
shall have confirmed by supplemental indenture that its Guarantee shall
apply to the successor corporation's obligations in respect of this
Indenture and the Debt Securities; and
(5) such other conditions as may be specified under Section 3.01
with respect to any series of Debt Securities.
Section 10.02. Successor Corporation Substituted.
---------------------------------
Upon any consolidation with or merger into any other corporation, or
any conveyance, transfer or lease of the properties and assets of the Company or
the Guarantor, as the case may be, substantially as an entirety in accordance
with Section 10.01, the successor corporation formed by such consolidation or
into which the Company or the Guarantor, as the case may be, 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 or the
Guarantor, as the case may be, under this Indenture with the same effect as if
such successor corporation had been named as the Company or the Guarantor, as
the case may be, herein.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, and the Guarantor
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter
67
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the rights
of the Company or the Guarantor, as the case may be, and the assumption by
such successor of the covenants of the Company or the Guarantor, as the
case may be, contained herein and in the Debt Securities and in the
Guarantees; or
(2) to add to the covenants of the Company or the Guarantor for the
benefit of the Holders of all or any series of Debt Securities (and if
such covenants are to be for the benefit of less than all series, 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
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series, stating that such
Events of Default are expressly being included solely to be applicable to
such series); or
(4) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Outstanding Debt Security of any series created prior to
the execution of such supplemental indenture which is entitled to the
benefit of such provision and as to which such supplemental indenture
would apply; or
(5) to secure the Debt Securities; or
(6) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Debt Securities pursuant to Article Four or
Fifteen, provided that any such action shall not adversely affect the
interests of the Holders of Debt Securities of such series or any other
series of Debt Securities in any material respect; or
(7) to establish the form or terms of Debt Securities or Guarantees
of any series as permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more series of
Debt Securities and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 6.11; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, to eliminate any conflict between the terms hereof and the Trust
Indenture Act or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with any provision of this Indenture; provided such other provisions shall
--------
not adversely affect the interests of the Holders of Outstanding Debt
Securities of any series created prior to the execution of such
supplemental indenture in any material respect.
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Section 11.02. Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the written consent of the Holders of not less than a majority
in principal amount of the Outstanding Debt Securities of each series affected
by such supplemental indenture voting separately, by Act of said Holders
delivered to the Company, the Guarantor and the Trustee, the Company (when
authorized by a Board Resolution), the Guarantor (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 under this Indenture of such
Debt Securities; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Debt Security of each such
series affected thereby,
(1) conflict with the required provisions of the Trust Indenture
Act;
(2) except as specifically provided with respect to any series of
Debt Securities pursuant to Section 3.01, (a) change the Stated Maturity
of the principal of, or installment of interest, if any, on, any Debt
Security, or reduce the principal amount thereof or the interest thereon
or any premium payable upon redemption thereof (provided that a
requirement to offer to repurchase Debt Securities shall not be deemed a
redemption for this purpose), or change the Currency or Currencies in
which the principal of (and premium, if any) or interest on such Debt
Security is denominated or payable, or reduce the amount of the principal
of a Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.02, or reduce
the amount of, or postpone the date fixed for, any payment under any
sinking fund or analogous provisions for any Debt Security, or impair the
right to institute suit for the enforcement of any payment on or after the
Stated Maturity or Maturity thereof (or, in the case of redemption, on or
after the Redemption Date); or
(3) reduce the percentage in principal amount of the Outstanding
Debt Securities of any series, the consent of whose Holders is required
for any 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
(4) modify any of the provisions of this Section, Section 5.13 or
Section 12.06, 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 Debt Security of
each series 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 12.06, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11 and 11.01(8).
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.
69
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture with respect to one or more particular series
of Debt Securities or which modifies the rights of the Holders of Debt
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
Debt Securities of any other series.
Section 11.03. 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 6.01) shall be fully protected in relying upon, an
Officer's Certificate and an Opinion of Counsel, each 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 adversely affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise in a material way.
Section 11.04. 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, except as
otherwise permitted in Section 11.02, every Holder of Debt Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
Section 11.05. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 11.06. Reference in Debt Securities to Supplemental
--------------------------------------------
Indentures.
----------
Debt 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 Debt 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, with Guarantees duly executed by
the Guarantor endorsed thereon, and authenticated and delivered by the Trustee
in exchange for Outstanding Debt Securities of such series.
Section 11.07. Notice of Supplemental Indenture.
--------------------------------
Promptly after the execution by the Company, the Guarantor and the
appropriate Trustee of any supplemental indenture pursuant to Section 11.02, the
Company shall transmit, in the manner and to the extent provided in Section
1.05, to all Holders of any series of the Debt Securities affected thereby, a
notice setting forth in general terms the substance of such supplemental
indenture.
70
ARTICLE TWELVE
COVENANTS
Section 12.01. Payment of Principal, Premium and Interest.
------------------------------------------
The Company, for the benefit of each series of Debt Securities, will
duly and punctually pay or cause to be paid the principal of, and premium, if
any, and interest on, each of the Debt Securities at the place, at the
respective times and in the manner provided herein. Each installment of interest
on the Debt Securities may at the Company's option be paid by mailing checks for
such interest payable to the Person entitled thereto to the address of such
Person as it appears on the Security Register or, if provided pursuant to
Section 3.01, by wire transfer to an account designated by the Registered
Holder.
Section 12.02. Officer's Certificate as to Default.
-----------------------------------
(a) Unless otherwise specifically provided for with respect to any
series of Debt Securities under Section 3.01, the Company will deliver to the
Trustee, on or before a date not more than four months after the end of each
fiscal year of the Company (which on the date hereof is the Friday closest to
September 30 of each year) ending after the date hereof, a certificate of the
principal executive officer, principal financial officer or principal accounting
officer of the Company stating whether or not to the best knowledge of the
signer thereof the Company is in compliance with all covenants and conditions
under this Indenture, and, if the Company shall be in default, specifying all
such defaults and the nature thereof of which such signer may have knowledge.
For purposes of this Section, such compliance shall be determined without regard
to any period of grace or requirement of notice provided under this Indenture.
(b)
Unless otherwise specifically provided for with respect to any
series of Debt Securities under Section 3.01, the Guarantor will deliver to the
Trustee, on or before a date not more than four months after the end of each
fiscal year of the Guarantor (which on the date hereof is the Friday closest to
September 30 of each year) ending after the date hereof, a certificate of the
principal executive officer, principal financial officer or principal accounting
officer of the Guarantor stating whether or not to the best knowledge of the
signer thereof the Guarantor is in compliance with all covenants and conditions
under this Indenture, and, if the Guarantor shall be in default, specifying all
such defaults and the nature thereof of which such signer may have knowledge.
For purposes of this Section, such compliance shall be determined without regard
to any period of grace or requirement of notice provided under this Indenture.
Section 12.03. Maintenance of Office or Agency.
-------------------------------
If Debt Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Debt Securities of that series may be presented or
surrendered for payment, where Debt 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 Debt Securities of that series and this
71
Indenture may be served. The Company will give prompt written notice to the
Trustee 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, surrenders, 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 presentations, surrenders, notices and
demands.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designations; provided, however, that no such designation or rescission shall in
-------- -------
any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
Section 12.04. Money for Debt Securities; Payments To Be Held in
-------------------------------------------------
Trust.
-----
If the Company or the Guarantor shall at any time act as Paying
Agent with respect to any series of Debt Securities, it will, on or before each
due date of the principal of (and premium, if any) or interest on any of the
Debt Securities of such series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal (and premium,
if any) 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 with
respect to any series of Debt Securities, it will, by or on each due date of the
principal (and premium, if any) or interest on any Debt Securities of such
series, deposit with any such Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled thereto, and (unless any 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 with respect to any series
of Debt 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:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Debt Securities of such series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Debt Securities of such series) in the making of
any payment of principal (and premium, if any) or interest on the Debt
Securities of such series; and
72
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
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, the Guarantor 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, the Guarantor 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 or the Guarantor, in trust for the payment of the principal
of (and premium, if any) or interest on any Debt Security of any series and
remaining unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company upon Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Debt Security shall thereafter, as an unsecured general
creditor, look only to the Company or Guarantor 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 or the Guarantor 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 transmitted in the manner and to the extent provided by
Section 1.05, 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
notification, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 12.05. Corporate Existence.
-------------------
Subject to Article Ten, the Company and the Guarantor 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 neither the Company nor the Guarantor shall be required
-------- -------
to preserve any such right or franchise if the Company and the Guarantor, as the
case may be, shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company or the Guarantor.
Section 12.06. Waiver of Certain Covenants.
---------------------------
The Company and the Guarantor may omit in any particular instance to
comply with any term, provision or condition set forth in Section 12.05 (and, if
so specified pursuant to Section 3.01, any other covenant not set forth herein
and specified pursuant to Section 3.01 to be applicable to the Securities of any
series, except as otherwise provided pursuant to Section 3.01) with respect to
the Debt Securities of any series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Debt
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,
provision or condition except to the extent expressly so waived, and, until such
73
waiver shall become effective, the obligations of the Company and the Guarantor
and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
Section 13.01. Applicability of Article.
------------------------
Debt Securities of any series which are redeemable before their
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified pursuant to Section 3.01 for Debt Securities of any series)
in accordance with this Article.
Section 13.02. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem (or, in the case of Discount
Securities, to permit the Holders to elect to surrender for redemption) any Debt
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all of the Debt Securities of any
series pursuant to Section 13.03, the Company shall, at least 30 days but not
more than 60 days before the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Debt Securities of such series to
be redeemed. In the case of any redemption of Debt Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Debt Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restrictions.
Section 13.03. Selection by Trustee of Debt Securities to Be
---------------------------------------------
Redeemed.
--------
Except in the case of a redemption in whole of the Registered
Securities of such series, if less than all the Debt Securities of any series
are to be redeemed at the election of the Company, the particular Debt
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Debt 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 Debt Securities of
such series or any integral multiple thereof) of the principal amount of Debt
Securities of such series in a denomination larger than the minimum authorized
denomination for Debt Securities of such series pursuant to Section 3.02 in the
Currency in which the Debt Securities of such series are denominated. The
portions of the principal amount of Debt Securities so selected for partial
redemption shall be equal to the minimum authorized denominations for Debt
Securities of such series pursuant to Section 3.02 in the Currency in which the
Debt Securities of such series are denominated or any integral multiple thereof,
except as otherwise set forth in the applicable form of Debt Securities. In any
case when more than one Registered Security of such series is registered in the
same name, the Trustee in its discretion may treat the aggregate principal
amount so registered as if it were represented by one Registered Security of
such series.
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The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt 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 Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt security which has
been or is to be redeemed.
Section 13.04. Notice of Redemption.
--------------------
Notice of redemption 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,
not less than 30 days and not more than 60 days prior to the Redemption Date to
the Holders of Debt Securities of any series to be redeemed in whole or in part
pursuant to this Article Thirteen, in the manner provided in Section 1.05. Any
notice so given shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. Failure to give such notice, or any
defect in such notice to the Holder of any Debt Security of a series designated
for redemption, in whole or in part, shall not affect the sufficiency of any
notice of redemption with respect to the Holder of any other Debt Security of
such series.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being redeemed by the
Company pursuant to provisions contained in this Indenture or the terms of
the Debt Securities of such series or a supplemental indenture
establishing such series, if such be the case, together with a brief
statement of the facts permitting such redemption,
(4) if less than all Outstanding Debt Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Debt Securities to be
redeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debt Security to be redeemed, and that interest
thereon, if any, shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such Debt Securities are to
be surrendered for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the case.
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Section 13.05. Deposit of Redemption Price.
---------------------------
On or prior to the Redemption Date for any Debt Securities, 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 12.04) an amount of money in the Currency or Currencies in
which such Debt Securities are denominated (except as provided pursuant to
Section 3.01) sufficient to pay the Redemption Price of such Debt Securities or
any portions thereof which are to be redeemed on that date.
Section 13.06. Debt Securities Payable on Redemption Date.
------------------------------------------
Notice of redemption having been given as aforesaid, any Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price in the Currency in which the Debt Securities of
such series are payable (except as otherwise specified pursuant to Section 3.01
or 3.10), and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Debt Securities shall cease to bear
interest. Upon surrender of any such Debt Security for redemption in accordance
with said notice, such Debt Security shall be paid by the Company at the
Redemption Price; provided, however, that, unless otherwise specified as
-------- -------
contemplated by Section 3.01, installments of interest on Registered Securities
which have a Stated Maturity on or prior to the Redemption Date for such Debt
Securities shall be payable according to the terms of such Debt Securities and
the provisions of Section 3.07.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
Section 13.07. Debt Securities Redeemed in Part.
--------------------------------
Any Debt Security which is to be redeemed only in part shall be
surrendered at the Corporate Trust Office or such other office or agency of the
Company as is specified pursuant to Section 3.01 with, if the Company, the
Security Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing, and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Debt Security without service
charge, a new Debt Security or Debt Securities of the same series, of like tenor
and form, of any authorized denomination as requested by such Holder, having
endorsed thereon a Guarantee or Guarantees duly executed by the Guarantor, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Debt Security so surrendered. In the case of a Debt
Security providing appropriate space for such notation, at the option of the
Holder thereof, the Trustee, in lieu of delivering a new Debt Security or Debt
Securities as aforesaid, may make a notation on such Debt Security of the
payment of the redeemed portion thereof.
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ARTICLE FOURTEEN
SINKING FUNDS
Section 14.01. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Debt Securities of a series except as otherwise
specified pursuant to Section 3.01 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Debt Securities
of any series, the amount of any cash sinking fund payment may be subject to
reduction as provided in Section 14.02. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
Section 14.02. Satisfaction of Mandatory Sinking Fund Payments with
----------------------------------------------------
Debt Securities.
---------------
In lieu of making all or any part of a mandatory sinking fund
payment with respect to any Debt Securities of a series in cash, the Company may
at its option, at any time no more than sixteen months and no less than 45 days
prior to the date on which such sinking fund payment is due, deliver to the
Trustee Debt Securities of such series theretofore purchased or otherwise
acquired by the Company, except Debt Securities of such series which have been
redeemed through the application of mandatory sinking fund payments pursuant to
the terms of the Debt Securities of such series, accompanied by a Company Order
instructing the Trustee to credit such obligations and stating that the Debt
Securities of such series were originally issued by the Company by way of bona
fide sale or other negotiation for value, provided that such Debt Securities
shall not have been previously so credited. Such Debt Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
Section 14.03. Redemption of Debt Securities for Sinking Fund.
----------------------------------------------
Not less than 60 days prior to each sinking fund payment date for
any series of Debt Securities (unless a shorter period shall be satisfactory to
the Trustee), 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 that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency or Currencies in which the Debt
Securities of such series are denominated (except as provided pursuant to
Section 3.01 or Section 3.10) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Debt Securities of such series pursuant to
Section 14.02 and whether the Company intends to exercise its rights to make a
permitted optional sinking fund payment with respect to such series. Such
certificate
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shall be irrevocable and upon its delivery the Company shall be obligated to
make the cash payment or payments therein referred to, if any, on or before the
next succeeding sinking fund payment date. In the case of the failure of the
Company to deliver such certificate, the sinking fund payment due on the next
succeeding sinking fund payment date for such series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of the Debt
Securities of such series subject to a mandatory sinking fund payment without
the right to deliver or credit Debt Securities as provided in Section 14.02 and
without the right to make any optional sinking fund payment with respect to such
series at such time.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Debt Securities of any particular series shall be applied by the
Trustee (or by the Company or the Guarantor if the Company or the Guarantor is
acting as Paying Agent) on the sinking fund payment date on which such payment
is made (or, if such payment is made before a sinking fund payment date, on the
sinking fund payment date immediately following the date of such payment) to the
redemption of Debt Securities of such series at the Redemption Price specified
in such Debt Securities with respect to the sinking fund. Any sinking fund
moneys not so applied or allocated by the Trustee (or by the Company or the
Guarantor if the Company or the Guarantor is acting as Paying Agent) to the
redemption of Debt Securities shall be added to the next sinking fund payment
received by the Trustee (or if the Company or the Guarantor is acting as Paying
Agent, segregated and held in trust as provided in Section 12.04) for such
series and, together with such payment (or such amount so segregated) shall be
applied in accordance with the provisions of this Section. Any and all sinking
fund moneys with respect to the Debt Securities of any particular series held by
the Trustee (or if the Company or the Guarantor is acting as Paying Agent,
segregated and held in trust as provided in Section 12.04) on the last sinking
fund payment date with respect to Debt Securities of such series and not held
for the payment or redemption of particular Debt Securities of such series shall
be applied by the Trustee (or by the Company or the Guarantor if the Company or
the Guarantor is acting as Paying Agent), together with other moneys, if
necessary, to be deposited (or segregated) sufficient for the purpose, to the
payment of the principal of the Debt Securities of such series at Maturity.
The Trustee shall select or cause to be selected the Debt Securities
to be redeemed upon such sinking fund payment date in the manner specified in
Section 13.03 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 13.04. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon the terms and
in the manner stated in Section 13.06.
On or before each sinking fund payment date, the Company shall pay
to the Trustee (or, if the Company or the Guarantor is acting as Paying Agent,
the Company or the Guarantor shall segregate and hold in trust as provided in
Section 12.04) in cash a sum, in the Currency or Currencies in which Debt
Securities of such series are denominated (except as provided pursuant to
Sections 3.01 or 3.10), equal to the principal and any interest accrued to the
Redemption Date for Debt Securities or portions thereof to be redeemed on such
sinking fund payment date pursuant to this Section.
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Neither the Trustee nor the Company shall redeem any Debt Securities
of a series with sinking fund moneys or mail any notice of redemption of Debt
Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on any Debt
Securities of such series or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) with respect to the Debt
Securities of such series, except that if the notice of redemption shall have
been provided in accordance with the provisions hereof, the Trustee (or the
Company or the Guarantor, if the Company or the Guarantor is then acting as
Paying Agent) shall redeem such Debt Securities if cash sufficient for that
purpose shall be deposited with the Trustee (or segregated by the Company or the
Guarantor) for that purpose in accordance with the terms of this Article. Except
as aforesaid, any moneys in the sinking fund for such series at the time when
any such default or Event of Default shall occur and any moneys thereafter paid
into such sinking fund shall, during the continuance of such default or Event of
Default, be held as security for the payment of the Debt Securities of such
series; provided, however, that in case such default or Event of Default shall
-------- -------
have been cured or waived as provided herein, such moneys shall thereafter be
applied on or prior to the next sinking fund payment date for the Debt
Securities of such series on which such moneys may be applied pursuant to the
provisions of this Section.
ARTICLE FIFTEEN
DEFEASANCE
Section 15.01. Applicability of Article.
------------------------
If, pursuant to Section 3.01, provision is made for the defeasance
of Debt Securities of a series, and if the Debt Securities of such series are
Registered Securities and denominated and payable only in Dollars (except as
provided pursuant to Section 3.01) then the provisions of this Article shall be
applicable except as otherwise specified pursuant to Section 3.01 for Debt
Securities of such series. Defeasance provisions, if any, for Debt Securities
denominated in a Foreign Currency or Currencies may be specified pursuant to
Section 3.01.
Section 15.02. Defeasance Upon Deposit of Moneys or U.S. Government
----------------------------------------------------
Obligations.
-----------
At the Company's option, either (a) the Company and the Guarantor
shall be deemed to have been Discharged (as defined below) from its obligations
with respect to Debt Securities of any series ("legal defeasance option") or (b)
the Company and the Guarantor shall cease to be under any obligation to comply
with any term, provision or condition set forth in Section 10.01 with respect to
Debt Securities of any series (and, if so specified pursuant to Section 3.01,
any other obligation of the Company or the Guarantor or restrictive covenant
added for the benefit of such series pursuant to Section 3.01) ("covenant
defeasance option") at any time after the applicable conditions set forth below
have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of
the Debt Securities of such series (i) money in an amount, or (ii) U.S.
Government Obligations (as defined below) which through the
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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, money in an amount, or (iii) a combination of (i) and (ii),
sufficient, in the opinion (with respect to (i) and (ii)) of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge each
installment of principal (including any mandatory sinking fund payments)
of and premium, if any, and interest on, the Outstanding Debt Securities
of such series on the dates such installments of interest or principal and
premium are due;
(2) such deposit shall not cause the Trustee with respect to the
Debt Securities of that series to have a conflicting interest as defined
in Section 6.08 and for purposes of the Trust Indenture Act with respect
to the Debt Securities of any series;
(3) such deposit 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;
(4) if the Debt Securities of such series are then listed on any
national securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel or a letter or other document from such
exchange to the effect that the Company's exercise of its option under
this Section would not cause such Debt Securities to be delisted;
(5) no Event of Default or event (including such deposit) which,
with notice or lapse of time or both, would become an Event of Default
with respect to the Debt Securities of such series shall have occurred and
be continuing on the date of such deposit and, with respect to the legal
defeasance option only, no Event of Default under Section 5.01(7) or
Section 5.01(8) or event which with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 5.01(7) or Section
5.01(8) shall have occurred and be continuing on the 123rd day after such
date;
(6) with respect to the legal defeasance option, the Company shall
have delivered to the Trustee a ruling from the Internal Revenue Service
to the effect that the Holders of the Debt Securities of such series will
not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance or Discharge or an Opinion of Counsel
based on such ruling or based on a change in the applicable Federal tax
law since the date of the Indenture;
(7) with respect to the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that Holders of the Debt Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of that
covenant defeasance and will be subject to Federal income tax on the same
amounts in the same manner and at the same times as would have been the
case if that covenant defeasance had not occurred; and
(8) the Company and the Guarantor shall each have delivered to the
Trustee an Officer's Certificate and the Company or the Guarantor shall
have delivered to the
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Trustee an Opinion of Counsel, each stating that all conditions precedent
to the legal defeasance or covenant defeasance hereunder have been
complied with.
Notwithstanding the foregoing, if the Company exercises its covenant
defeasance option and an Event of Default under Section 5.01(7) or Section
5.01(8) or event which with the giving of notice or lapse of time, or both,
would become an Event of Default under Section 5.01(7) or Section 5.01(8) shall
have occurred and be continuing on the 123rd day after the date of such deposit,
the obligations of the Company and the Guarantor referred to under the
definition of covenant defeasance option with respect to such Debt Securities
shall be reinstated.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Debt Securities of such series and to have satisfied all the obligations under
this Indenture relating to the Debt Securities of such series (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
the same) and the Guarantor shall have been released from its obligations under
the Guarantee and under this Indenture, except (A) the rights of Holders of Debt
Securities of such series to receive, from the trust fund described in clause
(1) above, payment of the principal of (and premium, if any) and interest on
such Debt Securities when such payments are due, (B) the Company's obligations
with respect to the Debt Securities of such series under Sections 3.04, 3.05,
3.06, 12.03 and 15.03 and (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation 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 from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
Section 15.03. Deposited Moneys and U.S. Government, Obligations to
----------------------------------------------------
Be Held in Trust.
----------------
All moneys and U.S. Government Obligations deposited with the
Trustee pursuant to Section 15.02 in respect of Debt Securities of a series
shall be held in trust and applied by it, in accordance with the provisions of
such Debt Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company or the Guarantor acting as
Paying Agent) as the Trustee may determine, to the Holders of such Debt
Securities, of all sums due and to become due thereon for principal (and
premium, if any) and interest, if any, but such money need not be segregated
from other funds except to the extent required by law.
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The Company and the Guarantor, jointly and severally, shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
15.02 or the principal or interest received in respect thereof, other than any
such tax, fee or other charge which by law is for the account of the Holders of
such Debt Securities.
Section 15.04. Repayment to Company.
--------------------
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any moneys or U.S. Government Obligations held by
them at any time that, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof to
the Trustee, are not required for the payment of the principal of (and premium,
if any) and interest on the Debt Securities of any series for which money or
U.S. Government Obligations have been deposited pursuant to Section 15.02.
The provisions of the last paragraph of Section 12.04 shall apply to
any money held by the Trustee or any Paying Agent under this Article that
remains unclaimed for two years after the Maturity of any series of Debt
Securities for which money or U.S. Government Obligations have been deposited
pursuant to Section 15.02.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
ARAMARK Services, Inc.
By:__________________________________
Name:
Title:
ARAMARK Corporation
By:__________________________________
Name:
Title:
Bank One Trust Company, National Association,
as Trustee
By:__________________________________
Name:
Title
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