================================================================================
CREDIT SUISSE FIRST BOSTON (USA), INC.
as the Company
and
THE CHASE MANHATTAN BANK
as Trustee
SENIOR INDENTURE
Dated as of June 1, 2001
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions................................................................................1
Section 1.02. Other Definitions..........................................................................5
Section 1.03. Incorporation by Reference of Trust Indenture Act..........................................6
Section 1.04. Rules of Construction......................................................................6
ARTICLE 2
THE SECURITIES
Section 2.01. Form and Dating............................................................................6
Section 2.02. Execution and Authentication...............................................................7
Section 2.03. Amount Unlimited; Issuable in Series.......................................................8
Section 2.04. Denomination and Date of Securities; Payments of Interest.................................10
Section 2.05. Registrar and Paying Agent; Agents Generally..............................................11
Section 2.06. Paying Agent to Hold Money in Trust.......................................................12
Section 2.07. Transfer and Exchange.....................................................................12
Section 2.08. Replacement Securities....................................................................15
Section 2.09. Outstanding Securities....................................................................15
Section 2.10. Temporary Securities......................................................................16
Section 2.11. Cancellation..............................................................................16
Section 2.12. CUSIP Numbers.............................................................................16
Section 2.13. Defaulted Interest........................................................................16
Section 2.14. Series May Include Tranches...............................................................17
Section 2.15. Computation of Interest...................................................................17
ARTICLE 3
REDEMPTION
Section 3.01. Applicability of Article..................................................................17
Section 3.02. Notice of Redemption; Partial Redemptions.................................................17
Section 3.03. Payment of Securities Called for Redemption...............................................19
Section 3.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption.............20
Section 3.05. Mandatory and Optional Sinking Funds......................................................20
-i-
TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities.....................................................................22
Section 4.02. Maintenance of Office or Agency...........................................................23
Section 4.03. [Intentionally Omitted]...................................................................23
Section 4.04. Certificate to Trustee....................................................................23
Section 4.05. Reports by the Company....................................................................24
Section 4.06. Calculation of Original Issue Discount....................................................24
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. When Company May Merge, Etc...............................................................24
Section 5.02. Successor Substituted.....................................................................25
ARTICLE 6
DEFAULT AND REMEDIES
Section 6.01. Events of Default.........................................................................25
Section 6.02. Acceleration..............................................................................26
Section 6.03. Other Remedies............................................................................27
Section 6.04. Waiver of Past Defaults...................................................................28
Section 6.05. Control by Majority.......................................................................28
Section 6.06. Limitation on Suits.......................................................................28
Section 6.07. Rights of Holder to Receive Payment.......................................................29
Section 6.08. Collection Suit by Trustee................................................................29
Section 6.09. Trustee May File Proofs of Claim..........................................................29
Section 6.10. Application of Proceeds...................................................................29
Section 6.11. Restoration of Rights and Remedies........................................................30
Section 6.12. Undertaking for Costs.....................................................................31
Section 6.13. Rights and Remedies Cumulative............................................................31
Section 6.14. Delay or Omission Not Waiver..............................................................31
ARTICLE 7
TRUSTEE
Section 7.01. General...................................................................................31
Section 7.02. Certain Rights of Trustee.................................................................32
Section 7.03. Individual Rights of Trustee..............................................................33
Section 7.04. Trustee's Disclaimer......................................................................34
-ii-
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 7.05. Notice of Default.........................................................................34
Section 7.06. Reports by Trustee to Holders.............................................................34
Section 7.07. Compensation and Indemnity................................................................34
Section 7.08. Replacement of Trustee....................................................................35
Section 7.09. Successor Trustee by Merger, Etc..........................................................36
Section 7.10. Eligibility...............................................................................36
Section 7.11. Money Held in Trust.......................................................................36
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01. Defeasance Within One Year of Payment.....................................................36
Section 8.02. Defeasance................................................................................37
Section 8.03. Covenant Defeasance.......................................................................38
Section 8.04. Application of Trust Money................................................................39
Section 8.05. Repayment to Company......................................................................39
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders................................................................40
Section 9.02. With Consent of Holders...................................................................40
Section 9.03. Revocation and Effect of Consent..........................................................41
Section 9.04. Notation on or Exchange of Securities.....................................................42
Section 9.05. Trustee to Sign Amendments, Etc...........................................................42
Section 9.06. Conformity with Trust Indenture Act.......................................................42
ARTICLE 10
MISCELLANEOUS
Section 10.01. Trust Indenture Act of 1939...............................................................43
Section 10.02. Notices...................................................................................43
Section 10.03. Certificate and Opinion as to Conditions Precedent........................................44
Section 10.04. Statements Required in Certificate or Opinion.............................................44
Section 10.05. Evidence of Ownership.....................................................................44
Section 10.06. Rules by Trustee, Paying Agent or Registrar...............................................45
Section 10.07. Payment Date Other than a Business Day....................................................45
Section 10.08. Governing Law.............................................................................45
Section 10.09. No Adverse Interpretation of Other Agreements.............................................45
Section 10.10. Successors................................................................................46
Section 10.11. Duplicate Originals.......................................................................46
-iii-
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 10.12. Separability..............................................................................46
Section 10.13. Table of Contents, Headings, Etc..........................................................46
Section 10.14. Incorporators, Stockholders, Officers and Directors of Company Exempt from
Individual Liability......................................................................46
Section 10.15. Judgment Currency.........................................................................46
-iv-
INDENTURE, dated as of June 1, 2001, between Credit Suisse
First Boston (USA), Inc., a Delaware corporation, as the Company, and The Chase
Manhattan Bank, a
New York banking corporation, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time
to time of its debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration of the Securities, the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Company and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders from
time to time of the Securities or of any and all series thereof and of the
coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Agent" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"Authorized Newspaper" means a newspaper (which, in the case
of The City of
New York, will, if practicable, be The Wall Street Journal
(Eastern Edition) and in the case of London, will, if practicable, be the
Financial Times (London Edition)) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of
New
York or London, as applicable. If it shall be impractical in the opinion of the
Trustee to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient publication
of such notice.
"Board Resolution" means one or more resolutions of the board
of directors of the Company or any authorized committee thereof, certified by
the secretary or an assistant secretary of the Company to have been duly adopted
and to be in full force and effect on the date of certification, and delivered
to the Trustee.
1
"Business Day" means, with respect to any Security, a day that
is not a day on which banking institutions are authorized or required by law or
regulation to close, in the city (or in any of the cities, if more than one)
unless otherwise specified, in which amounts are payable, as specified in the
form of such Security.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's capital stock or equity,
including, without limitation, all Common Stock and Preferred Stock.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's common stock, whether now
outstanding or issued after the date of this Indenture, including, without
limitation, all series and classes of such common stock.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces it pursuant to Article 5 of this
Indenture and thereafter means the successor.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date of this Indenture,
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Trustee Administration.
"Default" means any Event of Default as defined in Section
6.01 and any event that is, or after notice or passage of time or both would be,
an Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 2.03 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Registered Global Securities of that series.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles in the
United States of America at the date of any computation required or permitted
hereunder.
"Holder" or "Securityholder" means the registered holder of
any Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
2
"Indenture" means this Indenture as originally executed or as
it may be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established as contemplated pursuant to Sections 2.01
and 2.03.
"Non-U.S. Person" means a non-U.S. person for purposes of the
United States Internal Revenue Code.
"Officer" means, with respect to the Company, the chairman of
the board of directors, the chief executive officer, the president, the chief
financial officer, the chief administrative officer, the chief accounting
officer, any Managing Director, the treasurer or any assistant treasurer, or the
secretary or any assistant secretary.
"Officers' Certificate" means a certificate signed in the name
of the Company (i) by the chairman of the board of directors, the chief
executive officer, the president, the chief financial officer, the chief
administrative officer, the chief accounting officer or any Managing Director
and (ii) by the treasurer or any assistant treasurer, or the secretary or any
assistant secretary, complying with Section 10.04 and delivered to the Trustee.
Each such certificate shall comply with Section 314 of the Trust Indenture Act
and include (except as otherwise expressly provided in this Indenture) the
statements provided in Section 10.04.
"Opinion of Counsel" means a written opinion signed by legal
counsel, who may be an employee of or counsel to the Company, satisfactory to
the Trustee and complying with Section 10.04. Each such opinion shall comply
with Section 314 of the Trust Indenture Act and include the statements provided
in Section 10.04, if and to the extent required thereby.
"original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of authentication of such Security or (b) the
date of any Security (or portion thereof) for which such Security was issued
(directly or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.02.
"Periodic Offering" means an offering of Securities of a
series from time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such
3
Person's preferred or preference stock, whether now outstanding or issued after
the date of the Indenture, including, without limitation, all series and classes
of such preferred or preference stock.
"Principal" of a Security means the principal amount of, and,
unless the context indicates otherwise, includes any premium payable on, the
Security.
"Registered Global Security" means a Security evidencing all
or a part of a series of Registered Securities, issued to the Depositary for
such series in accordance with Section 2.02, and bearing the legend prescribed
in Section 2.02.
"Registered Security" means any Security registered on the
Security Register (as defined in Section 2.05).
"Responsible Officer" means when used with respect to the
Trustee any officer within the Corporate Trust Office including any Vice
President, Managing Director, Assistant Vice President, Secretary, Assistant
Secretary or Assistant Treasurer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge and familiarity
with the particular subject.
"Securities" means any of the securities, as defined in the
first paragraph of the recitals hereof, that are authenticated and delivered
under this Indenture and, unless the context indicates otherwise, shall include
any coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
outstanding Voting Stock is owned, directly or indirectly, by such Person and
one or more other Subsidiaries of such Person.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor replaces it in accordance with the
provisions of Article 7 and thereafter means such successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, as it may be amended from time to time.
"UCC" means the Uniform Commercial Code, as in effect in each
applicable jurisdiction.
"United States Bankruptcy Code" means the Bankruptcy Reform
Act of 1978, as amended and as codified in Title 11 of the United States Code,
as amended from time to time hereafter, or any successor federal bankruptcy law.
"Unregistered Security" means any Security other than a
Registered Security.
4
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, 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.
"Voting Stock" means with respect to any Person, Capital Stock
of any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Yield to Maturity" means, as the context may require, the
yield to maturity (i) on a series of Securities or (ii) if the Securities of a
series are issuable from time to time, on a Security of such series, calculated
at the time of issuance of such series in the case of clause (i) or at the time
of issuance of such Security of such series in the case of clause (ii), or, if
applicable, at the most recent redetermination of interest on such series or on
such Security, and calculated in accordance with the constant interest method or
such other accepted financial practice as is specified in the terms of such
Security.
SECTION 1.02. OTHER DEFINITIONS. Each of the following terms
is defined in the section set forth opposite such term:
Term Section
---- -------
Authenticating Agent 2.02
cash transaction 7.03
CSFB Corp. 6.01
Dollars 4.02
Events of Default 6.01
Judgment Currency 10.15
mandatory sinking fund payment 3.05
optional sinking fund payment 3.05
Paying Agent 2.05
record date 2.04
Registrar 2.05
Required Currency 10.15
Security Register 2.05
self-liquidating paper 7.03
sinking fund payment date 3.05
tranche 2.14
5
Section 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT. Whenever this Indenture refers to a provision of the Trust Indenture Act,
the provision is incorporated by reference in and made a part of this Indenture.
The following terms used in this Indenture that are defined by the Trust
Indenture Act have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a
Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All other terms used in this Indenture that are defined by the
Trust Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined herein
have the meanings assigned to them therein. If any provision of this Indenture
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control.
Section 1.04. RULES OF CONSTRUCTION. Unless the context
otherwise requires:
(a) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(b) words in the singular include the plural, and words in the
plural include the singular;
(c) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or other
subdivision;
(d) all references to Sections or Articles refer to Sections
or Articles of this Indenture unless otherwise indicated; and
(e) use of masculine, feminine or neuter pronouns should not
be deemed a limitation, and the use of any such pronouns should be construed to
include, where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING. The Securities of each series
shall be substantially in such form or forms (not inconsistent with this
Indenture) as shall be established
6
by or pursuant to one or more Board Resolutions or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this Indenture,
as may be required to comply with any law, or with any rules of any securities
exchange or usage, all as may be determined by the officers executing such
Securities as evidenced by their execution of the Securities. Unless otherwise
so established, Unregistered Securities shall have coupons attached.
SECTION 2.02. EXECUTION AND AUTHENTICATION. The chairman of
the board of directors, the chief executive officer, the president, the chief
financial officer, the chief administrative officer, the chief accounting
officer or any Managing Director and the treasurer or any assistant treasurer or
the secretary or any assistant secretary shall execute the Securities (other
than coupons) for the Company by facsimile or manual signature in the name and
on behalf of the Company. The seal of the Company, if any, shall be reproduced
on the Securities. If an Officer whose signature is on a Security no longer
holds that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent (the "Authenticating Agent") to authenticate Securities
(other than coupons). The Authenticating Agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent.
A Security (other than coupons) shall not be valid until the
Trustee or Authenticating Agent manually signs the certificate of authentication
on the Security. The signature shall be conclusive evidence that the Security
has been authenticated under this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
having attached thereto appropriate coupons, if any, executed by the Company to
the Trustee for authentication together with the applicable documents referred
to below in this Section, and the Trustee shall thereupon authenticate and make
available for delivery such Securities to or upon the written order of the
Company. In authenticating any Securities of a series, the Trustee shall be
entitled to receive prior to the first authentication of any Securities of such
series, and shall be fully protected in relying upon, unless and until such
documents have been superseded or revoked:
(a) any Board Resolution and/or executed supplemental
indenture referred to in Sections 2.01 and 2.03 by or pursuant to which the
forms and terms of the Securities of that series were established;
(b) an Officers' Certificate setting forth the form or forms
and terms of the Securities, stating that the form or forms and terms of the
Securities of such series have been, or will be when established in accordance
with such procedures as shall be referred to therein, established in compliance
with this Indenture; and
7
(c) an Opinion of Counsel substantially to the effect that the
form or forms and terms of the Securities of such series have been, or will be
when established in accordance with such procedures as shall be referred to
therein, established in compliance with this Indenture and that the supplemental
indenture, to the extent applicable, and Securities have been duly authorized
and, if executed and authenticated in accordance with the provisions of the
Indenture and delivered to and duly paid for by the purchasers thereof on the
date of such opinion, would be entitled to the benefits of the Indenture and
would be valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to bankruptcy,
insolvency, reorganization, receivership, moratorium and other similar laws
affecting creditors' rights generally, general principles of equity, and such
other matters as shall be specified therein.
If the Company shall establish pursuant to Section 2.03 that
the Securities of a series or a portion thereof are to be issued in the form of
one or more Registered Global Securities, then the Company shall execute and the
Trustee shall authenticate and make available for delivery one or more
Registered Global Securities that shall represent and (i) shall be denominated
in an amount equal to the aggregate principal amount of all of the Securities of
such series issued in such form and not yet canceled, (ii) shall be registered
in the name of the Depositary for such Registered Global Security or Securities
or the nominee of such Depositary, (iii) shall be delivered by the Trustee to
such Depositary or its custodian or pursuant to such Depositary's instructions
and (iv) shall bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depositary to 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."
SECTION 2.03. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and each
such series shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Company. There shall be established in or pursuant to
a Board Resolution or one or more indentures supplemental hereto, prior to the
initial issuance of Securities of any series (subject to the last sentence of
this Section 2.03);
(a) the designation of the Securities of the series, which
shall distinguish the Securities of the series from the Securities of all other
series;
(b) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture and any limitation on the ability of the Company to increase such
aggregate principal amount after the initial issuance of the Securities of that
series (except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, or upon redemption of, other
Securities of the series pursuant hereto);
8
(c) the date or dates on which the Principal of the Securities
of the series is payable (which date or dates may be fixed or extendible);
(d) the rate or rates (which may be fixed or variable) per
annum at which the Securities of the series shall bear interest, if any, the
date or dates from which such interest shall accrue, on which such interest
shall be payable and (in the case of Registered Securities) on which a record
shall be taken for the determination of Holders to whom interest is payable
and/or the method by which such rate or rates or date or dates shall be
determined;
(e) if other than as provided in Section 4.02, the place or
places where the Principal of and any interest on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for
exchange, notices, demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served and notice to Holders may be
published;
(f) the right, if any, of the Company to redeem Securities of
the series, in whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking fund or
otherwise;
(g) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series pursuant to any mandatory redemption, sinking
fund or analogous provisions or at the option of a Holder thereof and the price
or prices at which and the period or periods within which and any of the terms
and conditions upon which Securities of the series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation;
(h) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series shall be
issuable;
(i) if other than the entire principal amount thereof, the
portion of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(j) if other than the coin or currency in which the Securities
of the series are denominated, the coin or currency in which payment of the
Principal of or interest on the Securities of the series shall be payable or if
the amount of payments of Principal of and/or interest on the Securities of the
series may be determined with reference to an index based on a coin or currency
other than that in which the Securities of the series are denominated, the
manner in which such amounts shall be determined;
(k) if payment of the Principal of and interest on the
Securities of the series shall be payable in currency or currencies other than
the currency of the United States, the manner in which any such currency shall
be valued against other currencies in which any other Securities shall be
payable;
(l) whether the Securities of the series or any portion
thereof will be issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities) or Unregistered
Securities (with or without coupons), or any combination of the
9
foregoing, any restrictions applicable to the offer, sale or delivery of
Unregistered Securities or the payment of interest thereon and, if other than as
provided herein, the terms upon which Unregistered Securities of any series may
be exchanged for Registered Securities of such series and vice versa;
(m) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by non-U.S. persons in
respect of any tax, assessment or governmental charge withheld or deducted and,
if so, whether the Company will have the option to redeem such Securities rather
than pay such additional amounts;
(n) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(o) any trustees, depositaries, authenticating or paying
agents, transfer agents or the registrar or any other agents with respect to the
Securities of the series;
(p) provisions, if any, for the defeasance of the Securities
of the series (including provisions permitting defeasance of less than all
Securities of the series), which provisions may be in addition to, in
substitution for, or in modification of (or any combination of the foregoing)
the provisions of Article 8;
(q) if the Securities of the series are issuable in whole or
in part as one or more Registered Global Securities, the identity of the
Depositary for such Registered Global Security or Securities;
(r) any other events of default or covenants with respect to
the Securities of the series; and
(s) any other terms of the Securities of the series (which
terms shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons, if any,
appertaining thereto shall be substantially identical, except in the case of
Registered Securities as to date and denomination, except in the case of any
Periodic Offering and except as may otherwise be provided by or pursuant to the
Board Resolution referred to above or as set forth in any such indenture
supplemental hereto. All Securities of any one series need not be issued at the
same time and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to such Board Resolution or in any such
indenture supplemental hereto and any forms and terms of Securities to be issued
from time to time may be completed and established from time to time prior to
the issuance thereof by procedures described in such Board Resolution or
supplemental indenture.
SECTION 2.04. DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF
INTEREST. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.03 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any integral multiple
thereof.
10
The Securities of each series shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plan as the Officers of
the Company executing the same may determine, as evidenced by their execution
thereof.
Each Security shall be dated the date of its authentication.
The Securities of each series shall bear interest, if any, from the date, and
such interest and shall be payable on the dates, established as contemplated by
Section 2.03.
The person in whose name any Registered Security of any series
is registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Company shall default in the payment of the
interest due on such interest payment date for such series, in which case the
provisions of Section 2.13 shall apply. The term "record date" as used with
respect to any interest payment date (except a date for payment of defaulted
interest) for the Securities of any series shall mean the date specified as such
in the terms of the Registered Securities of such series established as
contemplated by Section 2.03, or, if no such date is so established, the
fifteenth day next preceding such interest payment date, whether or not such
record date is a Business Day.
SECTION 2.05. REGISTRAR AND PAYING AGENT; AGENTS GENERALLY.
The Company shall maintain an office or agency where Securities may be presented
for registration, registration of transfer or exchange (the "Registrar") and an
office or agency where Securities may be presented for payment (the "Paying
Agent"), which shall be in the Borough of Manhattan, The City of
New York. The
Company shall cause the Registrar to keep a register of the Registered
Securities and of their registration, transfer and exchange (the "Security
Register"). The Company may have one or more additional Paying Agents or
transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement
with any Agent that is not a party to this Indenture. The agreement shall
implement the provisions of this Indenture and the Trust Indenture Act that
relate to such Agent. The Company shall give prompt written notice to the
Trustee of the name and address of any Agent and any change in the name or
address of an Agent. If the Company fails to maintain a Registrar or Paying
Agent, the Trustee shall act as such. The Company may remove any Agent upon
written notice to such Agent and the Trustee; provided that no such removal
shall become effective until (i) the acceptance of an appointment by a successor
Agent to such Agent as evidenced by an appropriate agency agreement entered into
by the Company and such successor Agent and delivered to the Trustee or (ii)
notification to the Trustee that the Trustee shall serve as such Agent until the
appointment of a successor Agent in accordance with clause (i) of this proviso.
The Company or any affiliate of the Company may act as Paying Agent or
Registrar; provided that neither the Company nor an affiliate of the Company
shall act as Paying Agent in connection with the defeasance of the Securities or
the discharge of this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar,
Paying Agent and Authenticating Agent. If, at any time, the Trustee is not the
Registrar, the Registrar shall make
11
available to the Trustee ten days prior to each interest payment date and at
such other times as the Trustee may reasonably request the names and addresses
of the Holders as they appear in the Security Register.
SECTION 2.06. PAYING AGENT TO HOLD MONEY IN TRUST. Not later
than 10:00 a.m.,
New York City time, on each due date of any Principal or
interest on any Securities, the Company shall deposit with the Paying Agent
money in immediately available funds sufficient to pay such Principal or
interest. The Company shall require each Paying Agent other than the Trustee to
agree in writing that such Paying Agent shall hold in trust for the benefit of
the Holders of such Securities or the Trustee all money held by the Paying Agent
for the payment of Principal of and interest on such Securities and shall
promptly notify the Trustee in writing of any default by the Company in making
any such payment. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee and account for any funds disbursed, and the
Trustee may at any time during the continuance of any payment default, upon
written request to a Paying Agent, require such Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed. Upon doing so,
the Paying Agent shall have no further liability for the money so paid over to
the Trustee. If the Company or any affiliate of the Company acts as Paying
Agent, it will, on or before each due date of any Principal of or interest on
any Securities, segregate and hold in a separate trust fund for the benefit of
the Holders thereof a sum of money sufficient to pay such Principal or interest
so becoming due until such sum of money shall be paid to such Holders or
otherwise disposed of as provided in this Indenture, and will promptly notify
the Trustee in writing of its action or failure to act as required by this
Section.
SECTION 2.07. TRANSFER AND EXCHANGE. Unregistered Securities
(except for any temporary global Unregistered Securities) and coupons (except
for coupons attached to any temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Global Security, except as set forth below)
may be exchanged for a Registered Security or Registered Securities of such
series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be exchanged
at the agency of the Company that shall be maintained for such purpose in
accordance with Section 2.05 and upon payment, if the Company shall so require,
of the charges hereinafter provided. If the Securities of any series are issued
in both registered and unregistered form, except as otherwise established
pursuant to Section 2.03, at the option of the Holder thereof, Unregistered
Securities of any series may be exchanged for Registered Securities of such
series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Unregistered Securities to be exchanged
at the agency of the Company that shall be maintained for such purpose in
accordance with Section 4.02, with, in the case of Unregistered Securities that
have coupons attached, all unmatured coupons and all matured coupons in default
thereto appertaining, and upon payment, if the Company shall so require, of the
charges hereinafter provided. At the option of the Holder thereof, if
Unregistered Securities of any series, maturity date, interest rate and original
issue date are issued in more than one authorized denomination, except as
otherwise established pursuant to Section 2.03, such Unregistered Securities may
be exchanged for Unregistered Securities of such series and tenor having
authorized denominations and an equal aggregate principal amount, upon surrender
of
12
such Unregistered Securities to be exchanged at the agency of the Company that
shall be maintained for such purpose in accordance with Section 4.02, with, in
the case of Unregistered Securities that have coupons attached, all unmatured
coupons and all matured coupons in default thereto appertaining, and upon
payment, if the Company shall so require, of the charges hereinafter provided.
Registered Securities of any series may not be exchanged for Unregistered
Securities of such series. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, the Securities which the Holder making the exchange is
entitled to receive.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by, the holder or his
attorney duly authorized in writing.
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
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
Notwithstanding any other provision of this Section 2.07,
unless and until it is exchanged in whole or in part for Securities in
definitive registered form, a Registered Global Security representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global
Securities of any series notifies the Company that it is unwilling or unable to
continue as Depositary for such Registered Global Securities or if at any time
the Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary eligible
under applicable law with respect to such Registered Global Securities. If a
successor Depositary eligible under applicable law for such Registered Global
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of the Company's order for the
authentication and delivery of definitive Registered Securities of such series
and tenor, will authenticate and make available for delivery Registered
Securities of such series and tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered
Global Securities, in exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion
determine that any Registered Global Securities of any series shall no longer be
maintained in global form. In such event the Company will execute, and the
Trustee, upon receipt of the Company's order for the authentication and delivery
of definitive Registered Securities of such series and tenor, will authenticate
and make available for delivery, Registered Securities of such series and tenor
in any authorized denominations, in an aggregate principal amount equal to the
principal amount of such Registered Global Securities, in exchange for such
Registered Global Securities.
13
Any time the Registered Securities of any series are not in
the form of Registered Global Securities pursuant to the preceding two
paragraphs, the Company agrees to supply the Trustee with a reasonable supply of
certificated Registered Securities without the legend required by Section 2.02
and the Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.03 with
respect to any Registered Global Security, the Depositary for such Registered
Global Security may surrender such Registered Global Security in exchange in
whole or in part for Registered Securities of the same series and tenor in
definitive registered form on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause (i) above.
Registered Securities issued in exchange for a Registered
Global Security pursuant to this Section 2.07 shall be registered in such names
and in such authorized denominations as the Depositary for such Registered
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Company
or the Trustee in writing. The Trustee or such agent shall deliver such
Securities to or as directed in writing by the Persons in whose names such
Securities are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of
any Securities to the contrary, none of the Company, the Trustee or any agent of
the Company or the Trustee shall be required to exchange any Unregistered
Security for a Registered Security if such exchange would result in adverse
Federal income tax consequences to the Company (such as, for example, the
inability of the Company to deduct from its income, as computed for Federal
income tax purposes, the interest payable on the Unregistered Securities) under
then applicable United States Federal income tax laws. The Trustee and any such
agent shall be entitled to rely conclusively on an Officers' Certificate or an
Opinion of Counsel in determining such result.
The Registrar shall not be required (i) to issue,
authenticate, register the transfer of or exchange Securities of any series for
a period of 15 days before a selection of such Securities to be redeemed or (ii)
to register the transfer of or exchange any Security selected for redemption in
whole or in part.
14
SECTION 2.08. REPLACEMENT SECURITIES. If a defaced or
mutilated Security of any series is surrendered to the Trustee or if a Holder
claims that its Security of any series has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Security of such series and tenor and principal amount bearing a number not
contemporaneously outstanding. An indemnity bond must be furnished that is
sufficient in the judgment of both the Trustee and the Company to protect the
Company, the Trustee and any Agent from any loss that any of them may suffer if
a Security is replaced. The Company may charge such Holder for its expenses and
the expenses of the Trustee (including without limitation attorneys' fees and
expenses) in replacing a Security. In case any such mutilated, defaced, lost,
destroyed or wrongfully taken Security has become or is about to become due and
payable, the Company in its discretion may pay such Security instead of issuing
a new Security in replacement thereof.
Every replacement Security is an additional obligation of the
Company and shall be entitled to the benefits of this Indenture equally and
proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder.
To the extent permitted by law, the foregoing provisions of
this Section are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or wrongfully taken Securities.
SECTION 2.09. OUTSTANDING SECURITIES. Securities outstanding
at any time are all Securities that have been authenticated by the Trustee
except for those Securities canceled by it, those Securities delivered to it for
cancellation, those paid pursuant to Section 2.08 and those Securities described
in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases
to be outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
If the Paying Agent (other than the Company or an affiliate of
the Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to be
redeemed or repurchased on such date, then on and after such date such
Securities shall cease to be outstanding and interest on them shall cease to
accrue.
A Security does not cease to be outstanding because the
Company or one of its affiliates holds such Security, provided, however, that,
in determining whether the Holders of the requisite principal amount of the
outstanding Securities shall have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company
or any affiliate of the Company shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities as to which a Responsible Officer of the
Trustee has received written notice to be so owned shall be so disregarded. Any
Securities so owned which are pledged by the Company, or by any affiliate of the
Company, as security for loans or other obligations, otherwise than to another
such affiliate of the Company, shall be deemed to be outstanding, if the pledgee
is entitled pursuant to the
15
terms of its pledge agreement and is free to exercise in its discretion the
right to vote such securities, uncontrolled by the Company or by any such
affiliate.
SECTION 2.10. TEMPORARY SECURITIES. Until definitive
Securities of any series are ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Securities of such series. Temporary
Securities of any series shall be substantially in the form of definitive
Securities of such series but may have insertions, substitutions, omissions and
other variations determined to be appropriate by the Officers executing the
temporary Securities, as evidenced by their execution of such temporary
Securities. If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities of any series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series and tenor upon surrender of such temporary Securities
at the office or agency of the Company designated for such purpose pursuant to
Section 4.02, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and make available for delivery in exchange
therefor a like principal amount of definitive Securities of such series and
tenor and authorized denominations. Until so exchanged, the temporary Securities
of any series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 2.11. CANCELLATION. The Company at any time may
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold.
The Registrar, any transfer agent and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee shall cancel all Securities surrendered for transfer, exchange,
payment or cancellation and shall deliver such canceled Securities to the
Company. The Company may not issue new Securities to replace Securities it has
paid in full or delivered to the Trustee for cancellation.
SECTION 2.12. CUSIP NUMBERS. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in use), and
the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in
notices of redemption or exchange as a convenience to Holders and no
representation shall be made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption or
exchange.
SECTION 2.13. DEFAULTED INTEREST. If the Company defaults in a
payment of interest on the Securities, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest plus (to the extent lawful) any interest payable on the
defaulted interest (as may be specified in the terms thereof, established
pursuant to Section 2.03) to the Persons who are Holders on a subsequent special
record date, which shall mean the 15th day next preceding the date fixed by the
Company for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before such special record date, the Company
shall mail to each Holder and to the Trustee a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
16
SECTION 2.14. SERIES MAY INCLUDE TRANCHES. A series of
Securities may include one or more tranches (each a "tranche") of Securities,
including Securities issued in a Periodic Offering. The Securities of different
tranches may have one or more different terms, including authentication dates
and public offering prices, but all the Securities within each such tranche
shall have identical terms, including authentication date and public offering
price. Notwithstanding any other provision of this Indenture, with respect to
Sections 2.02 (other than the fourth paragraph thereof) through 2.04, 2.07,
2.08, 2.10, 3.01 through 3.05, 4.02, 6.01 through 6.14, 8.01 through 8.05 and
9.02, if any series of Securities includes more than one tranche, all provisions
of such sections applicable to any series of Securities shall be deemed equally
applicable to each tranche of any series of Securities in the same manner as
though originally designated a series unless otherwise provided with respect to
such series or tranche pursuant to Section 2.03. In particular, and without
limiting the scope of the next preceding sentence, any of the provisions of such
sections which provide for or permit action to be taken with respect to a series
of Securities shall also be deemed to provide for and permit such action to be
taken instead only with respect to Securities of one or more tranches within
that series (and such provisions shall be deemed satisfied thereby), even if no
comparable action is taken with respect to Securities in the remaining tranches
of that series.
SECTION 2.15. COMPUTATION OF INTEREST. Except as otherwise
specified pursuant to Section 2.03 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
ARTICLE 3
REDEMPTION
SECTION 3.01. APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities of
a series except as otherwise specified as contemplated by Section 2.03 for
Securities of such series.
SECTION 3.02. NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS.
Notice of redemption to the Holders of Registered Securities of any series to be
redeemed as a whole or in part at the option of the Company shall be given by
mailing notice of such redemption by first class mail, postage prepaid, at least
30 days and not more than 60 days prior to the date fixed for redemption to such
Holders of Registered Securities of such series at their last addresses as they
shall appear upon the Security Register of the Company. Notice of redemption to
the Holders of Unregistered Securities of any series to be redeemed as a whole
or in part, who have filed their names and addresses with the Trustee pursuant
to Section 313(c)(2) of the Trust Indenture Act, shall be given by mailing
notice of such redemption, by first class mail, postage prepaid, at least 30
days and not more than 60 days prior to the date fixed for redemption, to such
Holders at such addresses as were so furnished to the Trustee (and, in the case
of any such notice given by the Company, the Trustee shall make such information
available to the Company for such purpose). Notice of redemption to all other
Holders of Unregistered Securities of any series to be redeemed as a whole or in
part shall be published in an Authorized Newspaper in The City of
New York and
in an Authorized Newspaper in London, in each case, once in each of three
successive calendar weeks, the first publication to be not less than 30 days nor
more than 60 days prior to
17
the date fixed for redemption. Any notice which is mailed or published in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice. Failure to give notice by mail,
or any defect in the notice to the Holder of any Security of a series designated
for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP and CINS numbers of the Securities to be redeemed, the date
fixed for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities and, in
the case of Securities with coupons attached thereto, of all coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series and
tenor in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the Company.
On or before 10:00 a.m.,
New York City time, on the redemption
date specified in the notice of redemption given as provided in this Section,
the Company will deposit with the Trustee or with one or more Paying Agents (or,
if the Company is acting as its own Paying Agent, set aside, segregate and hold
in trust as provided in Section 2.06) an amount of money sufficient to redeem on
the redemption date all the Securities of such series so called for redemption
at the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If all of the outstanding Securities of a series are to be
redeemed, the Company will deliver to the Trustee at least 10 days prior to the
last date on which notice of redemption may be given to Holders pursuant to the
first paragraph of this Section 3.02 (or such shorter period as shall be
acceptable to the Trustee) an Officers' Certificate stating that all such
Securities are to be redeemed. If less than all the outstanding Securities of a
series are to be redeemed, the Company will deliver to the Trustee at least 15
days prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.02 (or such shorter
period as shall be acceptable to the Trustee) an Officers' Certificate stating
the aggregate principal amount of such Securities to be redeemed. In case of a
redemption at the election of the Company prior to the expiration of any
restriction on such redemption, the Company shall deliver to the Trustee, prior
to the giving of any notice of redemption to Holders pursuant to this Section,
an Officers' Certificate stating that such redemption is not prohibited by such
restriction.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, pro rata, by lot or in such manner as it
shall deem appropriate and fair, Securities of such series to be redeemed in
whole or in part. Securities may be redeemed in part in multiples equal
18
to the minimum authorized denomination for Securities of such series or any
multiple thereof. The Trustee shall promptly notify the Company in writing of
the Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 3.03. PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on
and after such date (unless the Company shall default in the payment of such
Securities at the redemption price, together with interest accrued to such date)
interest on the Securities or portions of Securities so called for redemption
shall cease to accrue, and the unmatured coupons, if any, appertaining thereto
shall be void and, except as provided in Sections 7.11 and 8.04, such Securities
shall cease from and after the date fixed for redemption to be entitled to any
benefit under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
together with all coupons, if any, appertaining thereto maturing after the date
fixed for redemption, said Securities or the specified portions thereof shall be
paid and redeemed by the Company at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption; provided that
payment of interest becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with coupons attached thereto, to the
Holders of the coupons for such interest upon surrender thereof, and in the case
of Registered Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.04 and 2.13 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the Principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant coupons maturing after
the date fixed for redemption, the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee, if there be furnished to each of
them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Security of any series redeemed in
part only, the Company shall execute and the Trustee shall authenticate and make
available for delivery to or on the order of the Holder thereof, at the expense
of the Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
19
SECTION 3.04. EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY
FOR SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an Officer of the Company and delivered
to the Trustee at least 40 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
SECTION 3.05. MANDATORY AND OPTIONAL SINKING FUNDS. The
minimum amount of any sinking fund payment provided for by the terms of the
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of the Securities of any series is herein referred to as an "optional
sinking fund payment." The date on which a sinking fund payment is to be made is
herein referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the Company may
at its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation pursuant
to Section 2.11, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Company
through any optional sinking fund payment. Securities so delivered or credited
shall be received or credited by the Trustee at the sinking fund redemption
price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, or such shorter period as shall be acceptable to
the Trustee, the Company will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be satisfied
by payment of cash and the portion to be satisfied by credit of specified
Securities of such series and the basis for such credit, (b) stating that none
of the specified Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and
are continuing and (d) stating whether or not the Company intends to exercise
its right to make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund payment which
the Company intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be delivered
to the Trustee in order for the Company to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.11 to the Trustee with such
Officers' Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officers' Certificate shall be irrevocable and upon its receipt
by the Trustee the Company shall become unconditionally obligated to make all
the cash payments or delivery of Securities therein referred to, if any, on or
before the next succeeding sinking fund payment date. Failure of the Company, on
or before any such sixtieth day, to deliver such Officers' Certificate and
Securities specified in this paragraph,
20
if any, shall not constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Company (i) that the mandatory sinking
fund payment for such series due on the next succeeding sinking fund payment
date shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Company will make
no optional sinking fund payment with respect to such series as provided in this
Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or a lesser sum if the Company shall so request with
respect to the Securities of any series), such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price thereof together with accrued
interest thereon to the date fixed for redemption. If such amount shall be
$50,000 (or such lesser sum) or less and the Company makes no such request then
it shall be carried over until a sum in excess of $50,000 (or such lesser sum)
is available. The Trustee shall select, in the manner provided in Section 3.02,
for redemption on such sinking fund payment date a sufficient principal amount
of Securities of such series to absorb said cash, as nearly as may be, and shall
(if requested in writing by the Company) inform the Company of the serial
numbers of the Securities of such series (or portions thereof) so selected.
Securities shall be excluded from eligibility for redemption under this Section
if they are identified by registration and certificate number in an Officers'
Certificate delivered to the Trustee at least 60 days prior to the sinking fund
payment date as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Company or (b) an entity specifically identified
in such Officers' Certificate as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. The
Trustee, in the name and at the expense of the Company (or the Company, if it
shall so request the Trustee in writing) shall cause notice of redemption of the
Securities of such series to be given in substantially the manner provided in
Section 3.02 (and with the effect provided in Section 3.03) for the redemption
of Securities of such series in part at the option of the Company. The amount of
any sinking fund payments not so applied or allocated to the redemption of
Securities of such series shall be added to the next cash sinking fund payment
for such series and, together with such payment, shall be applied in accordance
with the provisions of this Section. Any and all sinking fund moneys held on the
stated maturity date of the Securities of any particular series (or earlier, if
such maturity is accelerated), which are not held for the payment or redemption
of particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
Principal of, and interest on, the Securities of such series at maturity.
On or before 10:00 a.m.,
New York City time, on each sinking
fund payment date, the Company shall pay to the Trustee in cash or shall
otherwise provide for the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following sinking fund
payment date. The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice of redemption
of Securities of such series by operation of the sinking fund during the
continuance of a Default in payment of interest on such Securities or of any
Event of Default except that, where the mailing of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities, provided that it shall have received from the
Company a sum sufficient for such redemption. Except as aforesaid, any moneys in
the sinking fund for such
21
series at the time when any such Default or Event of Default shall occur, and
any moneys thereafter paid into the sinking fund, shall, during the continuance
of such default or Event of Default, be deemed to have been collected under
Article 6 and held for the payment of all such Securities. In case such Event of
Default shall have been waived as provided in Section 6.04 or the Default cured
on or before the sixtieth day preceding the sinking fund payment date in any
year, such moneys shall thereafter be applied on the next succeeding sinking
fund payment date in accordance with this Section to the redemption of such
Securities.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES. The Company shall pay the
Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities with
coupons attached (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only upon presentation and surrender
of the several coupons for such interest installments as are evidenced thereby
as they severally mature. The interest on any temporary Unregistered Securities
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be paid, as to the installments of interest evidenced by
coupons attached thereto, if any, only upon presentation and surrender thereof,
and, as to the other installments of interest, if any, only upon presentation of
such Unregistered Securities for notation thereon of the payment of such
interest. The interest on Registered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only
to the Holders thereof and at the option of the Company may be paid by mailing
checks for such interest payable to or upon the written order of such Holders at
their last addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the
Securities of any series to the contrary, if the Company and a Holder of any
Registered Security so agree or if expressly provided pursuant to Section 2.03,
payments of interest on, and any portion of the Principal of, such Holder's
Registered Security (other than interest payable at maturity or on any
redemption or repayment date or the final payment of Principal on such Security)
shall be made by the Paying Agent, upon receipt from the Company of immediately
available funds by 11:00 a.m.,
New York City time (or such other time as may be
agreed to between the Company and the Paying Agent), directly to the Holder of
such Security (by Federal funds wire transfer or otherwise) if the Holder has
delivered written instructions to the Trustee 15 days prior to such payment date
requesting that such payment will be so made and designating the bank account to
which such payments shall be so made and in the case of payments of Principal
surrenders the same to the Trustee in exchange for a Security or Securities
aggregating the same principal amount as the unredeemed principal amount of the
Securities surrendered. The Trustee shall be entitled to rely on the last
instruction delivered by the Holder pursuant to this Section 4.01 unless a new
instruction is delivered 15 days prior to a payment date. The Company will
indemnify and hold each of the Trustee and any Paying Agent harmless against any
loss, liability or expense (including attorneys' fees) resulting from any act or
omission to act on the part of the Company or any such Holder in connection with
any such agreement or from making any payment in accordance with any such
agreement.
22
The Company shall pay interest on overdue Principal, and
interest on overdue installments of interest, to the extent lawful, at the rate
per annum specified in the Securities.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY. The Company
will maintain in the Borough of Manhattan, The City of
New York, an office or
agency where Securities may be surrendered for registration of transfer or
exchange or for presentation for payment and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be served.
The Company hereby initially designates the Corporate Trust Office of the
Trustee, located in the Borough of Manhattan, The City of New York, as such
office or agency of the Company. 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
address of the Trustee set forth in Section 10.02.
The Company will maintain one or more agencies in a city or
cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on
which the Securities of any series are listed) where the Unregistered
Securities, if any, of each series and coupons, if any, appertaining thereto may
be presented for payment. No payment on any Unregistered Security or coupon will
be made upon presentation of such Unregistered Security or coupon at an agency
of the Company within the United States nor will any payment be made by transfer
to an account in, or by mail to an address in, the United States unless,
pursuant to applicable United States laws and regulations then in effect, such
payment can be made without adverse tax consequences to the Company.
Notwithstanding the foregoing, if full payment in United States Dollars
("Dollars") at each agency maintained by the Company outside the United States
for payment on such Unregistered Securities or coupons appertaining thereto is
illegal or effectively precluded by exchange controls or other similar
restrictions, payments in Dollars of Unregistered Securities of any series and
coupons appertaining thereto which are payable in Dollars may be made at an
agency of the Company maintained in the Borough of Manhattan, The City of New
York.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
SECTION 4.03. [Intentionally Omitted]
SECTION 4.04. CERTIFICATE TO TRUSTEE. The Company will furnish
to the Trustee annually, on or before a date not more than four months after the
end of its fiscal year (which, on the date hereof, is a calendar year), a brief
certificate (which need not contain the statements required by Section 10.04)
from its principal executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company with all conditions and covenants
under this Indenture (such compliance to be determined without regard to any
period
23
of grace or requirement of notice provided under this Indenture) which
certificate shall comply with the requirements of the Trust Indenture Act.
SECTION 4.05. REPORTS BY THE COMPANY. The Company covenants to
file with the Trustee, within 15 days after the Company is required to file the
same with the Commission, copies of the annual reports and of the information,
documents and other reports which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act. Delivery
of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company's compliance with any of
the covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officers' Certificates).
SECTION 4.06. CALCULATION OF ORIGINAL ISSUE DISCOUNT. The
Company shall file with the Trustee promptly at the end of each calendar year a
written notice specifying the amount of original issue discount (including daily
rates and accrual periods) accrued on outstanding Securities as of the end of
such year.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC.. The Company shall
not consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person (other than a consolidation with or merger
with or into a Subsidiary or a sale, conveyance, transfer, lease or other
disposition to a Subsidiary) or permit any Person to merge with or into the
Company unless:
(a) either (x) the Company shall be the continuing Person or
(y) the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or that acquired or leased such property and assets
of the Company shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, all of the obligations of the Company on all of the
Securities and under this Indenture and the Company shall have delivered to the
Trustee an Opinion of Counsel stating that such consolidation, merger or
transfer and such supplemental indenture complies with this provision and that
all conditions precedent provided for herein relating to such transaction have
been complied with and that such supplemental indenture constitutes the legal,
valid and binding obligation of the Company or such successor enforceable
against such entity in accordance with its terms, subject to customary
exceptions; and
(b) the Company shall have delivered to the Trustee an
Officers' Certificate to the effect that immediately after giving effect to such
transaction, no Default shall have occurred and be continuing and an Opinion of
Counsel as to the matters set forth in Section 5.1(a)(y).
SECTION 5.02. SUCCESSOR SUBSTITUTED. Upon any consolidation or
merger, or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the
24
property and assets of the Company in accordance with Section 5.1 of this
Indenture, the successor Person formed by such consolidation or into which the
Company is merged or to which such sale, conveyance, transfer, lease or other
disposition is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" shall
occur with respect to the Securities of any
series if:
(a) the Company defaults in the payment of all or any part of
the Principal of any Security of such series when the same becomes due and
payable at maturity, upon acceleration, redemption or mandatory repurchase,
including as a sinking fund installment, or otherwise;
(b) the Company defaults in the payment of any interest on any
Security of such series when the same becomes due and payable, and such default
continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company in this Indenture with respect to any
Security of such series or in the Securities of such series and such default or
breach continues for a period of 60 days after written notice thereof has been
given to the Company by the Trustee or to the Company and the Trustee by the
Holders of 25% or more in aggregate principal amount of the Securities of all
series affected thereby;
(d) an involuntary case or other proceeding shall be commenced
against the Company or Credit Suisse First Boston Corporation, a Massachusetts
corporation and a wholly-owned subsidiary of the Company ("CSFB Corp."), with
respect to the Company or CSFB Corp. or their respective debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect seeking
the appointment of a trustee, receiver, liquidator, custodian or other similar
official of the Company or CSFB Corp. or for any substantial part of the
property and assets of the Company or CSFB Corp., and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period of 60 days;
or an order for relief shall be entered against the Company or CSFB Corp. under
any bankruptcy, insolvency or other similar law now or hereafter in effect;
(e) the Company or CSFB Corp. (i) commences a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (ii) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or CSFB Corp. or for all or
substantially all of the property and assets of the Company or CSFB Corp., or
(iii) effects any general assignment for the benefit of creditors; or
25
(f) any other Event of Default established pursuant to Section
2.03 with respect to the Securities of such series occurs.
SECTION 6.02. ACCELERATION. (a) If an Event of Default
described in Section 6.01(a) or (b) with respect to the Securities of any series
then outstanding occurs and is continuing, then, and in each and every such
case, except for any series of Securities the Principal of which shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Securities of any such affected
series then outstanding hereunder (each such series treated as a separate class)
by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal amount (or, if the Securities
of any such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series established
pursuant to Section 2.03) of all Securities of such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
(b) If an Event of Default described in Section 6.01(c) or (f)
with respect to the Securities of one or more but not all series then
outstanding, occurs and is continuing, then, and in each and every such case,
except for any series of Securities the Principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount (or, if the Securities of any such series are
Original Issue Discount Securities, the amount thereof accelerable under this
Section) of the Securities of all such affected series then outstanding
hereunder (treated as a single class) by notice in writing to the Company (and
to the Trustee if given by Securityholders), may declare the entire principal
amount (or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to Section 2.03) of all Securities of
all such affected series, and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
(c) If an Event of Default described in Section 6.01(d) or (e)
occurs and is continuing, then the principal amount (or, if any Securities are
Original Issue Discount Securities, such portion of the Principal as may be
specified in the terms thereof established pursuant to Section 2.03) of all the
Securities then outstanding and interest accrued thereon, if any, shall be and
become immediately due and payable, without any notice or other action by any
Holder or the Trustee, to the full extent permitted by applicable law.
(d) If an Event of Default described in Section 6.01(c) or (f)
with respect to the Securities of all series then outstanding, occurs and is
continuing, then, and in each and every such case, either the Trustee or the
Holders of not less than 25% in aggregate principal amount (or, if the
Securities of any outstanding series are Original Issue Discount Securities, the
amount thereof accelerable under this Section) of all Securities of any series
then outstanding hereunder except for any series of Securities the Principal of
which shall have already become due and payable (treated as a single class) by
notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal amount (or, if the Securities
of any such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series established
pursuant to Section 2.03) of all Securities of
26
any series then outstanding, and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal amount (or, if the Securities
are Original Issue Discount Securities, such portion of the Principal as may be
specified in the terms thereof established pursuant to Section 2.03) of the
Securities of any series (or of all the Securities, as the case may be) shall
have been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Securities
of each such series (or of all the Securities, as the case may be) and the
Principal of any and all Securities of each such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such Principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of each
such series to the date of such payment or deposit) and such amount as shall be
sufficient to cover all amounts owing the Trustee under Section 7.07, and if any
and all Events of Default under the Indenture, other than the non-payment of the
Principal of Securities which shall have become due by acceleration, shall have
been cured, waived or otherwise remedied as provided herein, then and in every
such case the Holders of a majority in aggregate principal amount of all the
then outstanding Securities of all such series that have been accelerated
(voting as a single class), by written notice to the Company and to the Trustee,
may waive all defaults with respect to all such series (or with respect to all
the Securities, as the case may be) and rescind and annul such declaration and
its consequences, but no such waiver or rescission and annulment shall extend to
or shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the
Principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and annulled,
the principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the Principal thereof as shall
be due and payable as a result of such acceleration, and payment of such portion
of the Principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 6.03. OTHER REMEDIES. If a payment default or an Event
of Default with respect to the Securities of any series occurs and is
continuing, the Trustee may pursue, in its own name or as trustee of an express
trust, any available remedy by proceeding at law or in equity to collect the
payment of Principal of and interest on the Securities of such series or to
enforce the performance of any provision of the Securities of such series or
this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
27
SECTION 6.04. WAIVER OF PAST DEFAULTS. Subject to Sections
6.02, 6.07 and 9.02, the Holders of at least a majority in principal amount (or,
if the Securities are Original Issue Discount Securities, such portion of the
Principal as is then accelerable under Section 6.02) of the outstanding
Securities of all series affected (voting as a single class), by notice to the
Trustee, may waive an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a Default in the payment
of Principal of or interest on any Security as specified in Section 6.01(a) or
(b) or in respect of a covenant or provision of this Indenture which cannot be
modified or amended without the consent of the Holder of each outstanding
Security affected. Upon any such waiver, such Default shall cease to exist, and
any Event of Default with respect to the Securities of such series arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
Event of Default or impair any right consequent thereto.
SECTION 6.05. CONTROL BY MAJORITY. Subject to Sections 7.01
and 7.02(e), the Holders of at least a majority in aggregate principal amount
(or, if any Securities are Original Issue Discount Securities, such portion of
the Principal as is then accelerable under Section 6.02) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided, that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further, that
the Trustee may take any other action it deems proper that is not inconsistent
with any directions received from Holders of Securities pursuant to this Section
6.05.
SECTION 6.06. LIMITATION ON SUITS. No Holder of any Security
of any series may institute any proceeding, judicial or otherwise, with respect
to this Indenture or the Securities of such series, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given to the Trustee written
notice of a continuing Event of Default with respect to the Securities of such
series;
(b) the Holders of at least 25% in aggregate principal amount
of outstanding Securities of all such series affected shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against any costs, liabilities
or expenses to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
28
(e) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of all such affected
series have not given the Trustee a direction that is inconsistent with such
written request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. RIGHTS OF HOLDER TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Security to receive payment of Principal of or interest, if any, on such
Holder's Security on or after the respective due dates expressed on such
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of
Default with respect to the Securities of any series in payment of Principal or
interest specified in Section 6.01(a) or (b) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount (or such portion thereof as specified
in the terms established pursuant to Section 2.03 of Original Issue Discount
Securities) of Principal of, and accrued interest remaining unpaid on, together
with interest on overdue Principal of, and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest on, the
Securities of such series, in each case at the rate or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in such Securities, and
such further amount as shall be sufficient to cover all amounts owing the
Trustee under Section 7.07.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim for
amounts due the Trustee under Section 7.07) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it
under Section 7.07. Nothing herein contained shall be deemed to empower the
Trustee to authorize or consent to, or accept or adopt on behalf of any Holder,
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. APPLICATION OF PROCEEDS. Any moneys collected by
the Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of Principal
or interest, upon presentation of the several Securities and coupons
appertaining to such Securities in respect of which moneys have been collected
and noting thereon the payment, or issuing Securities of such series and tenor
in reduced principal
29
amounts in exchange for the presented Securities of such series and tenor if
only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 7.07 applicable to the Securities of such series
in respect of which moneys have been collected;
SECOND: In case the Principal of the Securities of
such series in respect of which moneys have been collected
shall not have become and be then due and payable, to the
payment of interest on the Securities of such series in
default in the order of the maturity of the installments of
such interest, with interest (to the extent that such interest
has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto,
without discrimination or preference;
THIRD: In case the Principal of the Securities of
such series in respect of which moneys have been collected
shall have become and shall be then due and payable, to the
payment of the whole amount then owing and unpaid upon all the
Securities of such series for Principal and interest, with
interest upon the overdue Principal, and (to the extent that
such interest has been collected by the Trustee) upon overdue
installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such
series; and in case such moneys shall be insufficient to pay
in full the whole amount so due and unpaid upon the Securities
of such series, then to the payment of such Principal and
interest or Yield to Maturity, without preference or priority
of Principal over interest or Yield to Maturity, or of
interest or Yield to Maturity over Principal, or of any
installment of interest over any other installment of
interest, or of any Security of such series over any other
Security of such series, ratably to the aggregate of such
Principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to
the Company or any other person lawfully entitled thereto.
SECTION 6.11. RESTORATION OF RIGHTS AND REMEDIES. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then, and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored to their
former positions hereunder and thereafter all rights and remedies of the
Company, Trustee and the Holders shall continue as though no such proceeding had
been instituted.
30
SECTION 6.12. UNDERTAKING FOR COSTS. 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 or omitted by it as Trustee, in either case in
respect to the Securities of any series, a court may require any party litigant
in such suit (other than the Trustee) to file an undertaking to pay the costs of
the suit, and the court may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant (other than the
Trustee) in the suit having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.12 does not apply
to a suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than
10% in principal amount of the outstanding Securities of such series.
SECTION 6.13. RIGHTS AND REMEDIES CUMULATIVE. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities in Section 2.08, 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 6.14. 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 an acquiescence therein.
Every right and remedy given by this Article 6 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.
ARTICLE 7
TRUSTEE
SECTION 7.01. GENERAL. The duties and responsibilities of the
Trustee shall be as provided by the Trust Indenture Act and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, unless it receives indemnity satisfactory to it
against any loss, liability or expense. 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 Article 7. The Trustee, prior to the occurrence of an Event
of Default of which a Responsible Officer of the Trustee has actual knowledge
and after the curing of all Events of Default which may have occurred,
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. If an Event of Default to the actual
knowledge of a Responsible Officer of the Trustee has occurred (which has not
been cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Agreement or any Supplement 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.
31
SECTION 7.02. CERTAIN RIGHTS OF TRUSTEE. Subject to Trust
Indenture Act Sections 315(a) through (d):
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any Officers' Certificate,
Opinion of Counsel (or both), 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 person or
persons. The Trustee need not investigate any fact or matter stated in the
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(b) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/or an Opinion of Counsel, which shall
conform to Section 10.4. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such certificate or opinion.
Subject to Sections 7.01 and 7.02, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted to be taken by
it under the provisions of this Indenture upon the faith thereof;
(c) the Trustee may act through its attorneys, Agents,
custodian and nominee not regularly in its employ and shall not be responsible
for the misconduct or negligence of any Agent, attorney, custodian and nominee
appointed with due care;
(d) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically prescribed);
and any Board Resolution may be evidenced to the Trustee by a copy thereof
certified by the secretary or an assistant secretary of the Company;
(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, order or
direction of any of the Holders, unless such Holders shall have offered to the
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities that might be incurred by it in compliance with such request, order
or direction;
(f) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within its
rights or powers or for any action it takes or omits to take in accordance with
the direction of the Holders in accordance with Section 6.05 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;
(g) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in
32
respect of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in reliance thereon; and
(h) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, Officers' Certificate, Opinion of Counsel, Board
Resolution, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require indemnity satisfactory to
it against such expenses or liabilities as a condition to proceeding.
(i) if the Trustee is acting as Paying Agent or Transfer Agent
and Registrar herein the rights and protections afforded the Trustee under this
Article 7 shall also be afforded to such Paying Agent or Transfer Agent and
Registrar.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its affiliates with the
same rights it would have if it were not the Trustee. Any Agent may do the same
with like rights. However, the Trustee is subject to Trust Indenture Act
Sections 310(b) and 311. For purposes of Trust Indenture Act Section 311(b)(4)
and (6), the following terms shall mean:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after delivery of
the goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, ▇▇▇▇ 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, ▇▇▇▇ of exchange,
acceptance or obligation.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The recitals contained
herein and in the Securities (except the Trustee's certificate of
authentication) shall be taken as statements of the Company and not of the
Trustee and the Trustee assumes no responsibility for the correctness of the
same. Neither the Trustee nor any of its agents (i) makes any representation as
to the validity or adequacy of this Indenture or the Securities and (ii) shall
be accountable for the Company's use or application of the proceeds from the
Securities.
33
SECTION 7.05. NOTICE OF DEFAULT. If any Default with respect
to the Securities of any series occurs and is continuing and if such Default is
known to the actual knowledge of a Responsible Officer with the corporate trust
department of the Trustee, the Trustee shall give to each Holder of Securities
of such series notice of such Default within 90 days after it occurs (i) if any
Unregistered Securities of such series are then outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London and (ii) to all Holders of Securities of such series in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, unless such
Default shall have been cured or waived before the mailing or publication of
such notice; provided, however, that, except in the case of a Default in the
payment of the Principal of or interest on any Security, the Trustee shall be
fully protected in withholding such notice if the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. Within 60 days
after each September 15, beginning with September 15, 2001, the Trustee shall
mail to each Holder as and to the extent provided in Trust Indenture Act Section
313(c) a brief report dated as of such September 15, if required by Trust
Indenture Act Section 313(a).
SECTION 7.07. COMPENSATION AND INDEMNITY. The Company shall
pay to the Trustee such compensation as shall be agreed upon in writing from
time to time for its services. The compensation of the Trustee shall not be
limited by any law on compensation of a Trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable out-of-pocket
expenses, disbursements and advances incurred or made by the Trustee. Such
expenses shall include the reasonable compensation and expenses of the Trustee's
agents, counsel and other persons not regularly in its employ.
The Company shall indemnify the Trustee and its Officers,
directors, employees and Agents for, and hold it and them harmless against, any
and all loss, damage, claim or liability or expense (including legal fees and
expenses) including taxes (other than taxes based on the income of the Trustee)
incurred by it or them without negligence or bad faith on its part arising out
of or in connection with the acceptance or administration of this Indenture and
the Securities or the issuance of the Securities or a series thereof or the
trusts hereunder and the performance of its duties under this Indenture and the
Securities, including the costs and expenses of defending itself against or
investigating any claim or liability and of complying with any process served
upon it or any of its officers in connection with the exercise or performance of
any of its powers or duties under this Indenture and the Securities.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee, in its capacity as Trustee, except
money or property held in trust to pay Principal of, and interest on particular
Securities.
The obligations of the Company under this Section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture or the
34
rejection or termination of this Indenture under bankruptcy law or the earlier
resignation or removal of the Trustee. Such additional indebtedness shall be a
senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities or coupons, and the Securities are hereby
subordinated to such senior claim. If the Trustee renders services and incurs
expenses following an Event of Default under Section 6.01(d) or Section 6.01(e)
hereof, the parties hereto and the Holders by their acceptance of the Securities
hereby agree that such expenses are intended to constitute expenses of
administration under any bankruptcy law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. A resignation or removal
of the Trustee as Trustee with respect to the Securities of any series and
appointment of a successor Trustee as Trustee with respect to the Securities of
any series shall become effective only upon the successor Trustee's acceptance
of appointment as provided in this Section 7.08.
The Trustee may resign as Trustee with respect to the
Securities of any series at any time by so notifying the Company in writing. The
Holders of a majority in principal amount of the outstanding Securities of any
series may remove the Trustee as Trustee with respect to the Securities of such
series by so notifying the Trustee in writing and may appoint a successor
Trustee with respect thereto with the consent of the Company. The Company may
remove the Trustee as Trustee with respect to the Securities of any series if:
(i) the Trustee is no longer eligible under Section 7.10 of this Indenture; (ii)
the Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other
public officer takes charge of the Trustee or its property; or (iv) the Trustee
becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect
to the Securities of any series, or if a vacancy exists in the office of Trustee
with respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the outstanding Securities of such series may appoint a successor
Trustee in respect of such Securities to replace the successor Trustee appointed
by the Company. If the successor Trustee with respect to the Securities of any
series does not deliver its written acceptance required by the next succeeding
paragraph of this Section 7.08 within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of a majority in
principal amount of the outstanding Securities of such series may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect thereto.
A successor Trustee with respect to the Securities of any
series shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after the delivery of such written
acceptance, subject to the lien provided for in Section 7.07 and subject to the
payment of any and all amounts then due and owing to the retiring Trustee (i)
the retiring Trustee shall transfer all property held by it as Trustee in
respect of the Securities of such series to the successor Trustee, (ii) the
resignation or removal of the retiring Trustee in respect of the Securities of
such series shall become effective and (iii) the successor Trustee shall have
all the rights, powers and duties of the Trustee in respect of the Securities of
such series under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities of such series.
35
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in the preceding paragraph.
The Company shall give notice of any resignation and any
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee in respect of the Securities of such series
to all Holders of Securities of such series. Each notice shall include the name
of the successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.08, the Company's
obligations under Section 7.07 shall continue for the benefit of the retiring
Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.. If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation or
national banking association, the resulting, surviving or transferee corporation
or national banking association without any further act shall be the successor
Trustee with the same effect as if the successor Trustee had been named as the
Trustee herein; provided that such successor Trustee shall be otherwise
qualified and eligible under this Article 7.
SECTION 7.10. ELIGIBILITY. This Indenture shall always have a
Trustee who satisfies the requirements of Trust Indenture Act Section 310(a).
The Trustee shall have a combined capital and surplus of at least $25,000,000 as
set forth in its most recent published annual report of condition.
SECTION 7.11. MONEY HELD IN TRUST. The Trustee shall not be
liable for interest on any money received by it except as the Trustee may agree
in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law and except for
money held in trust under Article 8 of this Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. DEFEASANCE WITHIN ONE YEAR OF PAYMENT. Except as
otherwise provided in this Section 8.01, the Company may terminate its
obligations under the Securities of any series and this Indenture with respect
to Securities of such series if:
(a) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or wrongfully taken Securities of such
series that have been replaced or Securities of such series that are paid
pursuant to Section 4.01 or Securities of such series for whose payment money or
securities have theretofore been held in trust and thereafter repaid to the
Company, as provided in Section 8.05) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder; or
(b) (i) the Securities of such series mature within one year
or all of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving
36
the notice of redemption, (ii) the Company irrevocably deposits in trust with
the Trustee, as trust funds solely for the benefit of the Holders of such
Securities for that purpose, money or U.S. Government Obligations or a
combination thereof sufficient (unless such funds consist solely of money, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee), without
consideration of any reinvestment, to pay the Principal of and interest on the
Securities of such series to maturity or redemption, as the case may be, and to
pay all other sums payable by it hereunder, and (iii) the Company delivers to
the Trustee an Officers' Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent provided for herein relating to the
satisfaction and discharge of this Indenture with respect to the Securities of
such series have been complied with.
With respect to the foregoing clause (a), only the Company's
obligations under Section 7.07 in respect of the Securities of such series shall
survive. With respect to the foregoing clause (b), only the Company's
obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 in respect
of the Securities of such series shall survive until such Securities of such
series are no longer outstanding. Thereafter, only the Company's obligations in
Sections 7.07 and 8.05 in respect of the Securities of such series shall
survive. After any such irrevocable deposit, the Trustee upon written request
shall acknowledge in writing the discharge of the Company's obligations under
the Securities of such series and this Indenture with respect to the Securities
of such series except for those surviving obligations specified above.
SECTION 8.02. DEFEASANCE. Except as provided below, the
Company will be deemed to have paid and will be discharged from any and all
obligations in respect of the Securities of any series and the provisions of
this Indenture will no longer be in effect with respect to the Securities of
such series (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same); provided that the following
conditions shall have been satisfied:
(a) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the Securities
of such series, for payment of the Principal of and interest on the Securities
of such series, money or U.S. Government Obligations or a combination thereof
sufficient (unless such funds consist solely of money, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without consideration of
any reinvestment and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee, to pay
and discharge the Principal of and accrued interest on the outstanding
Securities of such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as the case may
be;
(b) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit;
37
(d) the Company shall have delivered to the Trustee (i) either
(x) a ruling directed to the Trustee received from the Internal Revenue Service
to the effect that the Holders of the Securities of such series will not
recognize income, gain or loss for federal income tax purposes as a result of
the Company's exercise of its option under this Section 8.02 and will be subject
to federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit and defeasance had not
occurred or (y) an Opinion of Counsel to the same effect as the ruling described
in clause (x) above and (ii) an Opinion of Counsel to the effect that the
Holders of the Securities of such series have a valid security interest in the
trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the defeasance contemplated by this
Section 8.02 of the Securities of such series have been complied with.
The Company's obligations in Sections 2.02 through 2.12, 4.02,
7.07, 7.08 and 8.05 with respect to the Securities of such series shall survive
until such Securities are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.07 and 8.05 shall survive.
SECTION 8.03. COVENANT DEFEASANCE. The Company may omit to
comply with any term, provision or condition set forth in Section 4.03 (or any
other specific covenant relating to such series provided for in a Board
Resolution or supplemental indenture pursuant to Section 2.03 which may by its
terms be defeased pursuant to this Section 8.03), and such omission shall be
deemed not to be an Event of Default under Section 6.01(c) or (f), with respect
to the outstanding Securities of a series if:
(a) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the Securities
of such series, for payment of the Principal of and interest, if any, on the
Securities of such series, money or U.S. Government Obligations or a combination
thereof in an amount sufficient (unless such funds consist solely of money, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee) without
consideration of any reinvestment and after payment of all federal, state and
local taxes or other charges and assessments in respect thereof payable by the
Trustee, to pay and discharge the Principal of and interest on the outstanding
Securities of such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as the case may
be;
(b) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit;
(d) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (i) the Holders of the Securities of such series have
a valid security interest in the trust funds subject to no prior liens under the
UCC and (ii) such Holders will not recognize income, gain or
38
loss for federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to federal income tax on the same amount and in
the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred; and
(e) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the covenant defeasance contemplated
by this Section 8.03 of the Securities of such series have been complied with.
SECTION 8.04. APPLICATION OF TRUST MONEY. Subject to Section
8.05, the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the
case may be, in respect of the Securities of any series and shall apply the
deposited money and the proceeds from deposited U.S. Government Obligations in
accordance with the Securities of such series and this Indenture to the payment
of Principal of and interest on the Securities of such series; but such money
need not be segregated from other funds except to the extent required by law.
The Company 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 8.01, 8.02 or 8.03 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 outstanding Securities.
SECTION 8.05. REPAYMENT TO COMPANY. Subject to Sections 7.07,
8.01, 8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any money held by
them at any time and not required to make payments hereunder and thereupon shall
be relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
them and required to make payments hereunder under this Indenture that remains
unclaimed for two years; provided that the Trustee or such Paying Agent before
being required to make any payment may cause to be published at the expense of
the Company once in an Authorized Newspaper in The City of New York and once in
an Authorized Newspaper in London or mail to each Holder entitled to such money
at such Holder's address (as set forth in the Security Register) notice that
such money remains unclaimed and that after a date specified therein (which
shall be at least 30 days from the date of such publication or mailing) any
unclaimed balance of such money then remaining will be repaid to the Company.
After payment to the Company, Holders entitled to such money must look to the
Company for payment as general creditors unless an applicable law designates
another Person, and all liability of the Trustee and such Paying Agent with
respect to such money shall cease.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Company and the
Trustee may amend or supplement this Indenture or the Securities of any series
without notice to or the consent of any Holder:
39
(a) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not materially and
adversely affect the interests of the Holders;
(b) to comply with Article 5;
(c) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the Trust Indenture
Act;
(d) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a successor
Trustee;
(e) to establish the form or forms or terms of Securities of
any series or of the coupons appertaining to such Securities as permitted by
Section 2.03;
(f) to provide for uncertificated or Unregistered Securities
and to make all appropriate changes for such purpose;
(g) to provide for a guarantee from a third party on
outstanding Securities of any series and the Securities of any series that may
be issued under this Indenture; or
(h) to make any change that does not materially and adversely
affect the rights of any Holder.
SECTION 9.02. WITH CONSENT OF HOLDERS. Subject to Sections
6.04 and 6.07, without prior notice to any Holders, the Company and the Trustee
may amend this Indenture and the Securities of any series with the written
consent of the Holders of a majority in principal amount of the outstanding
Securities of all series affected by such amendment (all such series voting as
one class), and the Holders of a majority in principal amount of the outstanding
Securities of all series affected thereby (all such series voting as one class)
by written notice to the Trustee may waive future compliance by the Company with
any provision of this Indenture or the Securities of such series.
Notwithstanding the provisions of this Section 9.02, without
the consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.04, may not:
(a) extend the stated maturity of the Principal of, or any
sinking fund obligation or any installment of interest on, such Holder's
Security, or reduce the Principal thereof or the rate of interest thereon
(including any amount in respect of original issue discount), or any premium
payable with respect thereto, or adversely affect the rights of such Holder
under any mandatory redemption or repurchase provision or any right of
redemption or repurchase at the option of such Holder, or reduce the amount of
the Principal of an Original Issue Discount Security that would be due and
payable upon an acceleration of the maturity thereof pursuant to Section 6.02 or
the amount thereof provable in bankruptcy, or change any place of payment where,
or the currency in which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the due date therefor;
40
(b) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is required for
any such supplemental indenture, for any waiver of compliance with certain
provisions of this Indenture or certain Defaults and their consequences provided
for in this Indenture;
(c) waive a Default in the payment of Principal of or interest
on any Security of such Holder; or
(d) modify any of the provisions of this Section 9.02, except
to increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder of
each outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series with respect to such
covenant or provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or of the coupons
appertaining to such Securities.
It shall not be necessary for the consent of any Holder under
this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03. REVOCATION AND EFFECT OF CONSENT. Until an
amendment or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the Security of the
consenting Holder, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to its
Security or portion of its Security. Such revocation shall be effective only if
the Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective. An amendment, supplement or waiver shall
become effective with respect to any Securities affected thereby on receipt by
the Trustee of written consents from the requisite Holders of outstanding
Securities affected thereby.
The Company may, but shall not be obligated to, fix a record
date (which may be not less than 10 nor more than 60 days prior to the
solicitation of consents) for the purpose of determining the Holders of the
Securities of any series affected entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the
immediately preceding paragraph, those Persons who were such Holders at such
record date (or their duly designated proxies) and only those Persons shall be
entitled to consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not
41
such Persons continue to be such Holders after such record date. No such consent
shall be valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective
with respect to the Securities of any series affected thereby, it shall bind
every Holder of such Securities unless it is of the type described in any of
clauses (a) through (d) of Section 9.02. In case of an amendment or waiver of
the type described in clauses (a) through (d) of Section 9.02, the amendment or
waiver shall bind each such Holder who has consented to it and every subsequent
Holder of a Security that evidences the same indebtedness as the Security of the
consenting Holder.
SECTION 9.04. NOTATION ON OR EXCHANGE OF SECURITIES. If an
amendment, supplement or waiver changes the terms of any Security, the Trustee
may require the Holder thereof to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security about the changed terms and return
it to the Holder and the Trustee may place an appropriate notation on any
Security of such series thereafter authenticated. Alternatively, if the Company
or the Trustee so determines, the Company in exchange for the Security shall
issue and the Trustee shall authenticate a new Security of the same series and
tenor that reflects the changed terms.
SECTION 9.05. TRUSTEE TO SIGN AMENDMENTS, ETC.. The Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article 9 is authorized or permitted by this
Indenture, stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to customary exceptions. Subject
to the preceding sentence, the Trustee shall sign such amendment, supplement or
waiver if the same does not adversely affect the rights of the Trustee. The
Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver that affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
SECTION 9.06. CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article 9 shall conform to the
requirements of the Trust Indenture Act as then in effect.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT OF 1939. This Indenture
shall incorporate and be governed by the provisions of the Trust Indenture Act
that are required to be part of and to govern indentures qualified under the
Trust Indenture Act.
SECTION 10.02. NOTICES. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person, when received or
(b) if mailed by first class mail, 5 days after mailing, or (c) as between the
Company and the Trustee if sent by facsimile transmission, when transmission is
confirmed, in each case addressed as follows:
42
if to the Company:
Credit Suisse First Boston (USA), Inc.
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Treasury Department
if to the Trustee:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Institutional Trust Services
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to
Holders of any Unregistered Securities by publication at least once in an
Authorized Newspaper in The City of New York and at least once in an Authorized
Newspaper in London, and by mailing to the Holders thereof who have filed their
names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act at such addresses as were so furnished to the Trustee and to
Holders of Registered Securities by mailing to such Holders at their addresses
as they shall appear on the Security Register. Notice mailed shall be
sufficiently given if so mailed within the time prescribed. Copies of any such
communication or notice to a Holder shall also be mailed to the Trustee and each
Agent at the same time.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
Except as otherwise provided in this Indenture, if a notice or communication is
mailed in the manner provided in this Section 10.02, it is duly given, whether
or not the addressee receives it.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 10.03. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT. Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
43
(a) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.04. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion contained in
such certificate or opinion is based;
(c) a statement that, in the opinion of each such person, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with; provided,
however, that, with respect to matters of fact, an Opinion of Counsel may rely
on an Officers' Certificate or certificates of public officials.
SECTION 10.05. EVIDENCE OF OWNERSHIP. The Company, the Trustee
and any agent of the Company or the Trustee may deem and treat the Holder of any
Unregistered Security and the Holder of any coupon as the absolute owner of such
Unregistered Security or coupon (whether or not such Unregistered Security or
coupon shall be overdue) for the purpose of receiving payment thereof or on
account thereof and for all other purposes, and neither the Company, the
Trustee, nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. The fact of the holding by any Holder of an Unregistered
Security, and the identifying number of such Security and the date of his
holding the same, may be proved by the production of such Security or by a
certificate executed by any trust company, bank, banker or recognized securities
dealer wherever situated satisfactory to the Trustee, if such certificate shall
be deemed by the Trustee to be satisfactory. Each such certificate shall be
dated and shall state that on the date thereof a Security bearing a specified
identifying number was deposited with or exhibited to such trust company, bank,
banker or recognized securities dealer by the person named in such certificate.
Any such certificate may be issued in respect of one or more Unregistered
Securities specified therein. The holding by the person named in any such
certificate of any Unregistered Securities specified therein shall be presumed
to continue for a period of one year from the date of such certificate unless at
the time of any determination of such holding (a) another certificate bearing a
later date issued in respect of the same Securities shall be produced or (b) the
Security specified in such certificate shall be produced by some other Person,
or (c) the Security specified in such certificate shall have ceased to be
outstanding. Subject to Article 7, the fact and date of the execution of any
such instrument and the amount
44
and numbers of Securities held by the Person so executing such instrument may
also be proven in accordance with such reasonable rules and regulations as may
be prescribed by the Trustee or in any other manner which the Trustee may deem
sufficient.
The Company, the Trustee and any agent of the Company or the
Trustee may deem and treat the person in whose name any Registered Security
shall be registered upon the Security Register for such series as the absolute
owner of such Registered Security (whether or not such Registered Security shall
be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the Principal
of and, subject to the provisions of this Indenture, interest on such Registered
Security and for all other purposes; and neither the Company nor the Trustee nor
any agent of the Company or the Trustee shall be affected by any notice to the
contrary.
SECTION 10.06. RULES BY TRUSTEE, PAYING AGENT OR REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting of Holders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 10.07. PAYMENT DATE OTHER THAN A BUSINESS DAY. If any
date for payment of Principal or interest on any Security shall not be a
Business Day at any place of payment, then payment of Principal of or interest
on such Security, as the case may be, need not be made on such date, but may be
made on the next succeeding Business Day at any place of payment with the same
force and effect as if made on such date and no interest shall accrue in respect
of such payment for the period from and after such date.
SECTION 10.08. GOVERNING LAW. The laws of the State of New
York (without regard to conflicts of laws principles thereof) shall govern this
Indenture and the Securities.
SECTION 10.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture or
agreement may not be used to interpret this Indenture.
SECTION 10.10. SUCCESSORS. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All agreements of
the Trustee in this Indenture shall bind its successors.
SECTION 10.11. DUPLICATE ORIGINALS. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
SECTION 10.12. SEPARABILITY. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.13. TABLE OF CONTENTS, HEADINGS, ETC.. The Table of
Contents and headings of the Articles and Sections of this Indenture have been
inserted for convenience of
45
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms and provisions hereof.
SECTION 10.14. INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS OF COMPANY EXEMPT FROM INDIVIDUAL Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture or any
indenture supplemental hereto, or in any Security or any coupons appertaining
thereto, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future stockholder,
officer, director or employee, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
coupons appertaining thereto by the holders thereof and as part of the
consideration for the issue of the Securities and the coupons appertaining
thereto.
SECTION 10.15. JUDGMENT CURRENCY. The Company agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the Principal of or interest on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
day on which final unappealable judgment is entered, unless such day is not a
Business Day in The City of New York, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the Business Day
in The City of New York preceding the day on which final unappealable judgment
is entered and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture.
46
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
CREDIT SUISSE FIRST BOSTON (USA), INC.,
as the Company
[SEAL] By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial and
Administrative Officer
Attest:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Secretary
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Authorized Signatory
47