Exhibit 4.3
USX CORPORATION
as Issuer
and
THE BANK OF NEW YORK
as Trustee
MULTIPLE SERIES INDENTURE
Dated as of , 1997
TABLE OF CONTENTS
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ARTICLE 1.
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION............... 1
Section 1.1 Definitions.............................................. 1
Section 1.2 Form of Documents Delivered to Trustee................... 9
Section 1.3 Notices, etc., to Trustee, Company....................... 10
Section 1.4 Notice to Holders; Waiver................................ 10
Section 1.5 Legal Holidays........................................... 11
Section 1.6 Moneys of Different Currencies To Be Segregated.......... 11
Section 1.7 Payment To Be in Proper Currency......................... 11
Section 1.8 Language of Notices, etc................................. 12
ARTICLE 2.
THE SECURITIES........................... 12
Section 2.1 Amount Unlimited; Issuable in Series.................... 12
Section 2.2 Denominations........................................... 15
Section 2.3 Execution, Authentication, Delivery and Dating.......... 16
Section 2.4 Temporary Securities.................................... 18
Section 2.5 Registration; Registration of Transfer and Exchange..... 21
Section 2.6 Mutilated, Destroyed, Lost and Stolen Securities........ 24
Section 2.7 Persons Deemed Owners................................... 25
Section 2.8 Cancellation............................................ 26
Section 2.9 Payment of Interest; Interest Rights Preserved.......... 26
Section 2.10 Computation of Interest................................. 27
Section 2.11 Currency and Manner of Payments in Respect of Securities 27
Section 2.12 Compliance with Certain Laws and Regulations............ 32
Section 2.13 Security Forms Generally................................ 32
Section 2.14 Form of Trustee's Certificate of Authentication......... 33
Section 2.15 Securities in Global Form............................... 33
ARTICLE 3.
REDEMPTION OF SECURITIES AND SINKING FUNDS............ 34
Section 3.1 Applicability of Article............................... 34
Section 3.2 Mandatory and Optional Sinking Fund Payments........... 34
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Section 3.3 Election to Redeem: Notice to Trustee................... 35
Section 3.4 Selection by Trustee of Securities to be Redeemed....... 35
Section 3.5 Notice of Redemption.................................... 36
Section 3.6 Deposit of Redemption Price............................. 36
Section 3.7 Securities Payable on Redemption Date................... 37
Section 3.8 Securities Redeemed in Part............................. 37
Section 3.9 Satisfaction of Sinking Fund Payments with Securities... 38
Section 3.10 Redemption of Securities for Sinking Fund............... 38
Section 3.11 Redemption of Securities During Event of Default........ 39
ARTICLE 4.
PARTICULAR COVENANTS OF THE COMPANY................ 39
Section 4.1 Payment of Principal, Premium and Interest................ 39
Section 4.2 Maintenance of Office or Agency........................... 39
Section 4.3 Prohibition of Extension of Claims for Interest........... 41
Section 4.4 Appointment to Fill Vacancy of Trustee.................... 41
Section 4.5 Paying Agents: Money for Securities Payments Held in Trust 41
Section 4.6 Compliance Certificate.................................... 42
Section 4.7 Additional Amounts........................................ 43
ARTICLE 5.
SECURITYHOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE..................... 44
Section 5.1 Company To Furnish Trustee Names and Addresses of Holders. 44
Section 5.2 Preservation of Information: Communications to Holders.... 44
Section 5.3 Reports by Company........................................ 45
Section 5.4 Reports by Trustee........................................ 46
ARTICLE 6.
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS IN EVENT OF DEFAULT....................... 47
Section 6.1 Event of Default; Acceleration, Etc..................... 47
Section 6.2 Collection of Indebtedness and Suits for Enforcement by
Trustee............................................... 50
Section 6.3 Application of Money Collected.......................... 51
Section 6.4 Limitation on Suits: Unconditional Rights of Holders.... 52
Section 6.5 Remedies Cumulative, Restoration of Rights and Remedies. 53
Section 6.6 Control by Holders: Waiver of Past Default.............. 54
Section 6.7 Notice of Defaults...................................... 54
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Section 6.8 Undertaking for Costs............................... 54
Section 6.9 Special Record Date for Consents.................... 55
ARTICLE 7.
CONCERNING THE TRUSTEE.................... 55
Section 7.1 Certain Duties and Responsibilities................... 55
Section 7.2 Certain Rights of Trustee............................. 56
Section 7.3 Not Responsible for Recitals or Issuance of
Securities......................................... 57
Section 7.4 May Hold Securities................................... 57
Section 7.5 Money Held in Trust................................... 58
Section 7.6 Compensation and Reimbursement........................ 58
Section 7.7 Right to Rely on Officers' Certificate................ 58
Section 7.8 Disqualification: Conflicting Interests.............. 58
Section 7.9 Corporate Trustee Required; Eligibility............... 64
Section 7.10 Resignation and Removal: Assignment of Successor...... 65
Section 7.11 Acceptance of Appointment by Successor................ 67
Section 7.12 Merger, Conversion, Consolidation, Etc................ 68
Section 7.13 Preferential Collection of Claims Against Company..... 68
Section 7.14 Appointment of Authenticating Agent................... 72
Section 7.15 Judgment Currency..................................... 74
Section 7.16 Corporate Trust Office................................ 74
ARTICLE 8.
CONCERNING THE SECURITYHOLDERS................ 74
Section 8.1 Acts of Holders..................................... 74
Section 8.2 Authenticity of Instruments......................... 75
Section 8.3 Authenticity of Bearer Securities................... 75
Section 8.4 Determination of Principal Amounts of Original Issue
Discount Securities and Securities in Foreign
Currencies....................................... 76
Section 8.5 Company Solicitation of Holder...................... 76
ARTICLE 9.
SECURITYHOLDERS' MEETING................ 77
Section 9.1 Purposes for Which Meetings May be Called........... 77
Section 9.2 Call, Notice and Place of Meeting................... 77
Section 9.3 Call of Meetings by Company or Holders.............. 77
Section 9.4 Persons Entitled to Vote............................ 78
Section 9.5 Determination of Voting Rights: Conduct and
Adjournment ofMeetings........................... 78
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Section 9.6 Counting Votes and Recording Action of Meetings........... 79
Section 9.7 No Delay in Exercise of Rights............................ 79
Section 9.8 Quorum: Action............................................ 79
Section 9.9 Disregard of Securities Owned by Company or Controlling
Person................................................ 80
ARTICLE 10.
SUPPLEMENTAL INDENTURES......................... 81
Section 10.1 Supplemental Indentures Without Consent of Holders......... 81
Section 10.2 Supplemental Indentures With Consent of Holders............ 82
Section 10.3 Effect of Supplemental Indentures.......................... 84
Section 10.4 Reference in Securities to Supplemental Indentures......... 84
ARTICLE 11.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE................ 85
Section 11.1 Company May Consolidate, Etc. Only on Certain Terms........ 85
Section 11.2 Rights and Duties of Successor Corporation................. 85
ARTICLE 12.
SATISFACTION AND DISCHARGE OF INDENTURE:
UNCLAIMED MONEYS........................... 86
Section 12.1 Satisfaction and Discharge of Indenture.................... 86
Section 12.2 Application of Trust Money................................. 88
Section 12.3 Satisfaction, Discharge and Defeasance of Securities of Any
Series................................................. 88
Section 12.4 Definitions................................................ 89
Section 12.5 Repayment of Money Held by Trustee......................... 90
ARTICLE 13.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS......................... 91
Section 13.1 No Recourse: Exemption from Personal Liability............ 91
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ARTICLE 14.
MISCELLANEOUS PROVISIONS......................... 91
Section 14.1 Successors and Assigns..................................... 91
Section 14.2 Validity of Acts by Successor Corporations................. 91
Section 14.3 Surrender of Powers........................................ 91
Section 14.4 Notices.................................................... 92
Section 14.5 Governing Law.............................................. 92
Section 14.6 Compliance Certificates and Opinions....................... 92
Section 14.7 Effect of Headings and Table of Contents................... 93
Section 14.8 Conflict with Trust Indenture Act.......................... 93
Section 14.9 Benefits of Trust Indenture................................ 93
Section 14.10 No Security Interest....................................... 93
Section 14.11 Execution in Counterparts.................................. 93
Section 14.12 Separability............................................... 93
ARTICLE 15.
SUBORDINATION................................ 93
Section 15.1 Securities Subordinate to Senior Indebtedness.............. 93
Section 15.2 Payment Over of Proceeds Upon Dissolution, Etc............. 94
Section 15.3 Prior Payment of Senior Indebtedness Upon Acceleration of
Securities.............................................. 95
Section 15.4 No Payment When Senior Indebtedness in Default............. 95
Section 15.5 Payment Permitted in Certain Situations.................... 96
Section 15.6 Subrogation to Rights of Holders of Senior Indebtedness.... 96
Section 15.7 Provisions Solely to Define Relative Rights................ 97
Section 15.8 Trustee to Effectuate Subordination........................ 97
Section 15.9 No Waiver of Subordination Provisions...................... 97
Section 15.10 Notice to Trustee.......................................... 98
Section 15.11 Reliance on Judicial Order or Certificate of Liquidating
Agent.................................................. 99
Section 15.12 Trustee Not Fiduciary for Holders of Senior Indebtedness... 99
Section 15.13 Rights of Trustee as Holder of Senior Indebtedness,
Preservation of Trustee's Rights....................... 99
Section 15.14 Article Applicable to Paying Agents........................ 99
Section 15.15 Certain Conversions Deemed Payment......................... 99
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ARTICLE 16.
CONVERSION................................ 100
Section 16.1 Applicability of Article.................................. 100
Section 16.2 Conversion Privilege...................................... 100
Section 16.3 Conversion Procedure...................................... 100
Section 16.4 Fractional Shares......................................... 100
Section 16.5 Taxes on Conversion....................................... 101
Section 16.6 Company to Provide Securities Issuable Upon Conversion.... 101
Section 16.7 Adjustments............................................... 101
Section 16.8 Valuation................................................. 101
Section 16.9 Reorganization of Company................................. 101
Section 16.10 Trustee's Disclaimer...................................... 101
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EXHIBIT A Forms of Certification
EXHIBIT A.1 Form of Certificate to be Given by Person Entitled to Receive
Bearer Security
EXHIBIT A.2 Form of Certificate to be Given by Euro-Clear, CEDEL S.A. and
any other Entity Performing Similar Functions in connection
with the Exchange of Portion of a Temporary Global Security
EXHIBIT A.3 Form of Certificate to be Given by Euro-Clear, CEDEL S.A. and
any other Entity Performing Singular Functions to obtain
Interest prior to an Exchange Date
EXHIBIT A.4 Form of Certificate to be Given by Beneficial Owners to obtain
Interest prior to an Exchange Date
EXHIBIT A.5 Form of Confirmation to be sent to Purchasers of Bearer
Securities
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THIS MULTIPLE SERIES INDENTURE, dated as of __________________, 1997 (the
"Indenture"), is between USX Corporation, a Delaware corporation (the
"Company"), and The Bank of New York, as trustee (the "Trustee").
ARTICLE 1.
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions. The terms defined in this Section 1.1 (except as
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otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section 1.1. All other terms used in
this Indenture which are defined in the Trust Indenture Act of 1939 or which are
by reference therein defined in the Securities Act of 1933 (except as herein
otherwise expressly provided or unless the context otherwise requires) shall
have the meanings assigned to such terms in said Trust Indenture Act and in
said Securities Act as they were in force at the date of the execution of this
Indenture. All accounting terms used herein and not expressly defined shall
have the meaning given to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall mean such accounting
principles which are generally accepted at the date or time of such computation.
The terms "hereof", "herein" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision. Unless the context otherwise requires, the terms defined in
this Article include the plural as well as the singular and the use of the word
"or" in this Indenture is not exclusive.
Certain terms, used principally within an Article of this Indenture, may be
defined in that Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 8.1.
"Affiliate" of any specified Person shall mean any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purpose of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" shall mean the agent of the Trustee, if any, which
at the time shall be appointed and acting pursuant to Section 7.14 of this
Indenture.
"Authorized Newspaper" means a newspaper of general circulation in the
place of publication, printed in the official language of the country of
publication and customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays.
2
Whenever successive weekly publications in an Authorized Newspaper are
authorized or required hereunder, they may be made (unless otherwise expressly
provided herein) on the same or different days of the week and in the same or
different Authorized Newspapers.
"Bearer Security" means any Security which is not registered in the
Security Register as to principal (including without limitation any Security in
temporary or permanent global bearer form).
"Board of Directors" shall mean the Board of Directors, the Executive
Committee of the Board of Directors or any other committee of the Board of
Directors of the Company with authority to act in the matter.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification.
"Business Day," when used with respect to any Place of Payment or place of
publication, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment, place of
conversion of currency, if applicable, or place of publication are authorized or
obligated by or pursuant to law, regulation or executive order to close or as
specified for a series of Securities pursuant to Section 2.1 or as specified for
any Security in such Security.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Depository" has the meaning specified in Section 2.4.
"Company" shall mean USX Corporation, a Delaware corporation, and, subject
to the provisions of Article Eleven, shall also include its successors and
assigns.
"Company Order" and "Company Request" mean, when used with reference to the
Company, a written order or request signed in the name of the Company by its
Chairman of the Board, Chief Executive Officer, President, Chief Operating
Officer, Chief Financial Officer, any Vice President (whether or not designated
by a number or word or words added before or after the title Vice President), or
Treasurer or an Assistant Treasurer, or by its Secretary or an Assistant
Secretary, or its Comptroller or an Assistant Comptroller, as the case may be,
and delivered to the Trustee.
"Component Currency" has the meaning specified in Section 2.11(i).
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"Conversion Agent" means any Person authorized by the Company to facilitate
the conversion of any Security which by its terms is convertible into any other
security of the Company.
"Corporate Trust Office" or "Principal Office of the Trustee" shall mean
the office of the Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the date hereof is
set forth in Section 7.16 of this Indenture, except that with respect to the
presentation of Securities (or Coupons, if any, representing an installment
series of interest) for payment or for registration of transfer and exchange,
such term shall mean the office or the agency of the Trustee in said city at
which at any particular time its corporate agency business shall be conducted.
"Corporation" includes corporations, associations, companies and business
trusts.
"Coupon" or "coupon" means any interest coupon appertaining to a Bearer
Security or Partially Registered Security.
"Currency Conversion Date" has the meaning specified in Section 2.11(e).
"Currency Conversion Rate" has the meaning specified in Section 7.15.
"Defaulted Interest" shall have the meaning specified in Section 2.9.
"Dollar" means the coin or currency of the United States as at the time of
payment is legal tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 2.11(h).
"Dollar Equivalent of the Foreign Currency" has the meaning specified in
Section 2.11(g).
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Euro-clear" means the operator of the Euro-clear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" shall mean any event specified in Section 6.1, continued
for the period of time, if any, and after the giving of notice, if any, therein
designated.
"Exchange Date" has the meaning specified in Section 2.4.
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"Exchange Rate Agent" means an entity appointed by the Company pursuant to
Section 2.11(i) from time to time.
"Exchange Rate Officer's Certificate" means a tested telex or a certificate
setting forth (i) the applicable Official Currency Unit Exchange Rate and (ii)
the Dollar or Foreign Currency or currency unit amounts of principal, premium,
if any, and interest, if any, respectively (on an aggregate basis and on the
basis of a Security having a principal amount of 1,000 in the relevant currency
unit), payable on the basis of such Official Currency Unit Exchange Rate, sent
(in the case of a tested telex) or executed (in the case of a certificate) by
the Treasurer or any Assistant Treasurer of the Company and delivered to the
Trustee; such tested telex or certificate need not comply with Section 14.6.
"Foreign Currency" means a currency issued by the government of any country
other than the United States.
"Fully Registered Security" means any Security registered in the Security
Register as to principal and interest, if any.
"Holder," "holder of Securities" and "Securityholder" or other similar term
shall mean, with respect to a Registered Security, the Person in whose name at
the time a particular Registered Security is registered in the Security Register
and, with respect to a Bearer Security and/or a Coupon, the bearer thereof.
"Indebtedness" shall mean and include, without duplication, all items of
indebtedness or liability (except stockholders' equity) which in accordance with
generally accepted accounting principles would be included in determining total
liabilities as shown on the liability side of a balance sheet as at the date as
of which indebtedness is to be determined; indebtedness secured by any mortgage,
pledge or lien existing on property owned subject to such mortgage, pledge or
lien, whether or not the indebtedness secured thereby shall have been assumed;
and guarantees, endorsements (other than the endorsement of negotiable
instruments for deposit or collection in the ordinary course of business) and
other contingent obligations (whether direct or indirect) in respect of, or to
purchase or otherwise acquire, indebtedness of others except guarantees,
endorsements or contingent obligations in connection with the sale or discount
of accounts receivable, trade acceptances and other paper arising in the
ordinary course of business or conditional sales contracts, chattel mortgages,
leases, trust receipts or repurchase or other obligations arising out of the
sale and/or delivery of equipment in the ordinary course of business.
"Indenture" means this instrument as originally executed or as from time to
time supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities established as contemplated hereunder.
"Interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
5
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" has the meaning specified in Section 2.11(i).
"Maturity" when used with respect to any Security means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Mortgage" shall mean and include any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Officers" Certificate" shall mean a certificate, in the case of the
Company, signed in the name of the Company by its Chairman of the Board, Chief
Executive Officer, President, Chief Operating Officer, Chief Financial Officer,
any Vice President (whether or not designated by a number or word or words added
before or after the title Vice President), or Treasurer or an Assistant
Treasurer, and by its Secretary or an Assistant Secretary, or its Comptroller or
an Assistant Comptroller, as the case may be, and delivered to the Trustee.
"Official Currency Unit Exchange Rate" means with respect to any payment to
be made hereunder, the exchange rate between the relevant currency unit and the
currency or currency unit of payment calculated by the Exchange Rate Agent for
the Securities of the relevant series (in the case of ECU, reported by the
Commission of the European Communities and currently based on the rates in
effect at 2:30 p.m., Brussels time, on the exchange markets of the Component
Currencies of ECU), on the Business Day (in the city in which such Exchange Rate
Agent has its principal office) immediately preceding delivery of any Exchange
Rate Officer's Certificate.
"Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of, or of counsel to, the Company, and who is
acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 6.1.
"Outstanding" when used with respect to Securities means, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation; and
(b) Securities for which payment or redemption money in the necessary
amount and in the required "currency" or currency unit has been theretofore
deposited with
6
the Trustee or any paying agent (other than the Company) in trust for the
holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made; and
(c) Securities in exchange for or in lieu of which other Securities have
been authenticated and delivered or which have been paid pursuant to this
Indenture, unless proof satisfactory to the Trustee is presented that any such
Securities are held by Persons in whose hands any of such Securities is a valid,
binding and legal obligation of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Outstanding Securities or the
number of votes entitled to be cast by each Holder of a Security in respect of
such Security at any such meeting (i) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 6.1, (ii) the principal amount of a Security
denominated in a Foreign Currency or currency unit shall be the Dollar
equivalent (as determined by the Company in good faith) as of the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the Dollar equivalent (as determined by the
Company in good faith) of the amount determined as provided in (i) above) of
such Security, and (iii) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Partially Registered Security" means any Security registered in the
Security Register as to principal only.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest, if any, on any Securities on
behalf of the Company.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
7
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest on the Securities of that series are payable as specified in accordance
with Section 2.1.
"Predecessor Security" or "Predecessor" followed by the title or
designation of a particular Security means every previous Security (or Coupon,
as the case may be) evidencing all or a portion of the same debt as that
evidenced by such particular Security (or Coupon, as the case may be) and, for
the purposes of this definition, any Security (or Coupon, as the case may be),
authenticated and delivered under Section 2.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security (or Coupon, as the case may be),
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security (or Coupon, as the case may be).
"Redemption Date" when used with respect to any Security to be redeemed in
the currency or currency unit in which such Security is payable, means the date
fixed for such redemption pursuant to this Indenture.
"Redemption Price" when used with respect to any Security to be redeemed
means the price in the currency or currency unit in which such Security is
payable, at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Fully Registered Security or any Partially
Registered Security (including without limitation any Security in temporary or
permanent global registered form) which is registered on the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Fully Registered Securities of any series means the date specified for
that purpose as contemplated by Section 2.1, which date shall be, unless
otherwise specified pursuant to Section 2.1, the fifteenth day preceding such
Interest Payment Date, whether or not such day shall be a Business Day.
"Required Currency" has the meaning specified in Section 1.7.
"Responsible Officer" when used with respect to the Trustee, shall mean the
chairman of the board of directors, the president, any vice president or
assistant vice president, the secretary, the treasurer, or any officer or
employee of the Trustee customarily performing corporate trust functions or to
whom any corporate trust matter is referred because of his knowledge of and
familiarity with the particular subject.
"Securities" shall mean the unsecured debentures, notes, bonds or other
evidences of indebtedness to be issued in one or more series as in this
Indenture provided, and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" shall have the respective
meanings specified in Section 2.5.
8
"Senior Indebtedness" shall mean, with respect to the Company, the
principal, premium, if any, and interest on (i) all indebtedness of the Company,
whether outstanding on the date hereof or hereafter created, incurred or
assumed, which is for money borrowed, or evidenced by a note or similar
instrument given in connection with the acquisition of any business, properties
or assets, including securities, (ii) any indebtedness of others of the kinds
described in the preceding clause (i) for the payment of which the Company is
responsible or liable (directly or indirectly, contingently or otherwise) as
guarantor or otherwise and (iii) amendments, renewals, extensions and refundings
of any such indebtedness, unless in any instrument or instruments evidencing or
securing such indebtedness or pursuant to which the same is outstanding, or in
any such amendment, renewal, extension or refunding, it is expressly provided
that such indebtedness is not superior in right of payment to the Securities of
any series. The Senior Indebtedness shall continue to be Senior Indebtedness
and entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of the Senior Indebtedness or
extension or renewal of the Senior Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 2.9.
"Specified Amount" has the meaning specified in Section 2.11(i).
"Stated Maturity" when used with respect to any Security (or Coupon, if
any, representing an installment of interest) or any installment of principal
thereof or interest thereon, means the date specified in such Security (or
Coupon) as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" shall mean, at any given time, any corporation, association or
other business entity of which either stock having by the terms thereof ordinary
voting power to elect a majority of the directors of such entity, whether or not
at the time stock of any other class or classes of such entity shall have or
might have voting power by reason of the happening of any contingency, or other
ownership interest representing more than 50% ownership of an entity, is at the
time, directly or indirectly, owned or controlled by the Company, or by one or
more Subsidiaries of the Company, or by the Company and one or more
Subsidiaries.
"Trustee" shall mean the Person named as the "Trustee" in the first
paragraph of this Instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series, shall mean only
the Trustee with respect to Securities of that series.
"Trust Indenture Act of 1939" shall mean (except as herein otherwise
provided) the Trust Indenture Act of 1939 as it was in force at the date of
execution of this Indenture.
9
"U.S. Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more permanent
global Securities, the Person designated as U.S. Depository by the Company
pursuant to Section 2.1 until a successor U.S. Depository shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter "U.S.
Depository" shall mean or include each Person who is then a U.S. Depository
hereunder, and if at any time there is more than one such Person, "U.S.
Depository" as used with respect to the Securities of any such series shall mean
the U.S. Depository with respect to the Securities of that series.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a nonresident alien individual, a
nonresident alien fiduciary of a foreign estate or trust or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a nonresident alien individual or a
nonresident alien fiduciary of a foreign estate or trust.
"United States" means the United States of America (including the states
and the District of Columbia) and its possessions at the relevant date. As of
the date of these Standard Provisions, the possessions of the United States
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island,
and the Northern Mariana Island.
"Valuation Date" has the meaning specified in Section 2.11(e).
"Warrant Agent" shall mean the agent of the Company authorized to deliver
Securities issuable upon due exercise of warrants.
Section 1.2 Form of Documents Delivered to Trustee. In any case where
--------------------------------------
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
10
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.3 Notices, etc., to Trustee, Company. Any request, demand,
----------------------------------
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office and unless otherwise herein expressly provided, any such document shall
be deemed to be sufficiently made, given, furnished or filed upon its receipt by
a Responsible Officer of the Trustee or
(b) the Company by the Trustee or by any Holder shall be made, given,
furnished or filed in writing to or with the Company, as the case may be,
addressed to it at the office specified in Section 14.4 of this instrument or at
any other address previously furnished in writing to the Trustee by the Company,
as the case may be.
Section 1.4 Notice to Holders; Waiver. Where this Indenture provides for
-------------------------
notice to Holders of any event:
(a) if any of the Securities affected by such event are Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register, within the time prescribed for the giving of such notice, and
(b) if any of the Securities affected by such event are Bearer Securities,
such notice shall be sufficiently given (unless otherwise herein expressly
provided or unless otherwise specified in such Securities) if
(1) published once in an Authorized Newspaper in The City of New York,
London and such other city or cities as may be specified for the Securities of a
series pursuant to Section 2.1 and
(2) mailed in the manner prescribed in (i) above to such Persons who have
filed their names and addresses with the Trustee within the two-year period
preceding such notice and to all Persons whose names are furnished to the
Trustee pursuant to Section 5.1.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Securities shall
affect the
11
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
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 of Securities 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.
Section 1.5 Legal Holidays. Except as otherwise specified as contemplated
--------------
by Section 2.1, in any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities or Coupons, if any) payment of interest or principal (and premium, if
any) need not be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, provided that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, to the next succeeding Business Day at such Place of Payment.
Section 1.6 Moneys of Different Currencies To Be Segregated. The Trustee
-----------------------------------------------
shall segregate moneys, funds and accounts held by the Trustee hereunder in one
currency (or unit thereof) from any moneys, funds or accounts in any other
currencies (or units thereof), notwithstanding any provision herein which would
otherwise permit the Trustee to commingle such amounts.
Section 1.7 Payment To Be in Proper Currency. In the case of any
--------------------------------
Securities denominated in any particular currency or currency unit (the
"Required Currency"), except as otherwise provided herein, therein or in or
pursuant to the related Board Resolution or supplemental indenture, the
obligation of the Company to make any payment of principal, premium or interest
thereon shall not be discharged or satisfied by any tender by the Company, or
recovery by the Trustee, in any currency or currency unit other than the
Required Currency, except to the extent that such tender or recovery shall
result in the Trustee timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is made in other than the
Required Currency, the Trustee may take such actions as it considers appropriate
to exchange such other currency or currency unit for the Required Currency. The
costs and risks of any such exchange, including without
12
limitation the risks of delay and exchange rate fluctuation, shall be borne by
the Company, the Company shall remain fully liable for any shortfall or
delinquency in the full amount of the Required Currency then due and payable and
in no circumstances shall the Trustee be liable therefor. The Company hereby
waives any defense of payment based upon any such tender or recovery which is
not in the Required Currency, or which, when exchanged for the Required Currency
by the Trustee, is less than the full amount of the Required Currency then due
and payable.
Section 1.8 Language of Notices, etc. Any request, demand, authorization,
------------------------
direction, notice, consent or waiver required or permitted under this Indenture
shall be in the English language, except that any published notice may be in an
official language of the country of publication.
ARTICLE 2.
THE SECURITIES
Section 2.1 Amount Unlimited; Issuable in Series. The aggregate principal
------------------------------------
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall distinguish the
Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for in lieu of, other Securities of the series pursuant to Sections
2.4, 2.5, 2.6, 3.8 or 10.4 and except for any Securities which, pursuant to
Section 2.3, are deemed never to have been authenticated and delivered
hereunder);
(c) the date or dates on which the principal of the Securities of the
series is payable or the method of determination thereof;
(d) the rate or rates, or the method of determination thereof, at which
the Securities of the series shall bear interest, if any, the date or dates, or
method of determination thereof, from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable on the Regular
Record Date for any interest payable on any Registered Securities of any
Interest Payment Date;
13
(e) the place or places where the principal of (and premium, if any) and
interest, if any, on Securities and Coupons, if any, of the series shall be
payable and the office or agency for the Securities of the series maintained by
the Company pursuant to Section 4.2;
(f) the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
(g) the obligation, if any, of the Company to redeem, repay or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of
the series shall be redeemed, repaid or purchased, in whole or in part, pursuant
to such obligation;
(h) if other than denominations of $1,000, if registered, and $5,000, if
bearer, and any integral multiple of the applicable denominations for Securities
denominated in Dollars, the denominations in which Securities of the series
shall be issuable;
(i) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration on the Maturity thereof pursuant to Section 6.1;
(j) whether Section 12.3 is not applicable to the Securities of such
series or such other means of satisfaction and discharge as may be specified for
the Securities and Coupons, if any, for a series;
(k) any deletions or modifications of or additions to the Events of
Default set forth in Section 6.1, or covenants of the Company set forth in
Article 4 pertaining to the Securities of the series and application, if any, of
Article 15 to Securities of such series;
(l) the forms the Securities and Coupons, if any, of the series;
(m) if other than such coin or currency of the United States as at the
time of payment is legal tender for payment of public or private debts, the coin
or currency or currencies, or currency unit or units, in which payment of the
principal of (and premium, if any) and interest, if any, on the Securities of
the series shall be payable and the Exchange Rate Agent, if any, for such
series;
(n) if the principal of (and premium, if any) or interest, if any, on the
Securities of the series are to be payable at the election of the Company or a
Holder thereof, or under some or all other circumstances, in a coin or currency
or currencies, or currency unit or units, other than that in which the
Securities are denominated, the period or periods within which, and the terms
and conditions upon which, such election may be made, or the other circumstances
under which the Securities are to be so payable, including without limitation
the application of Section 2.11(b) and any deletions to, modifications of or
additions to the
14
provisions thereof, and any provision requiring the Holder to bear currency
exchange costs by deduction from such payments;
(o) if the amount of payments of principal (and premium, if any) or
interest, if any, on the Securities of the series may be determined with
reference to an index based on (i) a coin or currency or currencies, or currency
unit or units other than that in which the Securities are stated to be payable
or (ii) any method not inconsistent with the provisions of this indenture
specified in or pursuant to such Board Resolution, then in each case (i) and
(ii) the manner in which such amounts shall be determined;
(p) whether the Securities of the series are to be issued as Fully
Registered Securities, Partially Registered Securities or Bearer Securities
(with or without Coupons), or any combination thereof, whether Partially
Registered Securities or Bearer Securities may be exchanged for Fully Registered
Securities of the series and whether Fully Registered Securities may be
exchanged for Partially Registered Securities or Bearer Securities of the series
(if permitted by applicable laws and regulations) and the circumstances under
which and the place or places where any such exchanges, if permitted, may be
made;
(q) whether any Securities of the series are to be issuable initially in
temporary global form with or without coupons and, if so, the name of the Common
Depository with respect to any such temporary global Security, and whether any
Securities of the series are to be issuable in permanent global form with or
without coupons and, if so, the U.S. Depository or Common Depository for such
global Securities and whether beneficial owners of interests in any such
permanent global Security may exchange such interests for definitive Securities
of such series and of like tenor of any authorized form and denomination and the
circumstances under which (including any certification requirements), and the
place or places where, any such exchanges may occur, if other than in the manner
provided in Section 2.5;
(r) if the Securities and Coupons, if any, of the series are to be issued
upon the exercise of warrants, the time, manner and place for Securities to be
authenticated and delivered;
(s) whether and under what circumstances and with what procedures and
documentation the Company will pay additional amounts on the Securities and
Coupons, if any, of the series to any Holder who is a United States Alien
(including a definition of such term), 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 additional amounts
(and the terms of any such option);
(t) whether the Securities of the series are convertible into any other
security of the Company pursuant to the provisions of Article 16 or as otherwise
specified in the Securities of such series;
(u) the Person to whom any interest on any Registered Securities of the
series shall be payable, if other than the Person in whose name that Security
(or one or more
15
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, the manner in which, or the Person to whom, any
interest on any Bearer Securities of the series shall be payable, if otherwise
than upon presentation and surrender of the Coupons appertaining thereto as they
severally mature, the extent to which, or the manner in which, any interest
payable on the temporary global Security on any Interest Payment Date will be
paid if other than in the manner provided in Section 2.4 and the extent to
which, or the manner in which, any interest payable on a permanent global
Security on an Interest Payment Date will be paid;
(v) any paying agents, transfer agents, registrars or other agents with
respect to the Securities of the series; and
(w) if Bearer Securities of the series are to be issuable, (x) whether
interest in respect of any portion of a temporary global Security of the series
payable in respect of any Interest Payment Date prior to the exchange of such
temporary global Security for a permanent global Security or for definitive
Securities of the series shall be paid to any clearing organization with respect
to the portion of such temporary global Security held for its account and, in
such event, the terms and conditions (including any certification requirements)
upon which any such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest Payment
Date, and (y) the terms and conditions (including any certification
requirements) upon which interests in such temporary global Security may be
exchanged for interests in a permanent global Security or for definitive
Securities of the series.
(x) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one series and the, Coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to the Board Resolution referred to above and (subject
to Section 2.3) set forth in such Officers' Certificate referred to above or in
any such indenture supplemental hereto.
At the option of the Company, interest on the Registered Securities of any
series that bears interest may be paid by mailing, on the applicable Interest
Payment Date, a check to the address of the Person entitled thereto as such
address shall appear in the Security Register.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 2.2 Denominations. The Securities of each series shall be
-------------
issuable in such denominations as may be established and specified in accordance
with Section 2.1. In the absence of any such provisions with respect to the
Securities of any series, the Securities
16
of such series denominated in Dollars shall be issuable in denominations of
$1,000, if registered, and $5,000, if bearer, and in any integral multiple of
the applicable denominations. The Securities may bear such letters and numbers
distinguishing the several denominations and the several Securities of each
denomination as may be determined by the Company with the approval of the
Trustee. At the office or agency of the Company to be maintained by the Company
as provided in Section 4.2 and in the manner, subject to the limitations and
upon payment of the charges provided herein, Securities of each series may be
exchanged for a like aggregate principal amount of Securities of such series of
other authorized denominations.
Section 2.3 Execution, Authentication, Delivery and Dating. The
----------------------------------------------
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Chief Executive Officer, its President, its Chief Operating Officer,
its Chief Financial Officer, one of its Vice Presidents (whether or not
designated by a number or word or words added before or after the title Vice
President), its Treasurer or an Assistant Treasurer under its corporate seal
reproduced thereon (which may be by facsimile) and attested by its Secretary or
one of its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile. Any Coupons shall be executed on behalf
of the Company by the manual or facsimile signature of any such officer of the
Company.
Securities and Coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
Coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with the Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and make available for delivery such Securities;
provided, however, that definitive Bearer Securities may only be delivered at an
office or agency outside the United States in exchange for a portion of a Bearer
Security in temporary global form of equal aggregate principal amount and series
and only if (x) prior to such delivery, the owner of such Bearer Security or a
financial institution or clearing organization through which the owner holds
such Bearer Security directly or indirectly, shall have furnished a certificate
in the form set forth in Exhibit A.1 to this Indenture (which certificate and
all other certificates to this Indenture may be changed by the Company pursuant
to an Officers' Certificate), dated no earlier than 15 days prior to the date on
which Euro-clear or CEDEL S.A. (or such other entity performing similar
functions as selected by the Company and approved by the Trustee in its
reasonable discretion), as the case may be, furnishes to the Common Depository,
in accordance with the procedures established in Section 2.4, a certificate in
the form set forth in Exhibit A.2 to this Indenture that relates to all or such
portion of such temporary global Security, and (y) the Person to whom such
certificate is provided does not know or have reason to know that the
information contained in such certificate is false. A confirmation in the form
set forth in Exhibit A.5 to this Indenture shall be sent to each purchaser of a
Bearer Security. If any Bearer Security shall
17
initially be represented by a portion of a temporary global Security, then, for
purposes of this Section and Section 2.4, the notation of a beneficial owner's
interest therein upon exchange for a portion of a permanent global Security
shall be deemed to be delivery of such beneficial owner's interest in such
permanent global Security. Except as permitted by Section 2.6, the Trustee
shall not authenticate and make available for delivery any Bearer Security
unless all appurtenant Coupons for interest then matured have been detached and
cancelled.
If the forms or terms of the Securities of the series and any related
Coupons have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 2.13 and 2.1, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 7.1) shall be fully protected in relying upon, an Opinion of Counsel
stating:
a. if the forms of such Securities and any Coupons have been established
by or pursuant to a Board Resolution as permitted by Section 2.13, that such
forms have been established in conformity with the provisions of this Indenture;
b. if the terms of such Securities and any Coupons have been established
by or pursuant to a Board Resolution as permitted by Section 2.1, that such
terms have been established in conformity with the provisions of this Indenture;
and
c. that such Securities, together with any Coupons appertaining thereto,
when authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company, entitled to the
benefits of the Indenture and enforceable in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
If such forms or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 2.1 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 2.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Registered Security shall be dated the date of its authentication; and
each Bearer Security and any Bearer Security in global form shall be dated as of
the date of original issuance of the indebtedness evidenced by such Bearer
Security.
18
No Security or Coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security,
or the Security to which such Coupon appertains, a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder. Notwithstanding the foregoing, if any Security shall have
been duly authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 2.8 together with a written statement (which
need not comply with Section 14.6 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
Section 2.4 Temporary Securities. Pending the preparation of definitive
--------------------
Securities of any series, the Company may execute, and upon Orders of the
Company, the Trustee shall authenticate and make available for delivery,
temporary Securities which are printed, lithographed, typewritten or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, in registered form or,
if authorized, in bearer form with one or more Coupons or without Coupons, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as evidenced
conclusively by their execution of such Securities. In the case of Securities of
any series, such temporary Securities may be in global form representing all or
a portion of the Outstanding Securities of such series. In the case of any
series issuable as Bearer Securities, such temporary Securities shall be
delivered in compliance with the conditions set forth in Section 2.3.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. Except as
otherwise specified pursuant to Section 2.1(w) with respect to a series of
Securities issuable as Bearer Securities, after the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company
maintained pursuant to Section 4.2 in a Place of Payment for such series for the
purpose of exchange of Securities of such series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured Coupons appertaining thereto), the Company
shall execute and the Trustee or an Authenticating Agent shall authenticate and
make available for delivery in exchange therefor a like aggregate principal
amount of definitive Securities of the same series, of like tenor and of
authorized denominations; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 2.3.
19
All Bearer Securities shall be issued initially in the form of a temporary
global Security, and any such temporary global Security shall, unless otherwise
provided therein, be delivered to the London office of a Depository or common
Depository (the "Common Depository"), for the benefits of Euro-clear and CEDEL
S.A. (and such other entity performing similar functions as selected by the
Company and approved by the Trustee in its reasonable discretion), for credit to
the respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee, or its
agent, definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Company. On
or after the Exchange Date, such temporary global Security shall be surrendered
by the Common Depository to the Trustee or its agent, as the Company's agent for
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such temporary
global security to be exchanged; provided, however, that, unless, otherwise
specified in such temporary global Security, upon such presentation by the
Common Depository, such temporary global Security shall be accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by Euro-
clear or CEDEL S.A. (or such other entity performing similar functions as
selected by the Company and approved by the Trustee in its reasonable
discretion) in each case as to the portion of such temporary global Security
held for its respective account then to be exchanged, each in the form set forth
in Exhibit A.2 to this Indenture. The definitive Securities to be delivered in
exchange for any such temporary global Security shall be in bearer form,
registered form, permanent bearer global form, permanent global registered form,
or any combination thereof, as specified pursuant to Section 2.1, and, if any
combination thereof is so specified, as requested by the beneficial owner
thereof; provided, however, that definitive Securities shall be delivered in
exchange for a portion of a temporary global Security only in compliance with
the requirements of Section 2.3.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the beneficial owner of the Security, or
a financial institution or clearing organization through which the beneficial
owner directly holds such Security, instructs Euro-clear or CEDEL S.A. (or such
other entity performing similar functions as selected by the Company and
approved by the Trustee in its reasonable discretion), as the case may be, to
request such exchange on his behalf and delivers to Euro-clear or CEDEL S.A. (or
such other entity performing similar functions as selected by the Company and
approved by the Trustee in its reasonable discretion), as the case may be, a
certificate in the form set forth in Exhibit A.1 to this Indenture, dated no
earlier than 15 days prior to the date on which Euro-clear or CEDEL S.A. (or
such other entity performing similar functions as selected by the Company and
approved by the Trustee in its reasonable discretion), as the case may be,
furnishes to the
20
Common Depository in accordance with the preceding paragraph a certificate in
the form set forth in Exhibit A.2 to this Indenture that relates to the interest
to be exchanged for definitive Securities. Copies of the certificate in the
form set forth in Exhibit A.1 to this Indenture shall be available from the
offices of Euro-clear, CEDEL S.A. (and such other entity performing similar
functions as selected by the Company and approved by the Trustee in its
reasonable discretion), the Trustee, any Authenticating Agent appointed for such
series of Securities and any Paying Agent appointed for such series of
Securities. Unless otherwise specified in such temporary global Security, any
such exchange shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving definitive Securities
must bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Securities in
person at the offices of Euro-clear or CEDEL S.A. (or such other entity
performing similar functions as selected by the Company and approved by the
Trustee in its reasonable discretion).
The definitive Securities in bearer form to be delivered in exchange for
any portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
pursuant to Section 2.1, interest payable on a temporary global Security on an
Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euro-clear and CEDEL S.A. (and such
other entity performing similar functions as selected by the Company and
approved by the Trustee in its reasonable discretion) on such Interest Payment
Date upon delivery by Euro-clear and CEDEL S.A. (and such other entity
performing similar functions as selected by the Company and approved by the
Trustee in its reasonable discretion) to the Trust of a certificate or
certificates in the form set forth in Exhibit A.3 to this Indenture, for credit
without further interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such
temporary global Security (or to such other accounts as they may direct) on such
Interest Payment Date and who have each delivered to Euro-clear or CEDEL S.A.
(or such other entity performing similar functions as selected by the Company
and approved by the Trustee in its reasonable discretion), as the case may be, a
certificate in the form set forth in Exhibit A.4 to this Indenture. If such
interest Payment Date occurs on or after the Exchange Date, Euro-Clear or CEDEL
S.A. (or such other entity performing similar functions as selected by the
Company and approved by the Trustee in its reasonable discretion), as the case
may be, following the receipt of such certificate, shall exchange, in accordance
with the procedures hereinabove provided, the portion of the temporary global
Security that relates to such certificate for definitive Securities (which, in
the absence of instructions to the contrary, shall be an interest in a permanent
global Security). Any interest so received by Euro-clear or CEDEL S.A. (or such
other entity performing similar functions as selected by the Company and
approved by the Trustee in its reasonable discretion) and not paid as herein
provided shall be returned to the Trustee immediately prior to the expiration of
two years after such Interest Payment Date in order to be repaid to the Company
in accordance with Section 12.5.
21
Section 2.5 Registration; Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at one of its offices or agencies
maintained, in accordance with Section 4.2, a register (being the combined
register of the Security Registrar and all transfer agents designated pursuant
to Section 4.2 for the purpose of registration of transfer of Securities and
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and the registration of transfers
of Registered Securities as herein provided. The Company hereby appoints the
Trustee as the "Security Registrar" for the purpose of registering Registered
Securities and transfers of Registered Securities as herein provided, and for
facilitating exchanges of temporary global Securities for permanent global
Securities or definitive Securities or both, or of permanent global Securities
for definitive Securities, or both, as herein provided.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained for that purpose as
a Place of Payment for such series, the Company shall execute, and the Trustee
or the Authenticating Agent, if any, shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Registered
Securities of the same series (in authorized denominations) of a like aggregate
principal amount.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for Securities in definitive form, a global
Security representing all or a portion of the Securities of a series may not be
transferred except as a whole by the U.S. Depository or Common Depository, as
the case may be, for such series to a nominee of such U.S. Depository or Common
Depository or by a nominee of such U.S. Depository or Common Depository to such
U.S. Depository or Common Depository or another nominee of such U.S. Depository
or Common Depository or by such U.S. Depository or Common Depository or any such
nominee to a successor U.S. Depository or Common Depository for such series or a
nominee of such successor U.S. Depository or Common Depository.
At the option of the Holder, Registered Securities of any series (other
than a global Security, except as set forth below) may be exchanged for other
Registered Securities of the same series of any authorized denominations, of a
like aggregate principal amount and tenor, upon surrender of the Registered
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee or the
Authenticating Agent, if any, shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive. Unless otherwise
determined by the Company, Bearer Securities may not be delivered by the Trustee
in exchange for Registered Securities.
At the option of the Holder, except as otherwise specified pursuant to
Section 2.1(w) with respect to a global Security, Bearer Securities of any
series may be exchanged for Registered Securities (if the Securities of such
series are issuable as Registered Securities) or Bearer Securities (if Bearer
Securities of such series are issuable in more than one denomination) of the
same series, of any authorized denominations and of a like aggregate
22
principal amount and tenor, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured Coupons (except as
provided below) and all matured Coupons in default thereto appertaining. If the
Holder of a Bearer Security is unable to produce any such unmatured Coupon or
Coupons or mature Coupon or Coupons in default, such exchange may be effected if
the Bearer Securities are accompanied by payment in funds acceptable to the
Company in an amount equal to the face amount of such missing Coupon or Coupons,
or the surrender of such missing Coupon or Coupons, may be waived by the Company
and the Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
Coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 4.2, interest represented by
Coupons shall be payable only upon presentation and surrender of those Coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified pursuant to
Section 2.1, any permanent global Security shall be exchangeable pursuant to
this Section only as provided in this paragraph. If at any time the U.S.
Depository or Common Depository for the Securities of a series notifies the
Company that it is unwilling or unable to continue as U.S. Depository or Common
Depository, as the case may be, for the Securities of such series or if at any
time the U.S. Depository for the Securities of such series shall no longer be
eligible under Section 2.15, the Company shall appoint a successor U.S.
Depository or Common Depository, as the case may be, with respect to the
Securities of such series. If (a) a successor U.S. Depository or Common
Depository, as the case may be, for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, (thereby automatically making the
Company's election pursuant to Section 2.1(q) no longer effective with respect
to the Securities of such series), (b) the beneficial owners of interests in a
permanent global Security are entitled to exchange such interests for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified pursuant to Section 2.1, or (c) the Company in
its sole discretion determines that the Securities of any
23
series issued in the form of one or more global Securities shall no longer be
represented by such global Security or Securities, then without unnecessary
delay but in any event not later than the earliest date on which such interest
may be so exchanged, if appropriate, the Company shall deliver to the Trustee
definitive Securities in aggregate principal amount equal to the principal
amount of such global Security, executed by the Company. On or after the
earliest date on which such interests may be so exchanged, such global Security
shall be surrendered by the U.S. Depository or Common Depository as, the case
may be, to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities upon
payment, at the option of the Company, of a service charge for such exchange and
of a proportionate share of the cost of printing such definitive Securities, and
the Trustee shall authenticate and deliver, (a) to each Person specified by the
U.S. Depository, or Common Depository, as the case may be, in exchange for each
portion of such global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor as the portion of such global Security to be exchanged which, unless the
Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified pursuant to Section 2.1, shall be in the
form of Bearer Securities or Registered Securities, or any combination thereof,
as shall be specified by the beneficial owner thereof and (b) to such U.S.
Depository or Common Depository, as the case may be, a global Security in a
denomination equal to the difference, if any, between the principal amount of
the surrendered global Security and the aggregate principal amount of definitive
Securities delivered to Holders thereof; provided, however, that no such
exchanges may occur during a period beginning at the beginning of 15 Business
Days before any selection of Securities of that series to be redeemed and ending
on the relevant Redemption Date; and provided, further, that no Bearer Security
delivered in exchange for a portion of a global Security shall be mailed or
otherwise delivered to any location in the United States; and provided, further,
that no definitive Bearer Security shall be delivered in exchange for a global
Security unless the Company or its agent shall have received from the Person
entitled to receive such definitive Security a certificate substantially in the
form of Exhibit A.1 to this Indenture. If a Registered Security is issued in
exchange for any portion of a permanent global Security after the close of
business at the office or agency where such exchange occurs on (i) any Regular
Record Date and before the opening of business at such office of agency of the
relevant Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, interest or Defaulted Interest, as the case may
be, will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but will be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, only to the Person to whom Interest in respect of such portion of such
permanent global Security is payable in accordance with the provisions of this
Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
24
Every Registered Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee or the
Authenticating Agent, if any) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing and such other documentation as the Trustee may reasonably require.
The Company may require payment of a service charge for any registration of
transfer or exchange of Securities, and may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 2.4, 3.8 or 10.4 not involving any transfer.
In the event of any redemption in part, the Company shall not be required:
(i) to issue, register the transfer or exchange Securities of any series during
a period beginning at the opening of 15 Business Days before any selection of
Securities of that series to be redeemed and ending at the close of business on
(A) if Securities of the series are issuable only as Registered Securities, the
day of the mailing of the relevant notice of redemption and (B) if Securities of
the series are issuable only as Bearer Securities, the day of the first
publication of the relevant notice of redemption or, (C) if Securities of the
series are issuable as Registered Securities and Bearer Securities and there is
no publication, the day of mailing of the relevant notice of redemption, or (ii)
to register the transfer or exchange of any Registered Security so selected for
redemption, in whole or in part, except the unredeemed portion of any Security
being redeemed in part, or (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a Registered
Security of that series and like tenor; provided that such Registered Security
shall be simultaneously surrendered for redemption.
Section 2.6 Mutilated, Destroyed, Lost and Stolen Securities. If any
------------------------------------------------
mutilated Security or Security with a mutilated Coupon appertaining to it is
surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding with Coupons corresponding to the Coupons, if
any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the mutilation, destruction, loss or theft of any
Security or Coupon, and (ii) such security or indemnity as may be required by
them to save each of them, and any agent of either of them harmless, then, in
the absence of notice to the Company, the or the Trustee that such Security or
Coupon has been acquired by a bona fide purchaser, the Company shall execute and
upon its request the Trustee or the Authenticating Agent, if any, shall
authenticate and make available for delivery in lieu of any such destroyed, lost
or stolen Security or in exchange for the Security to which a destroyed, lost or
stolen Coupon appertains (upon surrender to the Trustee of such Security with
all appurtenant Coupons not destroyed, lost or stolen), a new Security of the
same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with Coupons
25
corresponding to the Coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
Coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security or Coupon as otherwise required above, pay
such Security or Coupon; provided, however, that principal of (and premium, if
any) and interest on Bearer Securities shall, except as otherwise provided in
Section 4.2, be payable only at an office or agency located outside the United
States and, unless otherwise specified pursuant to Section 2.1, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security or Coupon under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee or the Authenticating
Agent, if any) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security or Coupon shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities or Coupons of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons.
Section 2.7 Persons Deemed Owners. Prior to due presentment of a
---------------------
Registered Security for registration of transfer, the Company, the Trustee, the
Authenticating Agent, if any, and any agent of the Company, or Trustee may treat
the Person in whose name such Registered Security is registered as the absolute
owner of such Security for the purpose of receiving payment of principal of (and
premium, if any), and (subject to Sections 2.5 and 2.9) interest on, such
Security and for all other purposes whatsoever whether or not such Security be
overdue, and notwithstanding any notation of ownership or other writing thereon,
neither the Company, the Trustee, the Authenticating Agent, if any, nor any
agent of the Company, or the Trustee shall be affected by notice or knowledge to
the contrary.
Title to any Bearer Security and any Coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder of any Bearer Security and the Holder of any Coupon
as the absolute owner of such Security or Coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or Coupon be overdue, and neither the Company, the
Trustee nor the agent of the Company or the Trustee shall be affected by notice
or knowledge to the contrary.
26
Section 2.8 Cancellation. Unless otherwise provided with respect to a
------------
series of Securities, all Securities and Coupons surrendered for payment,
redemption, transfer or exchange or for credit against any sinking fund payment
shall if surrendered to the Company, or any agent of the Company, be delivered
to the Trustee and all such Securities and Coupons so delivered shall be
promptly cancelled by the Trustee. All Bearer Securities and Coupons held by
the Trustee pending such cancellation shall be deemed to be delivered for
cancellation for all purposes of this Indenture and the Securities. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be Promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. The Trustee may destroy, unless otherwise agreed to by the Company,
all cancelled Securities and Coupons and, in which case, Trustee shall deliver a
certificate of such destruction to the Company.
Section 2.9 Payment of Interest; Interest Rights Preserved. Unless
----------------------------------------------
otherwise specified pursuant to Section 2.1 with respect to any series of
Securities, interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in either clause (1) or (2) below:
(a) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Registered
Security of such series and the date of the proposed payment (subject to the
limitations on fixing the Special Record Date set forth below), and at the same
time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date the
name and at the expense of
27
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given as provided in Section
1.4, to each holder of Registered Securities of such series, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so given,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(b) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment, shall be deemed practicable by the Trustee.
Defaulted Interest on any Bearer Security shall be paid upon presentation
of the applicable Coupon for payment.
Subject to the foregoing provisions of this Section and Section 2.5, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 2.10 Computation of Interest. Except as otherwise specified
-----------------------
pursuant to Section 2.1 for Securities of any series, interest on the Securities
of each series shall be computed on the basis of a 360-day year of twelve 30-day
months.
Section 2.11 Currency and Manner of Payments in Respect of Securities.
--------------------------------------------------------
The provisions of this Section shall apply to the Securities of any series
unless otherwise specified pursuant to Section 2.1.
(a) The following payment provisions shall apply to any Registered
Security of any series denominated in Dollars, a Foreign Currency or any
currency unit, including without limitation ECU, except as provided in paragraph
(b) below:
(1) Except as provided in subparagraph (a)(2) or in paragraph (e) below,
payment of principal and premium, if any, on such Registered Security will be
made at the Place of Payment by delivery of a check in the currency or currency
unit in which the Security is denominated on the payment date against surrender
of such Registered Security, and any interest on any Registered Security will be
paid at the Place of Payment by mailing a check in the currency or currency unit
in which such interest is payable (which shall be the same as that in which the
Security is denominated unless otherwise provided) to the Person entitled
thereto at the address of such Person appearing on the Security Register.
28
(2) Payment of the principal of, premium, if any, and interest, if any, on
such Security, may also, subject to applicable laws and regulations, be made at
other place or places as may be designated by the Company by any appropriate
method.
(b) With respect to any Registered Security of any series denominated in
any currency unit, including without limitation ECU, if the following provisions
(or any substitute therefor, or addition thereto, not inconsistent with this
Indenture) are established pursuant to Section 2.1 and if the Company has not,
before delivery of the election referred to in clause (1) below, deposited funds
or securities in compliance with Section 12.1 or clause (a) or (if specified
pursuant to Section 2.1) clause (b) of Section 12.3 the following payment
provisions shall apply to any payment to be made prior to the giving of any
notice to Holders of any election to redeem pursuant to Section 3.5, except as
otherwise provided in paragraphs (e) and (f) below:
(1) A Holder of Securities of a series shall have the option to elect to
receive payments of principal of, premium, if any, and interest, if any, on such
Securities in a currency or currency unit (including Dollars), other than that
in which the Security is denominated. Such election, as designated in the
certificates for such Securities (or as provided by Section 2.1 or a
supplemental indenture thereto with respect to uncertificated securities), shall
be made by delivering to the Trustee a written election, to be in form and
substance satisfactory to the Trustee, not later than the close of business in
The City of New York, on the day 15 days prior to the applicable payment date.
Such election will remain in effect for such Holder until changed by the Holder
by written notice to the Trustee (but any such written notice must be received
by Trustee not later than the close of business on the day 15 days prior to the
next payment date to be effective for the payment to be made on such payment
date and no such change may be made with respect to payments to be made on any
Security of such series with respect to which notice of redemption has been
given by the Company pursuant to Article Three). Any Holder of any such
Security who shall not have delivered any such election to the Trustee in,
accordance with this paragraph (b) will be paid the amount due on the applicable
payment date in the relevant currency unit as provided in paragraph (a) of this
Section 2.11. Payment of principal of and premium, if any, shall be made on the
payment date therefor against surrender of such Security. Payment of principal
of, premium, if any, and interest, if any, shall be made at the Place of Payment
by mailing at such location a check, in the applicable currency or currency
unit, to the Holder entitled thereto at the address of such Holder appearing on
the Security Register.
(2) Payment of the principal of, premium, if any, and interest, if any, on
such Security may also, subject to applicable laws and regulations, be made at
such other place or places as may be designated by the Company by any
appropriate method.
(c) Payment of the principal of and premium, if any, and interest, if any,
on any Bearer Security shall be made, except as provided in Section 2.4 with
respect to temporary global Securities, unless otherwise specified pursuant to
Section 2.1 and/or Section 10.1(h), at such place or places outside the United
States as may be designated by the Company pursuant to any applicable laws or
regulations by any appropriate method in the currency or currencies or currency
unit or units in which the Security is payable (except as
29
provided in paragraph (e) below) on the payment date therefor against surrender
of the Bearer Security, in the case of payment of principal and premium, if any,
or the relevant Coupon, in the case of payment of interest, if any, to a Paying
Agent designated for such series pursuant to Section 4.2.
(d) Not later than 10 Business Days (with respect to any Place of Payment)
prior to each payment date, the Trustee (and if a calculation agent is appointed
with respect to any Securities bearing interest at a rate or rates determined by
reference to an interest rate formula, such calculation agent with respect to
such Securities) shall deliver to the Company a copy of its record of the
respective aggregate amounts of principal of, premium, if any, and interest, if
any, on the Securities to be made on such payment date, in the currency or
currency unit in which each of the Securities is payable, specifying the amounts
so payable in respect of Registered Securities and Bearer Securities and in
respect of the Registered Securities as to which the Holders of Securities
denominated in any currency unit shall have elected to be paid in another
currency or currency unit as provided in paragraph (b) above. If the election
referred to in paragraph (b) above has been provided for pursuant to Section 2.1
and if at least one Holder has made such election, then, not later than the
fifth Business Day (with respect to any Place of Payment) prior to the
applicable payment date the Company shall deliver to the Trustee an Exchange
Rate Officer's Certificate in respect of the Dollar or Foreign Currency or
currency unit payments to be made on such payment date. The Dollar or Foreign
Currency or currency unit amount receivable by Holders of Registered Securities
denominated in a currency unit who have elected payment in another currency or
currency unit as provided in paragraph (b) above shall be determined by the
Company on the basis of the applicable Official Currency Unit Exchange Rate set
forth in the applicable Exchange Rate Officer's Certificate.
(e) If a Foreign Currency in which any Security is denominated or payable
ceases to be recognized both by the government of the country which issued such
currency and for the settlement of transactions by public institutions of or
within the international banking community, or if ECU ceases to be used both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities, or if any other
currency unit in which a Security is denominated or payable ceases to be used
for the purposes for which it was established, in each case determined in good
faith by the Company, then with respect to each date for the payment of
principal of, premium, if any, and interest, if any, on the applicable security
denominated or payable in such Foreign Currency, ECU or such other currency unit
occurring after the last date on which such Foreign Currency, ECU or such other
currency unit was so recognized or used (the "Currency Conversion Date"), the
Dollar shall become the currency of payment for use on each such payment date
(but ECU or the Foreign Currency or the currency unit previously the currency of
payment shall, at the Company's election, resume being the currency of payment
on the first such payment date preceded by 15 Business Days during which the
circumstances which gave rise to the Dollar becoming such currency no longer
prevail, in each case as determined in good faith by the Company). The Dollar
amount to be paid by the Company to the Trustee and by the Trustee or any Paying
Agent to the Holder of such Security with respect to such payment date shall be
the Dollar Equivalent of the Foreign Currency or, in the case of a currency
unit, the Dollar Equivalent of the Currency Unit, as
30
determined by the Exchange Rate Agent (which shall be delivered in writing to
the Trustee not later than the fifth Business Day prior to the applicable
payment date) as of the Currency Conversion Date or, if later, the date most
recently preceding the payment date in question on which such determination is
possible of performance, but not more than 15 days before such payment date
(such Currency Conversion Date or date preceding a payment date as aforesaid
being called the "Valuation Date") in the manner provided in paragraph (g) or
(h) below.
(f) (i) If the Holder of a Registered Security denominated in a currency
unit elects payment in a specified Foreign Currency or currency unit as provided
for by paragraph (b) and such Foreign Currency ceases to be used both by the
government of the country which issued such currency and for the settlement of
transactions by public institutions of or within the international banking
community, in each case as determined in good faith by the Company, such Holder
shall (subject to paragraph (e) above) receive payment in the currency unit in
which the Security is denominated, and (ii) if ECU ceases to be used both within
the European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities and such Registered Security
is payable in such currency unit, or if any other such currency unit ceases to
be used for the purposes for which it was established and such Registered
Security is payable in such currency unit, in each case as determined in good
faith by the Company, such Holder shall receive payment in Dollars. Each payment
covered by an election pursuant to paragraph (b) above be governed by the
provisions of this paragraph (f) (but, subject to any contravening valid
election pursuant to paragraph (b) above, the specified Foreign Currency in case
(i) or ECU or other currency unit in case (ii) shall, at the Company's election,
resume being the currency or currency unit, as applicable, of payment with
respect to Holders who have so elected, but only with respect to payments on
payment dates preceded by 15 Business Days during which the circumstances which
gave rise to such currency unit in case (i) or the Dollar in case (ii) becoming
the currency unit or currency, as applicable, of payment, no longer prevails, in
each case as determined in good faith by the Company).
(g) "The Dollar Equivalent of the Foreign Currency" shall be determined by
the Exchange Rate Agent as of each Valuation Date and shall be obtained by
converting the specified Foreign Currency into Dollars at the Market Exchange
Rate on the Valuation Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined by
the Exchange Rate Agent as of each Valuation Date and shall be the sum obtained
by adding together the results obtained by converting the Specified Amount of
each Component Currency into Dollars at the Market Exchange Rate on the
Valuation Date for such Component Currency.
(i) For purposes of this Section 2.11 the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which, on the Currency
Conversion Date, was a component currency of the relevant currency unit,
including without limitation ECU.
31
An "Exchange Rate Agent" means a New York clearinghouse bank appointed by
the Company from time to time to determine exchange rates between Dollars and
other currencies or currency units. The Company may appoint different Exchange
Rate Agents for different currencies and currency units and may change an
Exchange Rate Agent at any time after 15 days' notice to the Trustee.
A "Specified Amount" of a Component Currency shall mean the number of units
or fractions thereof which such Component Currency represented in the relevant
currency unit, including without limitation ECU, on the Currency Conversion
Date. If after the Currency Conversion Date the official unit of any Component
Currency is altered by way of combination or subdivision, the Specified Amount
of such Component Currency shall be divided or multiplied in the same
proportion. If after the Currency Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single currency, and such
amount shall thereafter be a Specified Amount and such single currency shall
thereafter be a Component Currency. If after the Currency Conversation Date any
Component Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by specified amounts of such
two or more currencies, the sum of which, at the Market Exchange Rate of such
two or more currencies on the date of such replacement, shall be equal to the
Specified Amounts of such currencies shall thereafter be Component Currencies.
"Market Exchange Rate" shall mean for any currency the noon Dollar buying
rate for that currency for cable transfers quoted in New York City on the
Valuation Date as certified for customs purposes by the Federal Reserve Bank of
New York. If such rates are not available for any reason with respect to one or
more currencies for which an Exchange Rate is required. The Exchange Rate Agent
shall use such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks with its head
office in New York City or in the country of issue of the currency in question,
or such other quotations as the Exchange Rate Agent shall deem appropriate.
Unless otherwise specified by the Exchange Rate Agent if there is more than one
market for dealing in any currency by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such currency shall be that upon
which a nonresident issuer of securities designated in such currency would, as
determined in its sole discretion and without liability on the part of the
Exchange Rate Agent, purchase such currency in order to make payments in respect
of such securities.
All decisions and determinations of the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency
Unit and the Market Exchange Rate shall be in its sole discretion and shall, in
the absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company and all Holders of the Securities and Coupons
denominated or payable in the relevant currency or currency units. In the event
that a Foreign Currency ceases to be used both by the government of the country
which issued such currency and for the settlement of transactions by public
institutions of or within the international banking community, the Company,
after
32
learning thereof, will immediately give notice thereof to the Trustee (and the
Trustee will promptly thereafter give notice in the manner provided in Section
1.4 to the Holders) specifying the Currency Conversion Date. In the event the
ECU ceases to be used both within the European Monetary System and for the
settlement of transactions by public institutions of or within the European
Communities, or any other currency unit in which Securities or Coupons are
denominated or payable, ceases to be used for the purposes for which it was
established, the Company, after learning thereof, will immediately give notice
thereof to the Trustee (and the Trustee will promptly thereafter give notice in
the manner provided in Section 1.4 to the Holders) specifying the Currency
Conversion Date and the Specified Amount of each Component Currency on the
Currency Conversion Date. In the event of any subsequent change in any
Component Currency as set forth in the definition of Specified Amount above, the
Company, after learning thereof, will similarly give notice to the Trustee. Any
actions taken pursuant to the parentheticals at the end of the first sentence of
Section 2.11(e) and at the end of Section 2.11(f) shall be promptly set forth in
like notices from the Company to the Trustee and then from the Trustee to the
Holders (which notice may be mailed with payment to the Holders).
Subject to the provisions of Sections 7.1 and 7.2, the Trustee shall be
fully justified and protected in conclusively relying and acting upon
information received by it from the Company and the Exchange Rate Agent, and
shall not otherwise have any duty or obligation to determine such information
independently.
Section 2.12 Compliance with Certain Laws and Regulations. If any Bearer
--------------------------------------------
Securities are to be issued in any series of Securities, the Company will use
reasonable efforts to provide for arrangements and procedures designed pursuant
to then applicable laws and regulations, if any, to ensure that such Bearer
Securities are sold or resold, exchanged, transferred and paid only in
compliance with such laws and regulations and without adverse consequences to
the Company, the Holders and the Trustee.
Section 2.13 Security Forms Generally. The Securities of each series and
------------------------
the Coupons, if any, to be attached thereto shall be in substantially the forms
as shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions, and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the applicable laws and regulations and the rules of any
securities exchange or as may, consistently herewith, be determined by the
offices executing such Securities and Coupons, if any, as evidenced by their
executions of the Securities and Coupons, if any. If the forms of Securities of
any series is established by, or by action taken pursuant to a Board Resolution,
a copy of the Board Resolution together with an appropriate record of any action
taken pursuant thereto, which Board Resolution or record of such action shall
have amended thereto a true and correct copy of the forms of Security approved
by or pursuant to such Board Resolution, shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 2.3 for the
authentication and delivery of such Securities.
33
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders and may be produced in any
other manner, as all determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
Section 2.14 Form of Trustee's Certificate of Authentication. The
-----------------------------------------------
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Securities of the series designated therein issued under
the within mentioned Indenture.
full name of Trustee
as Trustee
By
Authorized Officer Signatory
Section 2.15 Securities in Global Form. If Securities of a series are
-------------------------
issuable in global form, as specified pursuant to Section 2.1, then,
notwithstanding clause (h) of Section 2.1 and the provisions of Section 2.2,
such Security shall represent such of the Outstanding Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities from time to time endorsed thereon
and that the aggregate amount of Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee in such
manner and upon written instructions given by such Person or Persons as shall be
specified in such Security or in the Company Order to be delivered to the
Trustee pursuant to Section 2.3 or Section 2.4. Subject to the provisions of
Section 2.3 and, if applicable, Section 2.4, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon written
instructions given by the Person or Persons specified in such Security or in the
applicable Company Order. If a Company Order pursuant to Section 2.3 or 2.4 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 14.6 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 2.3 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 14.6 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 2.3.
Notwithstanding the provisions of Sections 2.13 and 2.9, unless otherwise
specified pursuant to Section 2.1, payment of principal of and any premium and
any interest
34
on any Security in permanent global form shall be made to the Person or Persons
specified therein.
The holders of beneficial interests in any temporary or permanent global
Security shall have no rights under this Indenture with respect to any global
Security held on their behalf by a U.S. Depository or Common Depository, as the
case may be, and such U.S. Depository or Common Depository, as the case may be,
may be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee, or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by a U.S.
Depository or Common Depository, as the case may be, or impair, as between a
U.S. Depository or Common, as the case may be, and holders of beneficial
interests in any temporary or permanent global Security as the case may be, the
operation of customary practices governing the exercise of the rights of a
Holder of a Security of any series, including without limitation the granting of
proxies or other authorization of participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action which
a Holder is entitled to give or take under this Indenture.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a global Security or for supervising or reviewing any records
relating to such beneficial ownership interests.
Each U.S. Depository designated pursuant to Section 2.1 for a global
Security in registered form must, at the time of its designation and at all
times while it serves as U.S. Depository, be a clearing agency registered under
the Securities Exchange Act of 1934, as amended, and any other applicable
statute or regulation.
ARTICLE 3.
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 3.1 Applicability of Article. Securities (including any Coupons)
------------------------
of any series which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise specified
pursuant to Section 2.1 for Securities (including any Coupons) of any series) in
accordance with this Article.
The provisions of Sections 3.9 to 3.10 of this Article shall be applicable
if any sinking fund is to be provided for the retirement of Securities
(including any Coupons) of any series except as otherwise specified pursuant to
Section 2.1 for Securities (including any Coupons) of such series.
Section 3.2 Mandatory and Optional Sinking Fund Payments. The minimum
--------------------------------------------
amount of any sinking fund payment provided for by the terms of Securities
(including any Coupons) of any series is herein referred to as a "mandatory
sinking fund payment", and any
35
payment in excess of such minimum amount provided for by the terms of Securities
(including any Coupons) of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities (including
any Coupons) of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 3.9. Each sinking fund payment
shall be applied to the redemption of Securities (including any Coupons) of any
series as provided for by the terms of Securities (including any Coupons) of
such series.
Section 3.3 Election to Redeem: Notice to Trustee. The election of the
-------------------------------------
Company to redeem any Securities (including any Coupons) shall be evidenced by a
Board Resolution or by an action taken pursuant to a Board Resolution. In case
of any redemption at the election of the Company of less than all of the
Securities (including any Coupons) of any series, the Company shall, at least 45
days prior to the Redemption Date fixed by the Company (unless the Trustee shall
allow a lesser period of time) deliver to the Trustee an Officers' Certificate
(1) notifying the Trustee of such Redemption Date and of the principal amount of
Securities (including any Coupons) of such series to be redeemed and (2) stating
that no defaults in the payment of interest or Events of Default with respect to
the Securities (including any Coupons) of that series have occurred (which have
not been waived or cured). In the case of any redemption of Securities
(including any Coupons) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities (including any Coupons) or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 3.4 Selection by Trustee of Securities to be Redeemed. If less
-------------------------------------------------
than all the Securities (including any Coupons) of any series are to be
redeemed, the particular Securities (including any Coupons) to be redeemed shall
be selected by the Trustee, not more than 45 days prior to the Redemption Date
from the Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions equal to the
minimum authorized denomination for Securities (including any Coupons) of that
series, or any integral multiple thereof, of the principal amount of Securities
(including any Coupons) of such series, or of a denomination larger than the
minimum authorized denomination for Securities (including any Coupons) of that
Series.
The Trustee shall promptly notify the Company in writing of the Securities
(including any Coupons) selected for redemption and, in the case of any
Securities (including any Coupons) 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 (including any Coupons)
shall relate, in the case of any Security (including any Coupons) redeemed or to
be redeemed only in part, to the portion of the principal of such Security
(including any Coupons) which has been or is to be redeemed.
Securities shall be excluded from liability for selection for redemption if
they are identified by registration and certificate number in an Officers'
Certificate of the
36
Company delivered to the Trustee at least 45 days prior to the Redemption Date
(unless the Trustee shall allow a lesser period of time) 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 an
Affiliate of the Company.
Section 3.5 Notice of Redemption. Notice of redemption shall be given not
--------------------
less than 30 nor more than 60 days prior to the Redemption Date (unless the
Trustee shall allow a lesser period of time), to each Holder of Securities to be
redeemed, as provided in Section 1.4.
Each such notice of redemption shall specify the Redemption Date, the
Redemption Price, the Place or Places of Payment, that the Securities of such
series are being redeemed at the option of the Company pursuant to provisions
contained in the terms of the Securities of such series or in a supplemental
indenture establishing such series, if such be the case, together with a brief
statement of the facts permitting such redemption, that on the Redemption Date
the Redemption Price will become due and payable upon each Security redeemed,
that payment will be made upon presentation and surrender of the applicable
Securities, that all Coupons, if any, maturing subsequent to the Redemption Date
shall be void, that any interest accrued to the Redemption Date will be paid as
specified in said notice, and that on and after said Redemption Date any
interest thereon or on the portions thereof to be redeemed will cease to accrue.
If the Securities of such series are convertible into other securities of the
Company, the notice shall also state the conversion price, the last date on
which the Securities may be converted prior to the Redemption Date, and that the
Holders who wish to convert their Securities must comply with and satisfy all
the terms, conditions and requirements for conversion as set forth in the
Securities and/or this Indenture. If less than all the Securities of any series
are to be redeemed the notice of redemption shall specify the numbers of the
Securities of such series to be redeemed, and, if only Bearer Securities of any
series are to be redeemed, and if such Bearer Securities may be exchanged for
Registered Securities, the last date on which exchanges of Bearer Securities for
Registered Securities not subject to redemption may be made. In case any
Security of any 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 Redemption Date, upon surrender of such Security and
any Coupons appertaining thereto, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof and with appropriate
Coupons will be issued, or, in the case of Registered Securities providing
appropriate space for such notation, at the option of the Holders, the Trustee,
in lieu of delivering a new Security or Securities as aforesaid, may make a
notation on such Security of the payment of the redeemed portion thereof.
Notice of redemption of Securities and Coupons, if any, to be redeemed at
the election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
Section 3.6 Deposit of Redemption Price. On or before the opening of
---------------------------
business on any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in
37
trust as provided in Section 4.5) an amount of money in the relevant currency
(or a sufficient number of currency units, as the case may be) sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities and Coupons, if any, which
are to be redeemed on that date.
Section 3.7 Securities Payable on Redemption Date. Notice of redemption
-------------------------------------
having been given as aforesaid, the Securities to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest and the Coupons for such interest appertaining to any
Bearer Securities, so to be redeemed, except to the extent provided below, shall
be void. Upon surrender of any such Security for redemption in accordance with
said notice, together with all Coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that installments of interest on Bearer Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 4.2) and, unless otherwise specified pursuant to Section
2.1, only upon presentation and surrender of Coupons for such interest, and
provided, further, that, unless otherwise specified pursuant to Section 2.1,
installments of interest on Registered Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Regular and Special Record Dates according to their
terms and the provisions of Section 2.9.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant Coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing Coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
interest represented by Coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 4.2)
and, unless otherwise specified pursuant to Section 2.1, only upon presentation
and surrender of those Coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in by the
Security.
Section 3.8 Securities Redeemed in Part. Any Security (including any
---------------------------
Coupons appertaining thereto) which is to be redeemed only in part may be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee
38
duly executed by, the Holder thereof or his attorney duly authorized in writing)
and the Company shall execute and the Trustee shall authenticate and make
available for delivery to the Holder of such Security (including any Coupons
appertaining thereto) without service charge to the Holder thereof, a new
Security or Securities (including any Coupons Pertaining thereto) of the same
series and Stated Maturity, of any authorized denomination as requested by such
Holder in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered. Any Bearer Security
that is redeemed only in part shall be surrendered at an office or agency of the
Company located outside the United States, except as otherwise provided in
Section 4.2, and the Company shall execute, and the Trustee shall authenticate
and make available for delivery to the Holder of such Security outside the
United States without service charge, a new Bearer Security or Bearer Securities
of the same series (or a new Registered Security or Registered Securities of the
same series, if the Securities of such series are issuable as Registered
Securities), of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered; except in either case that if a
global Security is so surrendered, the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the U.S. Depository or
Common Depository, as the case may be, for such global Security, without service
charge, a global Security in a denomination equal to and in exchange for the
unredeemed portion of the principal of the global Security so surrendered.
Section 3.9 Satisfaction of Sinking Fund Payments with Securities. The
-----------------------------------------------------
Company (1) may deliver Outstanding Securities (including any Coupons) of a
series (other than any previously called for redemption) and (2) may apply as a
credit Securities (including any Coupons) of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
(including any Coupons) or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities (including any Coupons),
in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities (including any Coupons) of such series required to be
made pursuant to the terms of such Securities (including any Coupons) provided
for by the terms of such series; provided that such Securities (including any
Coupons) have not been previously so credited. Such Securities (including any
Coupons) shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities (including any Coupons) for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
Section 3.10 Redemption of Securities for Sinking Fund. Not less than 45
-----------------------------------------
days prior to each sinking fund payment date (unless the Trustee shall allow a
lesser period of time) for any series of Securities (including any Coupons), the
Company will (1) deliver to the Trustee an Officers' Certificate (A) stating
that no defaults in the payment of interest or Events of Default with respect to
Securities (including any Coupons) of that series have occurred (which have not
been waived or cured), (B) specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
(including any Coupons) of that series pursuant to Section 3.9 and (C) if
applicable, stating whether or not the Company
39
intends to exercise its right to make an optional sinking fund payment with
respect to such series on the next ensuing sinking fund payment date and, if so,
specifying the amount of such optional sinking fund payment and (2) deliver to
the Trustee any Securities (including any Coupons) to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall select
the Securities (including any coupons) to be redeemed upon such sinking fund
payment date in the manner specified in Section 3.4 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 3.5.
Section 3.11 Redemption of Securities During Event of Default. The
------------------------------------------------
Trustee shall not redeem or cause to be redeemed any Security (including any
Coupons) of a series with sinking fund moneys or otherwise as provided in this
Article (unless all outstanding Securities (including any Coupons) of such
series are to be redeemed) or mail any notice of any such redemption of
Securities (including any Coupons) of a series during the continuance of a
default in payment of interest on such Securities (including any Coupons) or of
any Event of Default with respect to such series known two Business Days prior
to such payment or mailing to a Responsible Officer of the Trustee except that,
where the mailing of notice of redemption of any Securities (including any
Coupons) shall theretofore have been made, the Trustee shall redeem or cause to
be redeemed such Securities (including any Coupons), provided that it shall have
received from the Company a sum sufficient for such redemption. Except as
aforesaid, any moneys theretofore or thereafter received by the Trustee in
respect of such series of Securities at the time when any such default or Event
of Default shall have occurred shall, during the continuance of such default or
Event of Default, be deemed to have been collected under Article Seven and held
for the payment of all the Securities (including any Coupons) of that series.
In case such Event of Default shall have been waived as provided in Section 6.1
or the default cured on or before the sixtieth day preceding a sinking fund
payment date or a Redemption Date, as the case may be, such moneys held
thereafter shall be applied in accordance with the provisions of this Article to
the redemption of such Securities Concluding any Coupons).
ARTICLE 4.
PARTICULAR COVENANTS OF THE COMPANY
Section 4.1 Payment of Principal, Premium and Interest. The Company
------------------------------------------
covenants and agrees for the benefit of each series of Securities and Coupons,
if any, that it will duly and punctually pay or cause to be paid the principal
of (and premium, if any) and interest, if any, on the Securities and Coupons, if
any, of that series in accordance with the terms of the Securities and Coupons,
if any, of such series and this Indenture.
Section 4.2 Maintenance of Office or Agency. If Securities of a series
-------------------------------
are issuable only as Registered Securities, the Company will maintain in each
Place of Payment for such series an office, which may be an office of the
Trustee, or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be
40
served. If the Securities of a series are convertible into any other security
of the Company, the Company will maintain in each Place of Payment for such
series an office, which may be an office of the Trustee, or agency where
Securities of that series may be presented or surrendered for conversion. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain (A) in the Borough of Manhattan, The City of New York, an office, which
may be an office of the Trustee, or agency where any Registered Securities of
that series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related Coupons may be presented or surrendered for payment in the circumstances
described in the last proviso of this paragraph (and not otherwise), (B) subject
to any laws or regulations applicable thereto, in a Place of Payment for that
series which is located outside the United States, an office, which may be an
office of the Trustee, or agency where Securities of that series and related
Coupons may be presented and surrendered for payment (including payment of any
additional amounts payable on Securities of that series pursuant to Section
4.7); provided, however, that if the Securities of that series are listed on The
Stock Exchange of the United Kingdom and the Republic of Ireland, the Luxembourg
Stock Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Company will maintain a Paying Agent
reasonably acceptable to the Trustee for the Securities of that series in
London, Luxembourg or any other required city located outside the United States,
as the case may be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States, an office,
which may be an office of the Trustee, or agency where any Registered Securities
of that series may be surrendered for registration of transfer, where Securities
of that series may be surrendered for exchange and where notices and demands to
or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the
Trustee and the Holders of the location, and any change in the location, of any
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency in respect of any series of Securities or shall
fail to furnish the Trustee with the address thereof, such presentations and
surrenders of Securities of that series may be made and notices and demands may
be made or served at the Corporate Trust Office of the Trustee, except that
Bearer Securities of that series and the related Coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Bearer Securities of that series pursuant to Section 4.7) at the London office
of the Trustee (or an agent with a London office appointed by the Trustee and
acceptable to the Company), and the Company hereby appoints the same as its
agent to receive such respective presentations, surrenders notices and demands.
No payment of principal, premium or interest on Bearer Securities shall be made
at any office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to an account maintained in
the United States; provided, however, that, if the Securities of a series are
denominated and payable in Dollars, payment of principal of and any premium and
interest on any Bearer Security (including any additional amounts payable on
Securities of such series pursuant to Section 4.7) shall be made at the office
of the Company's Paying Agent in the Borough of Manhattan, The City of New York,
if (but only if) payment in Dollars of the full
41
amount of such principal, premium, interest or additional amounts, as the case
may be, at all offices or agencies outside the United States maintained
for the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices,
which may be offices of the Trustee, or agencies where the Securities of one or
more series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in accordance with the requirements
set forth above for Securities of any series for such purposes. The Company
will give prompt written notice to the Trustee and the Holders of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 4.3 Prohibition of Extension of Claims for Interest. In order to
-----------------------------------------------
prevent any accumulation of claims for interest thereon after maturity thereof,
the Company will not directly or indirectly extend or consent to the extension
of the time for the payment of any claim for interest on any of the Securities
and Coupons, if any, of a series and will not directly or indirectly be a party
to or approve any such arrangement by the purchase or funding of said claims for
interest or in any other manner. No claim for interest, the time of payment of
which shall have been so extended or which shall have been so purchased or
funded, shall be entitled in case of an Event of Default hereunder to the
benefits of this Indenture except after the prior payment in full of the
principal of (and premium, if any) all the Securities and Coupons, if any, of a
series and claims for interest not so extended, purchased or funded; provided,
however, that this Section 4.3 shall not apply in any case where an extension
shall be made pursuant to a plan proposed by the Company to the Holders of all
the Securities and Coupons, if any, of a series, then outstanding. Every
provision of this Indenture specifying the Holders of the Securities and
Coupons, if any, of a series who are entitled to the benefits of this Indenture
or relating to the distribution of the avails of any enforcement hereof shall be
subject to the provisions of this Section 4.3.
Section 4.4 Appointment to Fill Vacancy of Trustee. The Company, whenever
--------------------------------------
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in
the manner provided in Section 7.10, a Trustee, so that there shall at all times
be a Trustee hereunder.
Section 4.5 Paying Agents: Money for Securities Payments Held in Trust.
----------------------------------------------------------
(a) Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, at or prior to the opening of business on each
due date of the principal of (and premium, if any) or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act; provided,
however, the
42
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed upon with the Company.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto, including the Company pursuant to the
proviso set forth above in this subsection (a), until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of that series) in making of any payment of
principal (and premium, if any) or interest on the Securities of that series;
and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
(b) The Company may act as its own Paying Agent. If the Company shall act
as its own Paying Agent with respect to any series of Securities, it will, on or
before each due date of the principal of (and premium, if any) or interest on
any of the Securities of that series, set aside, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay such
principal (and premium, if any) or interest so becoming due. The Company will
promptly notify the Trustee of such action or of any failure by the Company to
take such action or the failure by any other obligor on the Securities to make
any payment of the principal of (and premium, if any) or interest on any of the
Securities of that series when the same shall be due and payable.
(c) The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
(d) Anything in this Section 4.5 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.5 is subject to
the provisions of Section 12.2, Section 12.3 and Section 12.5.
Section 4.6 Compliance Certificate. The Company will deliver to the
----------------------
Trustee for each series of Securities, within 120 days after the end of each
fiscal year ending after the date hereof so long as any Security is outstanding
hereunder, a certificate signed by the
43
principal executive officer, principal financial officer or principal accounting
officer of the Company stating, as to each signer thereof, that:
(a) a review has been made under his or her supervision of the activities
of the Company during such year and of the performance under this Indenture; and
(b) to the best of his or her knowledge, based on such review, the Company
has complied with all conditions and covenants under this Indenture throughout
such year. For purposes of this Section, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
Section 4.7 Additional Amounts. If the Securities of a series provide for
------------------
the payment of additional amounts, the Company will pay to the Holder of any
Security of such series or any Coupon appertaining thereto who are United States
Aliens additional amounts as provided therein. Whenever in this Indenture there
is mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or payment of any
related Coupon or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in this Section to the extent that,
in such context, additional amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any provisions hereof shall not
be construed as excluding additional amounts in those provisions hereof where
such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the Officers' Certificate to be delivered pursuant
to Section 4.6, the Company will furnish the Trustee and the Company's Paying
Agent or Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
Coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or Coupons and the Company shall
pay to the Trustee or such Paying Agent the additional amounts required by this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
44
ARTICLE 5.
SECURITYHOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 5.1 Company To Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, within one Business Day of each record date in each
year, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of each series of Registered Securities, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content, such list to be, dated as of a date not more than 14 days
prior to the time such list is furnished, and
(c) such information concerning the Holders of Bearer Securities
which is known to the Company; provided, however, that the Company shall not
have an obligation to investigate any matter relating to any Holder of a Bearer
Security or a Coupon; notwithstanding the foregoing subsections (a) and (b), so
long as the Trustee is the Security Registrar with respect to a particular
series of Securities, no such list shall be required to be furnished in respect
of such series.
Section 5.2 Preservation of Information: Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each series of Securities (1) contained in the most recent list furnished to it
as provided in Section 5.1, and (2) received by it in the Paying Agent and
Security Registrar (if so acting) hereunder. The Trustee shall provide
information to the Company upon receipt of a Company Request for the same by the
Company. The Trustee may destroy any list furnished to it as provided in
Section 5.1 upon receipt of a new list for Securities so furnished.
(b) In case three or more Holders of any series of Securities
(hereinafter referred to as "applicants") apply in writing to the Trustee and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security of such series for a period of at least six months preceding the date
of such application and such application states that the applicants desire to
communicate with other Holders of Securities of such series with respect to
their rights under this Indenture or under such Securities and is accompanied by
a copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five business days after the receipt
of such application, at its election, either
45
(1) afford such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a) of
this Section 5.2, or
(2) inform such applicants as to the approximate number of Holders of
Securities of such series whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 5.2 and as to the approximate cost of mailing to
such Securityholders the form of proxy or other communication, if any, specified
in such application.
If the Trustee shall not elect to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such series whose name and address
appear in the information preserved at the time by the Trustee in accordance
with the provisions of subsection (a) of this Section 5.2, a copy of the form of
proxy or other communication which is specified in such request with reasonable
promptness after a tender to the Trustee by such Applicants of the material to
be mailed and of payment, or provision for the payment, of the reasonable
expenses of mailing, unless, within five days after such tender, the Trustee
shall mail to such applicants and file with the Commission, together with a copy
of the material to be mailed, a written statement to the effect that in the
opinion of the Trustee such mailing would be contrary to the best interest of
the Holders of Securities of such series or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for a
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every Holder of the Securities or Coupons, by receiving
and holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders in accordance with the provisions of
subsection (b) of this Section 5.2, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under said subsection
(b).
Section 5.3 Reports by Company.
------------------
(a) The Company covenants and agrees to file with the Trustee, with
reasonable promptness, after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents, and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
46
Company is not required to file information, documents or reports pursuant to
either of such sections, then to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Securities Exchange
Act of 1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents, and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit to the respective
holders of Registered Securities, within thirty days after the filing thereof
with the Trustee, in the manner and to the extent provided in subsection (c) of
Section 5.4, such summaries of any information, documents and reports required
to be filed by the Company pursuant to subsections (a) and (b) of this Section
5.3 as may be required by rules and regulations prescribed from time to time by
the Commission.
Section 5.4 Reports by Trustee.
------------------
(a) On or before 60 days after May 15 in each year thereafter, so
long as any Securities are Outstanding hereunder, the Trustee shall transmit to
Securityholders of each series as hereinafter provided in this Section 5.4, a
brief report with respect to any of the following events which may have occurred
within the previous twelve (12) months (but if no such event has occurred within
such period, no report need be transmitted):
(1) any change to its eligibility under Section 7.9 and its
qualifications under Section 7.8;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of Section 7.8(c) of this Indenture;
(3) the character and amount of any advances to or on behalf of the
Company (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) which remain unpaid on the
date of such report, and for the reimbursement of which it claims or may claim a
lien or charge prior to that of the Securities on any property or funds held or
collected by it as Trustee, except that the Trustee shall not be required (but
may elect) to report such advances if such advances so remaining unpaid
aggregate not more than one-half of 1% of the principal amount of the Securities
Outstanding on the date of such report;
(4) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the Securities) to
the Trustee in its individual
47
capacity, on the date of such report, with a brief description of any property
held as collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in paragraphs (2), (3),
(4), or (6) of subsection (b) of Section 7.13;
(5) any change to the property and funds held hereunder, if any,
physically in the possession of the Trustee, as such, on the date of such
report;
(6) any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of a
default, notice of which has been or is to be withheld by it in accordance with
the provisions of Section 6.7; and
(7) any additional issue of Securities which the Trustee has not
previously reported.
(b) The Trustee shall transmit to the Securityholders, as hereinafter
provided, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to the provisions of subsection (a) of this Section
5.4 (or if no such report has yet been so transmitted, since the date of
execution of this Indenture) for the reimbursement of which it claims or may
claim a lien or charge prior to that of the Securities on property or funds held
or collected by it as Trustee and which it has not previously reported pursuant
to this subsection, except that the Trustee shall not be required (but may
elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of Securities outstanding at such
time, such report to be transmitted within 90 days after such time.
(c) Reports to the Holders of Securities pursuant to this Section 5.4
shall be transmitted in the manner as provided in Section 1.4 by mail to all
Holders of Securities.
(d) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange upon which the Securities are listed and with the Commission and shall
be furnished to the Company. The Company agrees to notify the Trustee when and
as the Securities become listed on any stock exchange.
ARTICLE 6.
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS IN EVENT OF DEFAULT
Section 6.1 Event of Default; Acceleration, Etc. "Event of Default,"
------------------------------------
wherever used herein with respect to Securities of any series, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless it is either
inapplicable to a particular series or it is specifically deleted or modified in
or
48
pursuant to the supplemental indenture or Board Resolution establishing such
series of Securities or in the form of Security for such series:
(a) default in the payment of any installment of interest upon any of
the Securities of that series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days after the date on which
written notice specifying such default and requiring the Company to remedy the
same, shall have been given to the Company by the Trustee by registered mail, or
to the Company and the Trustee by any one or more Holders of the Securities of
that series at the time Outstanding; or
(b) default in the payment of the principal of (or premium, if any,
on) any of the Securities of that series as and when the same shall become due
and payable either at Maturity (except Maturity arising from a call for
redemption through the operation of a sinking fund), by declaration or
otherwise; or
(c) default in the deposit of any sinking fund payment when and as
due by the terms of a Security of that series, and continuance of such default
for a period of 30 days after the date on which written notice specifying such
default and requiring the Company to remedy the same, shall have been given to
the Company by the Trustee by registered or certified mail, return receipt
requested, or to the Company and the Trustee by any one or more Holders of the
Securities of that series at the time outstanding; or
(d) failure on the part of the Company duly to observe or perform any
other covenants or agreements (other than as set forth in Section 6.1(a), (b) or
(c) above) on the part of the Company in the Securities of that series or in
this Indenture contained (other than a covenant or warranty which has expressly
been included in this Indenture solely for the benefit of any series of
Securities other than that series) and such failure shall continue unremedied
for a period of 90 days after the date on which written notice of such failure,
requiring the Company to remedy the same, shall have been given to the Company
by the Trustee by registered or certified mail, return receipt requested, or to
the Company and the Trustee by the Holders of at least 25% in principal amount
of the Securities of that series at the time Outstanding; or
(e) a decree or order by a court having jurisdiction in the premises
for relief in respect of the Company under Title 11 of the United States Code,
as now constituted or hereafter in effect, or any other applicable Federal or
State bankruptcy, insolvency or similar law, shall have been entered, either
adjudging the Company a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization of the Company, and such decree or order shall
have continued undischarged and unstayed for a period of 90 days; or a decree or
order of a court having jurisdiction in the premises for the appointment of a
receiver or liquidator or trustee or custodian or assignee in bankruptcy or
insolvency of the Company, or of its property, or for the winding-up or
liquidation of its affairs, shall have been entered, and such decree or order
shall have remained in force undischarged and unstayed for a period of 90 days;
or
49
(f) the Company shall institute proceedings for relief to be
adjudicated a voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent seeking
reorganization under Title 11 of the United States Code, as now constituted or
hereafter in effect, or any other applicable Federal or State bankruptcy,
insolvency or similar law, or shall consent to the institution of proceedings
thereunder or to the filing of any such petition, or shall consent to the
appointment of a receiver or liquidator or trustee or custodian or assignee in
bankruptcy or insolvency of it or of its property, or shall make an assignment
for the benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or shall fail generally to pay its debts as
such debts become due, or corporate action shall be taken by the Company in
furtherance of any of the aforesaid purposes; or
(g) any other Event of Default with respect to the Securities of
that Series.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, and in each and every such case,
unless the principal of all the Securities of that series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of that series then Outstanding
hereunder, by notice in writing (except with respect to an Event of Default
specified in subsections (e) and (f), for which such notice shall not be
required) to the Company and to the Trustee, may declare the principal amount
(or, if the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of that
series) of all the Securities of that series to be due and payable immediately,
and upon any such declaration the same shall become and shall be immediately due
and payable, anything in this Indenture or in the Securities of that series
contained to the contrary notwithstanding. This provision, however, is subject
to the conditions that if, at any time after such principal amount of the
Securities of any series shall have been so declared due and payable, and before
any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of that series (with interest, to the extent
that payment of such interest is enforceable under applicable law, upon overdue
installments of interest, at the rate borne by the Securities of that series to
the date of such payment or deposit) and such amount as shall be sufficient to
cover all sums due the Trustee and each predecessor Trustee under Section 7.6,
and any and all defaults under the Indenture, other than the nonpayment of the
principal amount of the Securities of that series which shall have become due by
acceleration, shall have been remedied, then and in every such case the Holders
of a majority in aggregate principal amount of the Securities of that series
then Outstanding, by written notice to the Company and to the Trustee, may waive
all defaults 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.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case, subject
to any determination in such proceeding, the
50
Company, the Trustee and the Holders of the Securities of that series shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company, and the Trustee shall continue as
though no such proceedings had been taken.
Subject to the provisions of Section 7.1, the Trustee shall not be
deemed to have knowledge of any default described in subsections (d), (e), (f),
or (g) of this Section 6.1 unless (i) the Trustee shall have actual knowledge of
such default or (ii) the Trustee shall have received written notice thereof from
the Company or any Holder.
Section 6.2 Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. The Company covenants that (1) in case it shall default in the
-------
payment of any installment of interest on any Security, or Coupon, as and when
the same shall become due and payable, and such default shall have continued for
a period of thirty days (unless a different period is provided for with respect
to such Security), or (2) in case it shall default in the payment of the
principal of (or premium, if any, on) any of the Securities when the same shall
have become payable, whether upon Maturity of such Securities or upon
declaration or otherwise, then, upon demand of the Trustee, the Company will pay
to the Trustee, for the benefit of the holders of such Securities and Coupons,
if any, the whole amount that then shall have become due and payable on all such
Securities and Coupons, if any, for principal (and premium, if any), or
interest, or both, as the case may be, with interest upon the overdue principal
(and premium, if any) and (to the extent that payment of such interest is
enforceable under applicable law) upon overdue installments of interest at the
rate borne by such Securities and Coupons, if any, and, in addition thereto,
such further amount as shall be sufficient to cover all sums due the Trustee and
each predecessor Trustee under Section 7.6.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce such
judgment or final decree against the Company or other obligor upon such
Securities and Coupons, if any, and collect in the manner provided by law out of
the property of the Company or other obligor upon such Securities and Coupons,
if any, wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings in bankruptcy or for the
reorganization of the Company or any other obligor upon the Securities and
Coupons, if any, of any series under Title 11 of the United States Code, as now
constituted or hereafter in effect, or any other applicable bankruptcy,
insolvency or other similar law relative to the Company or to such other
obligor, its creditors or its property, or in case a receiver or trustee shall
have been appointed for its property, or in case of any other judicial
proceedings relative to the Company or other obligor upon the Securities and
Coupons, if any, of such series, its creditors or its property, the Trustee,
irrespective of whether the principal of the Securities of such series shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 6.2, shall be entitled and empowered, by intervention
in such
51
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and Coupons, if any, of such series, and to file such
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for sums due the Trustee and each
predecessor Trustee under Section 7.6) and of the Securityholders allowed in any
judicial proceedings relative to any obligor upon the Securities and Coupons, if
any, of such series, its creditors or its property and to collect and receive
any moneys or other property payable or deliverable on any such claims, and to
distribute all amounts received with respect to the claims of the
Securityholders and of the Trustee on their behalf; and any receiver,
liquidator, trustee, custodian or assignee under any of the provisions of Title
11 of the United States Code, as now constituted or hereafter in effect, is
hereby authorized by each of the Securityholders to make payments to the
Trustee, and, in the event that the Trustee shall consent to the making of
payments directly to the Securityholders, to pay to the Trustee such amount as
shall be sufficient to cover all sums due the Trustee and each predecessor
Trustee under Section 7.6.
All rights of action and of asserting claims under this Indenture or
under any of the Securities and Coupons, if any, of any series may be enforced
by the Trustee without the possession of any of the Securities and Coupons, if
any, of that series or the production thereof at any trial or other proceedings
relative thereto, and any such action or proceedings instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for all amounts due the Trustee and
each predecessor Trustee under Section 7.6, be for the ratable benefit of the
Holders of the Securities and Coupons, if any, of such series.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to, or accept or adopt on behalf of any Securityholder, any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Securityholder, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
Section 6.3 Application of Money Collected. Any moneys collected by
------------------------------
the Trustee pursuant to Section 6.2 shall be applied in the order following, at
the date or dates fixed by the Trustee, and in case of the distribution of such
moneys on account of principal (or premium, if any) or interest upon
presentation of the Securities, and stamping or notation thereon of the payment,
if only partially paid, and upon surrender thereof if fully paid:
52
FIRST: To the payment of out-of-pocket costs and expenses of
collection, and reasonable compensation and all other amounts due to the Trustee
and each predecessor Trustee under Section 7.6;
SECOND: In case the principal (or premium, if any) of such Securities
shall not have become due, to the payment of interest on such Securities and
Coupons, if any, 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 rate borne by such
Securities and Coupons, if any, such payments to be made ratably to the Persons
entitled thereto, without discrimination or preference;
THIRD: In case the principal of (and premium, if any, on) such
Securities shall have become due, by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon such Securities and Coupons, if any,
for principal (and premium, if any) and interest, with interest on the overdue
principal (and premium, if any) and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest at the rate
borne by such Securities and Coupons, if any; and in case such money shall be
insufficient to pay in full the whole amount so due and unpaid upon such
Securities, then to the payment of such principal and interest, without
preference or priority of principal over interest, or of interest over
principal, or of any installment of interest over any other installment of
interest, or of any Security over any other Security, ratably to the aggregate
of such principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder and accrued interest
remaining on any money collected by the Trustee pursuant to Section 6.2, if any,
to the Company or its respective successors or assigns, or to whomsoever may be
lawfully entitled to receive the same, or as a court of competent jurisdiction
may direct.
Section 6.4 Limitation on Suits: Unconditional Rights of Holders. No
----------------------------------------------------
Holder of any Security of any series shall have any right by virtue or by
availing of any provision of this Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise, upon or under or
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless such Holder previously shall have
given to the Trustee written notice of default and of the continuance thereof,
as hereinbefore provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Securities of that series then Outstanding
shall have made written request upon the Trustee to institute such action or
proceedings in its own name as trustee hereunder and shall have offered to the
Trustee such reasonable security or indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
security or indemnity, shall have failed to institute any such action or
proceedings and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 6.6; it being understood and
intended and being expressly covenanted by the Holder of every Security of any
series with every other Holder and the Trustee, that no one or more Holders of
Securities of that series shall have any right in any manner whatever by virtue
or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the Holders of any
53
other of such Securities, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of such series. For the protection
and enforcement of the provisions of this Section 6.4, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or any Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any),
interest (subject to Section 2.9) on such Security, or Coupon on the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
Notwithstanding any other provision of this Indenture, the right of a
Holder of any Security which is convertible into any other security of the
Company to convert the Security, or to bring suit for the enforcement of the
right to convert the Security, shall not be impaired or affected without the
consent of the Holder.
Section 6.5 Remedies Cumulative, Restoration of Rights and Remedies.
-------------------------------------------------------
Except as provided by Section 2.6, all powers and remedies given by this Article
6 to the Trustee or to the Securityholders shall, to the extent permitted by
law, be deemed cumulative and not exclusive of any thereof or of any other
powers and remedies available to the Trustee or the Securityholders, by judicial
proceedings or otherwise, to enforce the performance and observance of the
covenants and agreements contained in this Indenture, and no delay or omission
of the Trustee or of any Holder of any of the Securities of any series to
exercise any right or power accruing upon any default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 6.4, every power and remedy given by this Article 6 or by
law to the Trustee or to the Securityholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may
54
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Section 6.6 Control by Holders: Waiver of Past Default. The Holders
------------------------------------------
of a majority in aggregate principal amount of the Securities of any series at
the time Outstanding shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee affecting the Securities
of such series; provided, however, that, subject to the provisions of Section
7.1 hereof, the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the action
so directed may not lawfully be taken, or if the Trustee in good faith shall, by
a Responsible Officer or officers, determine that the action so directed would
be unduly prejudicial to the Holders of the Securities of such series not taking
part in such direction (it being understood that (subject to Section 7.1) the
Trustee shall have no duty to ascertain whether or not such action is unduly
prejudicial to such Holders) or would involve the Trustee in personal liability.
Nothing in this Indenture shall impair the right of the Trustee to take any
other action deemed reasonably proper by the Trustee which is not inconsistent
with such direction. Prior to the declaration of the maturity of the Securities
of such series as provided in Section 6.1 hereof, the Holders of a majority in
aggregate principal amount of the Securities of such series at the time
Outstanding may on behalf of the Holders of all of the Securities of such series
waive any past default hereunder and its consequences, except a default in the
payment of the principal of (or premium, if any) or interest on any of the
Securities of such series or in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of the Holder of each Security
affected. In the case of any such waiver, the Company, the Trustee and the
Holders of the Securities of that series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
Section 6.7 Notice of Defaults. Within 90 days after the occurrence
------------------
of any default hereunder with respect to the Securities of any series, the
Trustee shall transmit notice as provided in Section 5.4(c) of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest on any Security of such
series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Securities of such series; provided, further, that in the case of any
default of the character specified in Section 6.1(d) with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence of an Event of Default. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
Section 6.8 Undertaking for Costs. All parties to this Indenture
---------------------
agree, and each Holder of any Security of any series by his acceptance thereof
shall be deemed to have
55
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 6.8 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Securityholder
or group of Securityholders holding in the aggregate more than 10% in principal
amount of the Securities of any series outstanding or to any suit instituted by
any Securityholder for the enforcement of the payment of the principal of (or
premium, if any), or interest on any Security of such series on or after the due
date expressed in such Security (or in the case of redemption, on the Redemption
Date).
Section 6.9 Special Record Date for Consents. The Company may set a
--------------------------------
record date for purposes of determining the identity of Securityholders entitled
to vote or consent to any action by vote or consent authorized or permitted by
Section 6.6 of this Indenture. Such record date shall be the later of thirty
(30) days prior to the first solicitation of such consent or the date of the
most recent list of holders furnished to the Trustee pursuant to Section 5.1 of
this Indenture prior to such solicitation.
ARTICLE 7.
CONCERNING THE TRUSTEE
Section 7.1 Certain Duties and Responsibilities. The Trustee, prior
-----------------------------------
to the occurrence of an Event of Default with respect to Securities of any
series and after the curing or waiving of all Events of Default with respect to
Securities of any series which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture with
respect to such series. In case an Event of Default with respect to Securities
of any series has occurred (which has not been cured or waived), the Trustee
shall exercise such of the rights and powers vested in it by this Indenture with
respect to such series, 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.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to
Securities of any series and after the curing or waiving of all Events of
Default with respect to Securities of any series which may have occurred:
(1) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and obligations as
are specifically set forth in this
56
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee by the Company and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in aggregate principal
amount of the Securities of any series at the time Outstanding (determined as
provided in Section 8.4) relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture; and
(d) none of the provisions of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any personal
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if there shall be reasonable grounds
for believing that repayment of such funds or adequate security or indemnity
against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
7.1.
Section 7.2 Certain Rights of Trustee. Subject to the provisions of
-------------------------
Section 7.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, and order, bond, debenture, note or
other paper or document believed by it to be genuine to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate signed in the
name of the Company (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors of the
Company may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
57
(c) the Trustee may consult with counsel selected by it and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such written
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, note or other
paper or document, unless requested in writing so to do by the holders of a
majority in aggregate principal amount of the Securities then outstanding;
provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security conferred upon it by the terms of this Indenture,
the Trustee may require reasonable security or indemnity against such costs,
expenses or liabilities as a condition to such proceeding; the reasonable
expense for such investigation shall be paid by the Company, or if paid by the
Trustee, shall be repaid by the Company upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 7.3 Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of any of the Securities or of the proceeds thereof.
Section 7.4 May Hold Securities. The Trustee, any Paying Agent, any
-------------------
Security Registrar, or any agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
or warrants to purchase Securities and, subject to Sections 7.8 and 7.13, may
otherwise deal with, and collect obligations owed to it by, the Company with the
same rights it would have if it were not Trustee, Paying Agent, Security
Registrar or such agent.
58
Section 7.5 Money Held in Trust. Subject to the provisions of
-------------------
Section 12.5 hereof, all moneys received by the Trustee or any Paying Agent
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. So long as no Event of Default
shall have occurred and be continuing, all interest allowed on any such moneys
pursuant to Section 4.5(a) shall be paid to the Company from time to time.
Section 7.6 Compensation and Reimbursement. The Company covenants
------------------------------
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as shall be agreed upon in writing (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and, except as otherwise expressly provided
herein, the Company will pay or reimburse the Trustee upon its request for all
costs and expenses of collection and all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and agents) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify each of the Trustee and any predecessor
Trustee for, and to hold each of them harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part of the Trustee or
such predecessor Trustee, as the case may be, arising out of or in connection
with the acceptance or administration of this trust and its duties hereunder,
including the reasonable cost and expense of defending itself against any claim
of liability in connection with the exercise or performance of its powers or
duties hereunder. The obligations of the Company under this Section 7.6 to
compensate and indemnify the Trustee and any predecessor Trustee and to pay or
reimburse the Trustee for costs of collection and expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture. Such additional indebtedness
shall be secured by a senior claim to which the Securities are hereby made
subordinate 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.
Section 7.7 Right to Rely on Officers' Certificate. Subject to the
--------------------------------------
provisions of Section 7.1, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate of the Company delivered to the Trustee and such Certificate, in the
absence of bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the provisions of
this Indenture upon the faith thereof.
Section 7.8 Disqualification: Conflicting Interests.
----------------------------------------
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section 7.8, it shall, within 90 days after ascertaining that it
has such conflicting interest, and if the Event of Default (exclusive of any
period of grace or requirement of notice) to
59
which such conflicting interest relates has not been cured or duly waived or
otherwise eliminated before the end of each 90-day period, either eliminate such
conflicting interest or, except as otherwise provided below in this Section 7.8,
resign in the manner and with the effect specified in Section 7.10, such
resignation to become effective upon the appointment of a successor trustee and
such successor's acceptance of such appointment, and the Company shall take
prompt steps to have a successor appointed in the manner provided in Section
7.10.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section 7.8, with respect to Securities of
any series, the Trustee shall, within 10 days after the expiration of such 90-
day period, transmit notice of such failure to the Securityholders of such
series in the manner and to the extent provided in subsection (c) of Section
5.4.
(c) For the purposes of this Section 7.8, each series issued under
this Indenture will be considered to have been issued under a separate indenture
and the Trustee shall be deemed to have a conflicting interest with respect to
any series issued under this Indenture if there shall have occurred an Event of
Default and:
(1) the Trustee is trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the Company are outstanding or is a trustee for more than
one outstanding series of Securities, as hereinafter defined, under a
single indenture of the Company, unless such other indenture is a
collateral trust indenture under which the only collateral consists of
Securities issued under this Indenture; provided that there shall be
excluded from the operation of this paragraph this Indenture with respect
to the Securities of any series other than that series or any indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if (i)
this Indenture and such other indenture or indentures and all series of
securities issuable are wholly unsecured and rank equally and such other
indenture or indentures (and such series) are specifically described in
Section 7.17 of this Indenture or are hereafter qualified under the Trust
Indenture Act of 1939, unless, in either case, the Commission shall have
found and declared by order pursuant to subsection (b) of Section 305 or
subsection (c) of Section 307 of the Trust Indenture Act of 1939 that
differences exist between the provisions of this Indenture (or such series)
and the provisions of such other indenture or indentures (or such series)
which are so likely to involve a material conflict of interest as to make
it necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture or such
other indenture or indentures, or (ii) the Company shall have sustained the
burden of proving, on application to the Commission and after opportunity
for hearing thereon, that the trusteeship under this Indenture and such
other indenture or the existence of more than one outstanding series under
a single indenture is not so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such under
one of such indentures or with respect to such series;
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(2) the Trustee or any of its directors or executive officers is an
underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (A) one individual may be a director and/or an executive officer of
the Trustee and a director and/or an executive officer of the Company, but
may not be at the same time an executive officer of both the Trustee and
the Company; (B) if and so long as the number of directors of the Trustee
in office is more than nine, one additional individual may be a director
and/or an executive officer of the Trustee and a director of the Company,
and (C) the Trustee may, be designated by the Company or by any underwriter
for the Company to act in the capacity of transfer agent, registrar,
custodian, paying agent, fiscal agent, escrow agent or depository, or in
any other similar capacity, or, subject to the provisions of paragraph (1)
of this subsection (c), to act as trustee whether under an indenture or
otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or
10% or more of the voting securities of the Trustee is beneficially owned
either by an underwriter for the Company or by any director, partner or
executive officer thereof, or is beneficially owned, collectively, by any
two or more of such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default, (A) 5% or more of the
voting securities, or 10% or more of any other class of security, of the
Company, not including the Securities issued under this Indenture and
securities issued under any other indenture under which the Trustee is also
trustee, or (B) 10% or more of any class of security of an underwriter for
the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter defined in
this subsection), 5% or more of the voting securities of any person who, to
the knowledge of the Trustee, owns 10% or more of the voting securities of,
or controls directly or indirectly or is under direct or indirect common
control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter defined in
this subsection), 10% or more
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of any class of security of any person who, to the knowledge of the
Trustee, owns 50% or more of the voting securities of the Company;
(9) the Trustee owns, on the date of an Event of Default upon the
Securities (exclusive of any period of grace or requirement of notice) or
any anniversary of such Event of Default while such Event of Default upon
the Securities remains outstanding, in the capacity of executor,
administrator, testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity, an aggregate of 25% or more
of the voting securities, or of any class of security, of any person, the
beneficial ownership of a specified percentage of which would have
constituted a conflicting interest under paragraphs (6), (7) or (8) of this
subsection (c). As to any such securities of which the Trustee acquired
ownership through becoming executor, administrator or testamentary trustee
of an estate which included them, the provisions of the preceding sentence
shall not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such estate do
not exceed 25% of such voting securities or 25% of any such class of
security. Promptly after the dates of any such Event of Default and
annually in each succeeding year that such Event of Default is continuing,
the Trustee shall make a check of its holdings of such securities in any of
the above-mentioned capacities as of such dates. If the Company fails to
make payment in full of principal of or interest on any of the Securities
when and as the same become due and payable, and such failure continues for
30 days thereafter, the Trustee shall make a prompt check of its holdings
of such securities in any of the above-mentioned capacities as of the date
of the expiration of such 30-day period, and after such date,
notwithstanding the foregoing provisions of this paragraph (9), all such
securities so held by the Trustee, with sole or joint control over such
securities vested in it, shall, but only so long as such failure shall
continue, be, considered as though beneficially owned by the Trustee for
the purposes of paragraphs (6), (7) and (8) of this subsection (c).
(10) except under the circumstances described in paragraphs (1), (3),
(4), (5) or (6) of Section 7.13(b) of this Indenture, the Trustee shall be
or shall become a creditor of the Company.
For purposes of paragraph (1) of this Section 7.8(c), the term "series
of securities" or "series" means a series, class or group of securities issuable
under an indenture pursuant to whose terms holders of one such series may vote
to direct the indenture trustee, or otherwise take action pursuant to a vote of
such holders, separately from holders of another such series; provided, that
"series of securities" or "series" shall not include any series of securities
issuable under an indenture if all such series rank equally and are wholly
unsecured.
The specifications of percentages in paragraphs (5) to (9), inclusive,
of this subsection (c) shall not be construed as indicating that the ownership
of such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (c); or
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For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection (c) only, (A) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but shall
not include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firm, or any certificate of interest or participation in
any such note or evidence of indebtedness; (B) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (C) the Trustee shall not be
deemed to be the owner or holder of (i) any security which it holds as
collateral security (as trustee or otherwise) for an obligation which is not in
default as defined in clause (B) above, or (ii) any security which it holds as
collateral security under this Indenture, irrespective of any default hereunder,
or (iii) any security which it holds as agent for collection, or as custodian,
escrow agent or depository, or in any similar representative capacity.
Except as above provided, the words "security" or "securities" as used
in this Indenture shall mean any note, stock, treasury stock, bond, debenture,
evidence of indebtedness, certificate of interest or participation in any profit
sharing agreement, collateral trust certificate, preorganization certificate or
subscription, transferable share, investment contract, voting trust certificate,
certificate of deposit for a security, fractional undivided interest in oil, gas
or other mineral rights, or, in general, any interest or instrument commonly
known as a "security," or any certificate of interest or participation in,
temporary or interim certificate for, receipt for, guarantee of, or warrant or
right to subscribe to or purchase, any of the foregoing.
Except in the case of a default in the payment of the principal of or
interest on any Security, the Trustee shall not be required to resign as
provided by this subsection if the Trustee shall have sustained the burden of
proving, on application to the Commission and after opportunity for hearing
thereon, that:
(i) the default under this Indenture may be cured or waived during a
reasonable period and under the procedures described in such application, and
(ii) a stay of the Trustee's duty to resign will not be inconsistent
with the interests of holders of the Securities. The filing of such an
application shall automatically stay the performance of the duty to resign until
the Commission orders otherwise.
(d) For the purposes of this Section 7.8:
(1) The term "underwriter" when used with reference to the Company
shall mean every person who, within one year prior to the time as of which
the determination is made, has purchased from the Company with a view to,
or has offered or sold for the Company in connection with, the distribution
of any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in any such
undertaking, or has participated or has had a participation in the direct
or indirect underwriting of any such undertaking, but such term shall not
include a person whose interest was limited to a commission from an
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underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" shall mean any director of a corporation or
any individual performing similar functions with respect to any
organization whether incorporated or unincorporated.
(3) The term "person" shall mean an individual, a corporation, a
partnership, an association, a joint stock company, a trust, an
unincorporated organization, or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" shall mean any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangement whereby a trustee or
trustees or agent or agents for the owner or holder of such security are
presently entitled to vote in the direction or management of the affairs of
a person.
(5) The term "Company" shall mean any obligor upon the Securities.
(6) The term "executive officer" shall mean the president, every vice
president, every trust officer, the cashier, the secretary, and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(e) The percentages of voting securities and other securities
specified in this Section 7.8 shall be calculated in accordance with the
following provisions:
(1) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section 7.8 (each of
whom is referred to as a "person" in this paragraph) means such amount of
the outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount," when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares, and the number of units if relating
to any other kind of security.
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(4) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(A) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(B) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(C) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise;
(D) securities held in escrow if placed in escrow by the issuer
thereof; provided, however, that any voting securities of an issuer
shall be deemed outstanding if any person other than the issuer is
entitled to exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes and provided, further, that, in
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
Section 7.9 Corporate Trustee Required; Eligibility. The Trustee
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hereunder shall at all times be a corporation organized and doing business under
the laws of the United States or of any State or of the District of Columbia,
authorized under such laws to exercise corporate trust powers, either (a) having
a combined capital and surplus of at least fifty million dollars ($50,000,000)
or (b) having a combined capital and surplus of at least ten million dollars
($10,000,000) and being a wholly-owned subsidiary of a corporation having a
combined capital and surplus of at least fifty million dollars ($50,000,000),
and in each case subject to supervision or examination by Federal, State or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 7.9, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section 7.9, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 7.10. Neither the Company or any other obligor upon the Securities, nor
any person directly or indirectly controlling, controlled by, or under common
control with such obligor shall serve as Trustee under this Indenture.
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Section 7.10 Resignation and Removal: Assignment of Successor.
------------------------------------------------
(a) The Trustee, or any Trustee or Trustees hereafter appointed, may
resign at any time with respect to the Securities of one or more series by
giving written notice of resignation to the Company and notice to the
Securityholders of that series in the manner specified in Section 1.4 within 30
days after such notice is given to the Company. Upon receiving such notice of
resignation and, if the Company shall deem it appropriate, evidence satisfactory
to it of such mailing, the Company shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series) by
Company Order, one copy of which shall be delivered to the resigning Trustee and
one copy to the successor Trustee. If no successor Trustee with respect to the
Securities of any series shall have been so appointed and have accepted
appointment within 30 days after the mailing of such notice of resignation, the
resigning Trustee of such series may petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any Securityholder
who has been a bona fide Holder of a Security or Securities of that series for
at least six months may, subject to the provisions of Section 6.8, on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor Trustee with respect to the Securities of such
series. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor Trustee with respect to the Securities
of such series.
(b) In case at any time any of the following shall occur
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 7.8 after written request therefor by the Company
or by any Securityholder who has been a bona fide Holder of a Security or
Securities for at least six months, unless the Trustee's duty to resign is
stayed as provided in Section 7.8 of this Indenture, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.9 and shall fail to resign after written request
therefor by the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or
(4) the Company shall for any other reason determine that the Trustee
shall be removed, provided that at the time of such removal there exists no
Event of Default or no event which, with the passage of time or giving of
notice, would become an Event of Default, then, in any such case, the
Company may remove the Trustee with respect to all Securities and appoint a
successor Trustee by Order of the Company, one copy of which shall be
delivered to the Trustee so removed and one copy to the successor
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Trustee, or, subject to the provisions of Section 6.8, any Securityholder
who has been a bona fide Holder of a Security or Securities for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor Trustee
or Trustees. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
Trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding may at any time remove the Trustee and
appoint a successor Trustee by delivery to the Trustee so removed, to the
successor Trustee and to the Company of the evidence provided for in Section 8.1
of the action taken by the Securityholders.
(d) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 7.10 shall
become effective upon acceptance of appointment by the successor Trustee or
Trustees as provided in Section 7.11.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of the Trustee for any cause, with
respect to the Securities of one more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and such successor Trustee
or Trustees shall comply with the applicable requirements of Section 7.11. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 7.11, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 7.11, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by giving
notice of such event to all Holders of Securities of such series as provided by
Section 1.4. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
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Section 7.11 Acceptance of Appointment by Successor.
--------------------------------------
(a) Any successor Trustee appointed as provided in Section 8.10 with
respect to all Securities shall execute, acknowledge and deliver to the Company
and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such successor Trustee without any further act, deed
or conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessors hereunder, with like effect as if originally
named as Trustee herein; but, nevertheless, on the written request of the
Company or of the successor Trustee, the Trustee ceasing to act shall execute
and deliver an instrument transferring to such successor Trustee all the rights
and powers of the Trustee so ceasing to act. Upon request of any such successor
Trustee, the Company shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights and powers. Any Trustee ceasing to act shall, nevertheless, retain a
senior claim upon all property or funds held or collected by such Trustee to
secure any amounts then due it pursuant to the provisions of Section 7.6.
(b) In case of the appointment of a successor Trustee as provided in
Section 7.10 with respect to the Securities of one or more (but not all) series,
the Company, the predecessor Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the predecessor Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
predecessor Trustee with respect to the Securities of that or those series as to
which the predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the predecessor Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the predecessor Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such predecessor Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such predecessor Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor Trustee
relates. Whenever there is a successor Trustee with respect to one or more (but
less than all) series of Securities issued pursuant to this Indenture, the terms
"Indenture" and
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"Securities" shall have the meanings specified in the provisos to the respective
definitions of those terms in Section 1.1 which contemplate such situation.
(c) No successor Trustee shall accept appointment as provided in this
Section 7.11 unless at the time of such acceptance such successor Trustee shall
be qualified under the provisions of Section 7.8 and eligible under the
provisions of Section 7.9. Upon acceptance of appointment by a successor
Trustee as provided in this Section 7.11, the Company shall mail to the
Securityholders by first-class mail notice thereof. If the Company fails to
mail such notice within 30 days after acceptance of appointment by the successor
Trustee, the successor Trustee shall, in its discretion, cause such notice to be
mailed at the expense of the Company.
Section 7.12 Merger, Conversion, Consolidation, Etc. Any corporation into
---------------------------------------
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger or conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation shall be qualified
under the provisions of Section 7.8 and eligible under the provisions of Section
7.9, without the execution or filing of any paper or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture and any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and deliver such
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor Trustee; and in all such certificates shall have the full force
which it is anywhere in the Securities or in this Indenture provided that the
certificate of the Trustee shall have; provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee or
authenticate Securities in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
Section 7.13 Preferential Collection of Claims Against Company.
-------------------------------------------------
(a) Subject to the provisions of subsection (b) of this Section 7.13, if
the Trustee shall be or shall become a creditor, directly or indirectly, secured
or unsecured, of the Company or of any other obligor on the Securities within
three months prior to a default, as defined in subsection (c) of this Section
7.13, or subsequent to such a default, then, unless and until such default shall
be cured, the Trustee shall set apart and hold in a special account for the
benefit of the Trustee individually, the Holders of the Securities and Coupons,
if any, and the holders of other indenture securities (as defined in subsection
(c) of this Section 7.13):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the
69
beginning of such three-month period and valid as against the Company and
its creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of this subsection,
or from the exercise of any right of set-off which the Trustee could have
exercised if a petition in bankruptcy had been filed by or against the
Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any person (other than the Company who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third person, and (iii) distributions made in
cash, securities or other property in respect of claims filed against
the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States Code, as now
constituted or hereafter in effect, or applicable state law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
security therefor simultaneously with the creation thereof and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default as defined in subsection (c) of this Section
7.13 would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for such
claim as provided in such paragraph (B) or (C), as the case may be, to
the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such three-month period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any
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pre- existing claim of the Trustee as such creditor, such claim shall have the
same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the Securityholders and the holders of other indenture securities in
such manner that the Trustee, the Securityholders and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to Title 11 of the
United States Code, as now constituted or hereafter in effect, or applicable
bankruptcy, insolvency or other similar law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee anything
on account of the receipt by it from the Company of the finds and property in
such special account and before crediting to the respective claims of the
Trustee, the Securityholders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to Title 11 of the United States
Code, as now constituted or hereafter in effect, or applicable bankruptcy,
insolvency or other similar law, but after crediting thereon receipts on account
of the indebtedness represented by their respective claims from all sources
other than from such dividends and from the funds and property so held in such
special account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code, as now constituted or hereafter in effect,
or applicable bankruptcy, insolvency or other similar law, whether such
distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceeding for
reorganization is pending shall have jurisdiction (i) to apportion between the
Trustee, the Securityholders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in
such special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made to
the Trustee, the Securityholders and the holders of other indenture securities
with respect to their respective claims, in which event it shall not be
necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of such
three-month period shall be subject to the provisions of this subsection (a) as
though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three-month period, it
shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
71
(1) the receipt of property or reduction of claim which would have
given rise to the obligation to account, if such Trustee had continued as
trustee, occurred after the beginning of such three-month period; and
(2) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of
this Section 7.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advance and of the circumstances surrounding the
making thereof is given to the Securityholders at the time and in the
manner provided in Section 5.4(c) with respect to reports pursuant to
subsections (a) and (b) thereof, respectively;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depository, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented, or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of this
Section 7.13;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self liquidating paper as defined in subsection (c) of
this Section 7.13.
(c) As used in this Section 7.13:
(1) The term "default" shall mean any failure to make payment in full
of the principal of or interest upon any of the Securities or upon the
other indenture securities when and as such principal or interest becomes
due and payable.
(2) The term "other indenture securities" shall mean securities upon
which the Company is an obligor (as defined in the Trust Indenture Act of
1939) outstanding
72
under any other indenture (A) under which the Trustee is also trustee, (B)
which contains provisions substantially similar to the provisions of
subsection (a) of this Section 7.13, and (C) under which a default exists
at the time of the apportionment of the funds and property held in said
special account.
(3) The term "cash transaction" shall mean 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.
(4) The term "self-liquidating paper" shall mean 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, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided 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.
(5) The term "Company" shall mean any obligor upon the Securities.
Section 7.14 Appointment of Authenticating Agent. The Trustee may appoint
-----------------------------------
an Authenticating Agent or Agents (which may be an Affiliate of the Company if
eligible to be an Authenticating Agent hereunder) with respect to one or more
series of Securities which shall be authorized to act on behalf of the Trustee
to authenticate Securities of such series issued upon original issue or upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 2.6, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation having a
combined capital and surplus of not less than the equivalent of $50,000,000 and
subject to supervision or examination by Federal or State authority or the
equivalent foreign authority, in the case of an Authenticating Agent who is not
organized and doing business under the laws of the United States of America, any
State thereof or the District of Columbia. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such
73
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall be the successor of the Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 7.14 without the execution or filing of any paper or any further act on
the part of the Trustee or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee, to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such termination, or in case at any time
any Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 7.14, the Trustee promptly may appoint a successor
Authenticating Agent and shall give written notice of such appointment to the
Company, and shall cause a notice of any such appointment to be given in the
manner prescribed by Section 1.4, to the Holders of Securities of the series
with respect to which such Authenticating Agent shall act. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section 7.14. The Trustee agrees to pay to the
Authenticating Agent from time to time reasonable compensation for its services,
to the extent such payment has not otherwise been made by the Company, and the
Trustee shall be entitled to be reimbursed for such payments subject to the
provisions of Section 7.6.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein issued
under the within-mentioned Indenture.
full name of Trustee
As Trustee
By
As Authenticating Agent
By
Authorized Officer Signatory
74
If all of the Securities of a series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment or other place
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 14.6 and need not be accompanied by an
Opinion of Counsel), shall appoint in accordance with this Section an
Authenticating Agent (which may be an Affiliate of the Company if eligible to be
appointed as an Authenticating Agent hereunder) having an office in such Place
of Payment or other place designated by the Company with respect to such series
of Securities.
Section 7.15 Judgment Currency. If for the purpose of obtaining a
-----------------
judgment in any court with respect to any obligation of the Company hereunder or
under any Security or Coupon, it shall become necessary to convert into any
other currency or currency unit any unit in the currency or currency unit due
hereunder or under such Security or Coupon, then such conversion shall be made
at the Currency Conversion Rate (as defined below) as in effect on the date the
Company shall make payment to any person in satisfaction of such judgment. If
pursuant to any such judgment, conversion shall be made on a date other than the
date payment is made and there shall occur a change between such Currency
Conversion Rate and the Currency Conversion Rate as in effect on the date of
payment, the Company agrees to pay such additional amounts (if any) as may be
necessary to ensure that the amount paid is the amount in such other currency or
currency unit which, when converted at the Currency Conversion Rate as in effect
on the date of payment or distribution, is the amount then due hereunder or
under such Security or Coupon. Any amount due from the Company under this
Section 7.15 shall be due as a separate debt and is not to be affected by or
merged into any judgment being obtained for any other sums due hereunder or in
respect of any Security or Coupon so that in any event the Company's obligations
hereunder or under such Security or Coupon will be effectively maintained as
obligations in such currency or currency unit. In no event, however, shall the
Company be required to pay more in the currency or currency unit stated to be
due hereunder or under such Security or Coupon.
For purposes of this Section 7.15, "Currency Conversion Rate" shall mean
the spot rate at which in accordance with normal banking procedures the currency
or currency unit into which an amount due hereunder or under any Security or
Coupon is to be converted could be purchased with the currency or currency unit
due hereunder or under any Security or Coupon from major banks located in New
York, London or any other principal market for such purchased currency or
currency unit.
Section 7.16 Corporate Trust Office. At the date of this Indenture, the
----------------------
Corporate Trust Office of the Trustee is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇.
75
ARTICLE 8.
CONCERNING THE SECURITYHOLDERS
Section 8.1 Acts of Holders. Any request, demand, authorization,
---------------
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing. Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of such series may, alternatively, be embodied in
and evidenced by the record of Holders of Securities of such series voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article 9, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument, or any such record, or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 7.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Article 8. The record of
any meeting of Holders of Securities shall be proved in the manner provided in
Section 9.6.
Section 8.2 Authenticity of Instruments. The fact and date of the
---------------------------
execution by any Person of any such instrument or writing referred to in Section
8.1 may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
Section 8.3 Authenticity of Bearer Securities.
---------------------------------
(a) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed by any trust company, bank,
banker or other depository, wherever situated, showing that at the date therein
mentioned such Person had on deposit with such depository, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, (2) such Bearer Security is
produced to the Trustee by some other Person, (3) such
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Bearer Security is surrendered in exchange for a Registered Security or (4) such
Bearer Security is no longer Outstanding.
(b) The fact and date of execution of any such instrument or writing
pursuant to clause (a) above, the authority of the Person executing the same and
the principal amount and serial numbers of Bearer Securities held by the Person
so executing such instrument or writing and the date of holding the same may
also be proved in any other manner which the Trustee deems sufficient; and the
Trustee may in any instance require further proof with respect to any of the
matters referred to in this clause.
(c) The principal amount and serial numbers of Registered Securities held
by any Person and the date of holding the same shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of a Holder shall bind every future Holder of the same Security
and/or Coupon and the Holder of every Security and/or Coupon issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security and/or Coupon.
Section 8.4 Determination of Principal Amounts of Original Issue Discount
-------------------------------------------------------------
Securities and Securities in Foreign Currencies. Whenever any Act is taken
-----------------------------------------------
hereunder by the Holders of Original Issue Discount Securities, the principal
amount of an Original Issue Discount Security that will be deemed to be
outstanding will be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof. Whenever any Act is to be taken hereunder by the Holders of two or
more series of Securities denominated in different currencies (currency units),
then, for the purpose of determining the principal amount of Securities held by
such Holders, the aggregate principal amount of the Securities denominated in a
Foreign Currency (or any currency units) shall be deemed to be that amount of
Dollars that could be obtained for such principal amount on the basis of the
spot rate of exchange for such Foreign Currency or such currency unit as
determined by the Company or by any authorized Exchange Rate Agent and evidenced
to the Trustee by an Officers' Certificate as of the date the taking of such Act
by the Holders of the requisite percentage in principal amount of the Securities
is evidenced to the Trustee or such other date selected by the Company which is
not more than 10 days before such date. Any such determination by the Company
or by any such Exchange Rate Agent shall be conclusive and binding on all
Holders, the Company and the Trustee, and neither the Company nor any such
Exchange Rate Agent shall be liable therefor in the absence of bad faith.
Section 8.5 Company Solicitation of Holder. If the Company shall solicit
------------------------------
from the Holders any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of the Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand,
77
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purpose of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months, after the record
date.
ARTICLE 9.
SECURITYHOLDERS' MEETING
Section 9.1 Purposes for Which Meetings May be Called.
-----------------------------------------
(a) A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to the provisions of this Article Ten for
any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to
be taken by Securityholders pursuant to any of the provisions of Article 6;
(2) to remove the Trustee and appoint a successor trustee pursuant to
the provisions of Article 7;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.2; or
(4) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the
Securities of a series under any other provision of this indenture or under
applicable law.
Section 9.2 Call, Notice and Place of Meeting. The Trustee may at any
---------------------------------
time call a meeting of Securityholders of any series to take any action
specified in Section 9.1, to be held at such time and at such place in the City
of Pittsburgh, Commonwealth of Pennsylvania, or in the City of New York, State
of New York, as the Company and Trustee shall determine. Notice of every
meeting of the Securityholders of any series setting forth the time and the
place of such meeting and in general term the action proposed to be taken at
such meeting, shall be provided to all Securityholders of such series in the
manner specified in Section 1.4, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
78
Section 9.3 Call of Meetings by Company or Holders. In case at any time
--------------------------------------
the Company pursuant to a resolution of its Board of Directors, or the Holders
of at least 25% in aggregate principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of Securityholders
of such series to take any action specified in Section 9.1 by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have made publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or
the Holders of Securities of such series in the amount above specified may
determine the time and the location in the City of Pittsburgh, Commonwealth of
Pennsylvania, or the City of New York, State of New York, or the Company may
determine the time and location in any other place, for such meeting and may
call such meeting by providing notice thereof as provided in Section 9.2.
Section 9.4 Persons Entitled to Vote. To be entitled to vote at any
------------------------
meeting of Securityholders of any series a Person shall (a) be a Holder of one
or more Outstanding Securities of such series; or (b) be a Person appointed by
an instrument in writing as proxy for a Holder of one or more Outstanding
Securities of such series. The only Persons who shall be entitled to be present
or to speak at any meeting of Securityholders of any series shall be the Persons
entitled to vote at such meeting and their counsel and any representatives of
the Trustee and its counsel and any representatives of the Company and its
counsel.
Section 9.5 Determination of Voting Rights: Conduct and Adjournment of
----------------------------------------------------------
Meetings. Notwithstanding any other provisions of this Indenture, the Trustee
--------
may make such reasonable regulations as it may deem advisable for any meeting of
Securityholders of a series, in regard to the proof of the holding of Securities
of such series and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities of a series and the appointment of any proxy shall be proved in
the manner specified in Article 9; provided, however, that such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Article 9.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders of a series as provided in Section 9.3, in which
case the Company or the Securityholders of that series calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a secretary of the meeting shall be elected by vote of the holders
of a majority in principal the Outstanding Securities of that series represented
at the meeting and entitled to vote.
Subject to the provisions of Section 9.9, at any meeting each
Securityholder of that series or proxy shall be entitled to one vote for each
$1,000 (or equivalent thereof) principal amount of Outstanding Securities of
such series held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any
79
Security of that series challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities of such series held by him or
instruments in writing as aforesaid duly designating him as the person to vote
on behalf of other Securityholders of that series. Any meeting of
Securityholders of a series duly called pursuant to the provisions of Section
9.2 or 9.3 may be adjourned from time to time, and the meeting may be held as so
adjourned without further notice.
Any meeting of Holders of Securities of any series duly called pursuant to
Section 9.2 or 9.3 at which a quorum is present may be adjourned from time to
time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 9.6 Counting Votes and Recording Action of Meetings. The vote
-----------------------------------------------
upon any resolution submitted to any meeting of Securityholders of any series
shall be by written ballots on which shall be subscribed the signatures of the
Securityholders of such series or of their rep by proxy and the principal amount
and serial numbers of the Outstanding Securities of such series held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports of all votes cast at the meeting. A record of
the proceedings of each meeting of Securityholders of a series shall be prepared
by the secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
mailed as provided in Section 9.2 or 9.3 and, if applicable, Section 9.8. The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and shall be delivered to the Company and a copy
shall be delivered to the Trustee to be preserved by the Trustee, the latter to
have attached thereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein stated.
Section 9.7 No Delay in Exercise of Rights. Nothing in this Article 9
------------------------------
contained shall be deemed or construed to require any delay in the exercise of
any right or rights conferred upon or reserved to the Trustee or to the
Securityholders of a series under any of the provisions of this Indenture or of
the Securities of a series by reason of any call of a meeting of Securityholders
of a series or any rights expressly or impliedly conferred hereunder to make
such call.
Section 9.8 Quorum: Action. The Persons entitled to vote a majority in
--------------
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series except as provided
pursuant to Section 2.1. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other
case, the meeting may be adjourned for a period of not less than 10 days as
80
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 10.2, except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Subject to the foregoing, at the reconvening of any such
further adjourned meeting, the Persons entitled to vote 25% in aggregate
principal amount of the Outstanding Securities of such series shall constitute a
quorum for the taking of any action set forth in the notice of the original
meeting. Notice of the reconvening of an adjourned meeting which was adjourned
for lack of a quorum shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by Section 6.6 and the proviso to Section 10.2, and
subject to the provisions described in the next succeeding paragraph, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
lesser of (i) the Holders of a majority in principal amount of the Outstanding
Securities of that series and (ii) 66 2/3% in principal amount of Outstanding
Securities of such series represented and voting at such meeting or adjourned
meeting; provided, however, that any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action which
this Indenture expressly provides may be made, given or taken by the Holders of
a specified percentage which is less than a majority in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the lesser of (i) the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series and (ii) a
majority in principal amount of Securities of such series represented and voting
at such meeting or adjourned meeting. Any resolution passed or decision taken
at any meeting of Holders of Securities of any series duly held in accordance
with this Section shall be binding on all the Holders of Securities of such
series and the related Coupons, whether or not present or represented at the
meeting.
With respect to any consent, waiver or other action which this Indenture
expressly provides may be given by the Holders of a specified percentage of
Outstanding Securities of all series affected thereby (acting as one class),
only the principal amount of Outstanding Securities of any series represented at
a meeting or adjourned meeting duly reconvened at which a quorum is present,
held in accordance with this Section, and voting in favor of such action, shall
be counted for purposes of calculating the aggregate principal amount of
Outstanding Securities of all series affected thereby favoring such action.
Section 9.9 Disregard of Securities Owned by Company or Controlling
-------------------------------------------------------
Person. In determining whether the Holders of the requisite aggregate principal
amount of Securities have concurred in any direction, consent or waiver under
this Indenture, Securities which are owned by the Company or any other obligor
on the Securities or by any person directly or indirectly controlling,
controlled by or under direct or indirect common control with the Company or any
other obligor on the Securities shall be disregarded and deemed not to be
81
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Securities which the Trustee knows are
so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding for the purposes of this Section
9.9, if the pledgee shall establish to the satisfaction of the Trustee the
pledgee's right to vote such Securities and that the pledgee is not a person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. In case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection for the Trustee.
ARTICLE 10.
SUPPLEMENTAL INDENTURES
Section 10.1 Supplemental Indentures Without Consent of Holders. The
--------------------------------------------------
Company when authorized by a resolution of its Board of Directors, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of the execution thereof)
for one or more of the following purposes:
(a) to evidence the succession of another corporation to the Company or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Company set forth herein and in the
Securities and any Coupons;
(b) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions as their respective Boards of Directors
and the Trustee shall consider to be for the protection of the Holders of all or
any series of Securities (and if such covenants, restrictions, conditions or
provisions are for the benefit of less than all series of Securities, stating
that such covenants, restrictions, conditions or provisions are expressly being
included solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company and to make the occurrence, or the
occurrence and continuance, of a default in any of such additional covenants,
restrictions, conditions or provisions a default or an Event of Default
permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth, provided, however, that in respect of any
such additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may limit the right of
the Holders of a majority in aggregate principal amount of the Securities of
that series to waive such default;
(c) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to facilitate the issuance of Securities in bearer
form, registrable or not registrable as to principal, and with or without
interest coupons; to change or eliminate any
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restrictions on the payment of principal of or any premium or interest on Bearer
Securities, to permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations; provided that any such addition or
change shall not materially adversely affect the interests of the Holders of
Securities of any series or any related Coupons in any material respect;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provisions contained herein or in any supplemental
indenture, or to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee, or to make such other provisions in regard to matters or
questions arising under this Indenture, provided, that no such action shall
adversely affect the interests of the Holders of the Securities of any series in
any material respect;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.2;
(f) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 7.11;
(g) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is materially adversely affected by such
change in or elimination of such provision;
(h) if allowed under applicable laws and regulations, to permit payment in
the United States of principal, premium or interest on Bearer Securities or
Coupons, if any;
(i) to provide for the issuance of uncertificated Securities of one or
more series in addition to or in place of certificated securities; or
(j) make any other change to this Indenture or the form or terms of
Securities of any series which does not have a materially adverse effect on the
interests of the Holders of the Securities of any series.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
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Any supplemental indenture authorized by the provisions of this Section
10.1 may be executed by the Company and the Trustee without the consent of the
Holders of any of the Securities of each series affected by such supplemental
indenture at the time Outstanding, notwithstanding any of the provisions of
Section 10.2.
Section 10.2 Supplemental Indentures With Consent of Holders. With the
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consent (evidenced as provided in Section 8.1) of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of all
series affected by such supplemental indenture (acting as one class), by Act of
said Holders delivered to the Company and the Trustee, the Company when
authorized by resolutions of its Board of Directors, and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of 1939
as in force at the date of the execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture, or of any supplemental indenture or of modifying in any manner
the rights of the Holders of the Securities of such series; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Security of such series so affected,
(a) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of any Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 6.1, or change any
obligation to pay additional amounts, or change any Place of Payment where, or
the currency, currencies or currency unit or units in which, any Security or any
premium or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date),
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
(c) change the obligation of the Company, with respect to Outstanding
Securities of a series, to maintain an office or agency in the places and for
the purposes specified in Section 4.2 for such series,
(d) if the Securities of such series are convertible into any other
security of the Company, make any change that would materially adversely affect
the right to convert such Securities,
(e) change the terms of this Section 10.2.
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For purposes of this Section 10.2, if the Securities of any series are
issuable upon the exercise of warrants, each Holder of an unexercised and
unexpired warrant with respect to such series shall be deemed to be a Holder of
Outstanding Securities of such series in the amount issuable upon the exercise
of such warrant. For such purposes, the ownership of any such warrant shall be
determined by the Company in a manner consistent with customary commercial
practices. The Trustee for such series shall be entitled to rely on an
Officers' Certificate as to the principal amount of Securities of such series in
respect of which consents shall have been executed by Holders of such warrants.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
Upon a Company Request, accompanied by a copy of a resolution of its Board
of Directors, certified by the Secretary or an Assistant Secretary of the
Company, authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties, or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture. The Trustee, subject to the provisions of
Sections 7.1 and 7.2, may receive an Opinion of Counsel as conclusive evidence
that any such supplemental indenture complies with the provisions of this
Article 10 and shall be entitled to rely on such opinion.
It shall not be necessary for the consent of the Securityholders under this
Section 10.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 10.2, the
Company shall mail a notice to the Securityholders setting forth in general
terms the substance of such supplemental indenture. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
Section 10.3 Effect of Supplemental Indentures. Upon the execution of any
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supplemental indenture pursuant to the provisions of this Article 10, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
of Securities of such series shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
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Section 10.4 Reference in Securities to Supplemental Indentures.
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Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article 10 or after
any action taken at a Securityholders' meeting pursuant to Article 9, may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture or as to
any such action. New Securities of such series so modified as to conform, in
the opinion of the Trustee and the Board of Directors of the Company to any
modification of this Indenture contained in any such Supplemental indenture or
reflecting such action may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities of such series then
Outstanding.
ARTICLE 11.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 11.1 Company May Consolidate, Etc. Only on Certain Terms. Nothing
---------------------------------------------------
contained in this Indenture or in any of the Securities of any series shall
prevent any consolidation or merger of the Company with or into any other
corporation or corporations or successive consolidations or mergers in which the
Company or its successor or successors shall be a party or parties, or shall
prevent any sale or conveyance of the property of the Company as an entirety or
substantially as an entirety to any other corporation authorized to acquire and
operate the same; provided, however, the Company hereby covenants and agrees,
that any such consolidation, merger, sale or conveyance shall be upon the
condition that (a) immediately after such consolidation, merger, sale or
conveyance, the corporation (whether the Company or such other corporation)
formed by or surviving any such consolidation or merger, or to which such sale
or conveyance shall have been made, shall not be in default in the performance
or observance of any of the terms, covenants and conditions of this Indenture to
be kept or performed by the Company; (b) the corporation (if other than the
Company) formed by or surviving any such consolidation or merger, or to which
such sale or conveyance shall have been made, shall be a corporation organized
under the laws of the United States or any State thereof; (c) the due and
punctual payment of the principal of (and premium, if any) and interest on all
of the Securities of any series, according to their tenor, and the due and
punctual performance and observance of all the covenants and conditions of this
Indenture to be performed or observed by the Company, as the case may be,
including, without limitation, the performance of any act or obligation relating
to any conversion of Securities pursuant to Article Sixteen hereof, shall be
expressly assumed, by supplemental indenture, satisfactory in form to the
Trustee, executed and delivered to the Trustee by the corporation formed by such
consolidation, or into which the Company, as the case may be, shall have been
merged, or by the corporation which shall have acquired such property. If at
any time there shall be any consolidation or merger or sale or conveyance of
property to which the covenant of this Section 11.1 is applicable, then in any
such event the successor corporation will promptly deliver to the Trustee:
(a) An Officers' Certificate stating that as of the time immediately after
the effective date of any such transaction the covenants of the Company
contained in this Section
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11.1 have been complied with and the successor corporation is not in default
under the provisions of the Indenture; and
(b) An Opinion of Counsel stating that in his opinion such covenants have
been complied with and that any instrument or instrument executed in the
performance of such covenants comply with the requirements thereof.
Section 11.2 Rights and Duties of Successor Corporation. In case of any
------------------------------------------
such consolidation, merger, sale or conveyance and upon the assumption by the
successor corporation, by a supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and interest on all of the Securities of that series
and the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed or observed by the Company, such
successor corporation shall succeed to and be substituted for the Company with
the same effect as if it had been named herein as the party of the first part.
Such successor corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company any or all of the
Securities of any series issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee; and upon the Order of
such successor corporation, instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall make available for delivery any Securities of such series
which previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication, and any Securities of such series
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities of such series so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities of that series theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities of
such series had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance, such changes
in phraseology and form (but not in substance) may be made in the Securities of
such series thereafter to be issued as may be appropriate.
Subject to the provisions of Section 11.1, nothing contained in this
Indenture or in any of the Securities of any series shall prevent the Company
from merging into itself any other corporation (whether or not affiliated with
the Company) or acquiring by purchase or otherwise all or any part of the
property of any other corporation (whether or not affiliated with the Company).
87
ARTICLE 12.
SATISFACTION AND DISCHARGE OF INDENTURE:
UNCLAIMED MONEYS
Section 12.1 Satisfaction and Discharge of Indenture. This Indenture
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shall, upon Company Request, cease to be of further effect (except as to any
surviving rights of (as applicable) registration of transfer or exchange of
Securities and Coupons, if any, of such series herein expressly provided for),
and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
series, when
(a) either
(1) all Securities and Coupons of such series theretofore
authenticated and delivered (other than (i) Securities and Coupons of such
series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.6, (ii) Securities and Coupons of
such series for whose payment money has theretofore been deposited in and
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust as provided in Section 12.5, (iii)
Coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange whose surrender is
not required or has been waived as provided in Section 2.5, and (iv)
Coupons appertaining to Securities called for redemption and maturing after
the relevant Redemption Date whose surrender has been waived as provided in
Section 3.7) have been delivered to the Trustee for cancellation; or
(2) all such Securities and Coupons of such series not theretofore
delivered to the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity within
one year, or
(C) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company, and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose for which it was received, an amount in the
currency or currency unit in which such Securities and Coupons of such
series are payable sufficient to pay and discharge the entire
indebtedness on such Securities and Coupons of such series not
theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest, if any, to the date of such
deposit (in the case of Securities and
88
Coupons of such series which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(3) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to a series, the obligations of the Company to the Trustee under Section
7.6, the obligations of the Trustee to any Authenticating Agent under Section
7.14 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 12.2 and Section 12.5 shall survive; and any obligation of the
Company upon or with respect to the conversion of the Securities of a series
into any other security of the Company pursuant to the terms of the Securities
of such series or Article Seventeen hereof, shall survive until the Securities
of such series are no longer Outstanding.
Section 12.2 Application of Trust Money. Subject to Section 12.5, all
--------------------------
money deposited with the Trustee pursuant to Sections 12.1 and 12.3 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and Coupons, if any, and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such money
has been deposited with the Trustee.
Section 12.3 Satisfaction, Discharge and Defeasance of Securities of Any
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Series. Unless this Section is specified pursuant to Section 2.1, to be not
------
applicable to Securities and Coupons, the Company shall be Discharged (as
defined below) from its obligations with respect to Securities and Coupons, if
any, of such series after the applicable conditions set forth below have been
satisfied:
(a) (1) the Company has paid or caused to be paid all other sums payable
with respect to the Outstanding Securities and Coupons, if any, of such series
(in addition to any required under (b)); and
(2) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of the
entire indebtedness on all Outstanding Securities and Coupons, if any, of
any such series have been complied with;
(b) (1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as a trust fund specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the Securities and
Coupons, if any, of such series (i)
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money in an amount (in such currency, currencies or currency unit or units in
which any Outstanding Securities and Coupons, if any, of such series are
payable) or (ii) in the case of Securities and Coupons, if any, denominated in
Dollars, U.S. Government Obligations (as defined below) or, in the case of
Securities and Coupons, if any, denominated in a Foreign Currency, Foreign
Government Securities (as defined below), which through the payment of interest
and principal in respect thereof in accordance with their terms will provide,
not later than the due date of any payment of principal (including any premium)
and interest, if any, under the Securities and Coupons, if any, of such series,
money in an amount or (iii) a combination of (i) and (ii) sufficient (in the
opinion with respect to (ii) and (iii) of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee) to pay and discharge each installment of principal of
(including any premium), and interest if any, on, the Outstanding Securities and
Coupons, if any, of such series on the dates such installments of interest or
principal are due, in the currency, currencies or currency unit or units, in
which such Securities and Coupons, if any, are payable; provided, however, that
"Outstanding" for the purpose of this Section 12.3 shall also include all
Securities of such series which may be issued upon exercise of warrants;
provided, further, however, that the Company shall not make or cause to be made
the deposit provided by this clause (1) unless the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that there will not occur any
violation of the Investment Company Act of 1940, as amended, on the part of the
Company, the trust funds representing such deposit or the Trustee as a result of
such deposit and the related exercise of the Company's option under this Section
12.3;
(2) (i) no Event of Default or event (including such deposit) which
with notice or lapse of time would become an Event of Default shall have
occurred and be continuing on the date of such deposit, (ii) no Event of
Default as defined in clause (f) or (g) of Section 6.1, or event which with
notice or lapse of time or both would become an Event of Default under
either such clause, shall have occurred within 90 days after the date of
such deposit and (iii) such deposit and the related intended consequence
under (a) or (b) will not result in any default or event of default under
any material indenture, agreement or other instrument binding upon the
Company, or any Subsidiary or any of their properties; and
(3) the Company shall have delivered to the Trustee an Opinion of
Counsel or a ruling by the Internal Revenue Service in form and substance
satisfactory to the Trustee, to the effect that Holders of the Securities
and Coupons, if any, 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 12.3 and will be subject to federal income
tax in the same amount, in the same manner and at the same times as would
have been the case if such option had not been exercised.
Any deposits with the Trustee referred to in clause (b)(1) above will be
made under the terms of an escrow trust agreement in form and substance
satisfactory to the Trustee which shall provide that any payment of principal of
(including any premium) or interest on the funds or Securities so deposited in
excess of the amount required to pay each installment of principal of (including
any premium) and interest, if any, on the Outstanding
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Securities and Coupons, if any, shall be paid to the Company from time to time.
If any Outstanding Securities and Coupons of such series are to be redeemed
prior to their Stated Maturity, whether pursuant to any mandatory redemption
provisions or in accordance with any mandatory sinking fund requirement, the
applicable escrow trust agreement will provide therefor and the Company will
make arrangements for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company.
Section 12.4 Definitions. The following terms, as used in this Article
-----------
12, shall have the following meanings:
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under the
Securities and Coupons, if any, of the series as to which this Section is
specified as applicable as aforesaid and to have satisfied all the obligations
under Sections 11.1 and 11.2 of this Indenture relating to the Securities and
Coupons, if any, of such series (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same) except that the rights
of Holders thereof to receive, from the trust fund described in clause (b)(1) of
Section 12.3, payment of (including any premium) the principal of and the
interest, if any, on such Securities and Coupons, if any, when such payments are
due, shall survive such discharge. The Company shall reimburse the trust fund
for any loss suffered by it as a result of any tax, fee or other charge imposed
on or assessed on the Trustee as a result deposited U.S. Government Obligations
or Foreign Government Securities, as the case may be, or any principal or
interest paid on such obligations, and, subject to the provisions of Section
7.6, shall indemnify the Trustee against any claims made against the Trustee in
connection with any such loss.
"Foreign Government Securities" means, with respect to the Securities and
Coupons, if any, of any series that are denominated in a Foreign Currency,
securities that are (i) direct obligations of the government that issued or
caused to be issued such currency for the payment of which obligations its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of such government the
timely payment of which is unconditionally guaranteed as a full faith and credit
obligation by such government, which, in either case under clauses (i) or (ii),
are not callable or redeemable at the option of the issuer thereof.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the timely
payment of which is unconditionally guaranteed as a full faith and credit
obligation of the United States, which, in either case under clauses (i) or
(ii), are not callable or redeemable at the option of the issuer thereof, and
will 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 specified
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
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any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
Section 12.5 Repayment of Money Held by Trustee. Any moneys deposited
----------------------------------
with the Trustee or any Paying Agent for the payment of the principal of (and
premium, if any) or interest on any Securities of any series and not applied but
remaining unclaimed by the Holders of Securities of such series and Coupons, if
any, for two years after the date upon which such payment shall have become due
shall be repaid to the Company by the Trustee upon the Order of the Company, or
(if then held by the Company) shall be discharged from such trust, and the
Holder of such Securities and Coupons, if any, entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Company for
the payment thereof and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, the City of New York, notice that such
money remains unclaimed and that, after a date specified herein, which shall not
be less than 30 days after such publication or mailing, any unclaimed balance of
said moneys then remaining will be returned to the Company.
ARTICLE 13.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 13.1 No Recourse: Exemption from Personal Liability. No recourse
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under or upon any obligation, covenant or agreement of this Indenture, or of any
Security of any series or Coupon, if any, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer, director or employee, as such, past, present or future, of
the Company or of any successor corporation, either directly or through the
Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers, directors or employee, as such, of the
Company or of any successor corporation, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
of such series or Coupon, if any, or implied therefrom; and that any and all
such personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer, director or employee, as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any
Security of any series or Coupon, if any, or implied therefrom, are hereby
expressly waived and released as a condition
92
of, and as a consideration for, the execution of this Indenture and the issue of
such Securities or Coupon, if any.
ARTICLE 14.
MISCELLANEOUS PROVISIONS
Section 14.1 Successors and Assigns. All the covenants, stipulations,
----------------------
promises, and agreements in this Indenture contained by or on behalf of the
Company shall bind their successors and assigns, whether so expressed or not.
Section 14.2 Validity of Acts by Successor Corporations. Any act or
------------------------------------------
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done or performed with like force and effect by the like board, committee or
officer of any corporation that shall at that time be the successor of the
Company.
Section 14.3 Surrender of Powers. The Company by instrument in writing
-------------------
executed by authority of their respective Boards of Directors and delivered to
the Trustee may surrender any of the powers or rights reserved to the Company
and thereupon such power or right so surrendered shall terminate both as to the
Company and as to any successor corporation.
Section 14.4 Notices. Any notice or demand which by any provision of this
-------
Indenture is required or permitted to be given or served by the Trustee or by
the holders of Securities of such series to or on the Company shall be delivered
by hand or sent by first-class mail postage prepaid addressed (until another
address is filed by the Company with the Trustee), as follows:
Company:
USX CORPORATION
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
Any notice, direction, request or demand by any Securityholder to or upon
the Trustee shall be deemed to have been sufficiently given or made for all
purposes, if given or made in writing, at the Corporate Trust Office of the
Trustee.
Section 14.5 Governing Law. This Indenture and each Security of each
-------------
series and any Coupon shall be deemed to be a contract made under the laws of
the State of New York and for all purposes shall be governed by and construed in
accordance with the laws of said State, unless otherwise required by mandatory
provisions of law.
Section 14.6 Compliance Certificates and Opinions. Upon any application
------------------------------------
or demand by the Company to the Trustee to take any action under any of the
provisions of this
93
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent (including any covenant compliance with
which constitutes a condition precedent), if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture, other than certificates provided pursuant to Section 4.6,
shall include (1) a statement that the person making such certificate or opinion
has read such covenant or condition; (2) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in the
opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (4) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.
Section 14.7 Effect of Headings and Table of Contents. The Article and
----------------------------------------
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 14.8 Conflict with Trust Indenture Act. If and to the extent that
---------------------------------
any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture which is required to be included in this
Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act
of 1939, such required provision shall control.
Section 14.9 Benefits of Trust Indenture. Nothing in this Indenture or in
---------------------------
the Securities of any series or any Coupons, expressed or implied, shall give or
be construed to give to any person, firm or corporation, other than the parties
hereto and the Holders of the Securities of such series any legal or equitable
right, remedy or claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained; all its covenants, conditions
and provisions being for the sole benefit of the parties hereto and the Holders
of the Securities of such series.
Section 14.10 No Security Interest. Nothing in this Indenture or in the
--------------------
Securities of any series, expressed or implied, shall be construed to constitute
a security interest under the Uniform Commercial Code or similar legislation, as
now or hereafter enacted and in effect, in any jurisdiction where property of
the Company or its Subsidiaries is located.
Section 14.11 Execution in Counterparts. This Indenture may be executed
-------------------------
in any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
94
Section 14.12 Separability. In case any provision in this Indenture or in
------------
the Securities of any series, or coupons, if any, shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not, to the extent permitted by applicable law, in any way be
affected or impaired thereby.
ARTICLE 15.
SUBORDINATION
Section 15.1 Securities Subordinate to Senior Indebtedness. The Company
---------------------------------------------
covenants and agrees, and each Holder of Securities of any series (or any
Coupons appertaining thereto) by the Holder's acceptance thereof, likewise
covenants and agrees, that, to the extent and in the manner hereinafter set
forth in this Article 15, the indebtedness represented by the Securities of such
series (or any Coupons appertaining thereto) and the payment of the principal of
(and premium, if any) and interest on each and all of the Securities of such
series (or any Coupons appertaining thereto) are hereby expressly made
subordinate and junior in right of payment to the prior payment in full of all
Senior Indebtedness of the Company, to the extent and in the manner herein set
forth (unless a different manner is set forth in the Securities of such series,
or any Coupons appertaining thereto). No provision of this Article 15 shall
prevent the occurrence of any default or Event of Default hereunder.
Section 15.2 Payment Over of Proceeds Upon Dissolution, Etc. Upon any
-----------------------------------------------
payment by the Company or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due upon all Senior Indebtedness of the Company
shall first be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made by the Company on account
of the principal (and premium, if any) or interest on the Securities of any
series (or any Coupons appertaining thereto); and upon any such dissolution or
winding-up or liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Holders of the Securities of such series
(or any Coupons appertaining thereto) or the Trustee would be entitled to
receive from the Company, except for the provisions of this Article 15, shall be
paid by the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the
Holders of the Securities of such series (or any Coupons appertaining thereto)
or by the Trustee under the Indenture if received by them or it, directly to the
holders of Senior Indebtedness of the Company (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such holders, as
calculated by the Company) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness in
full, in money or money's worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior
95
Indebtedness, before any payment or distribution is made to the Holders of the
Securities of such series (or any Coupons appertaining thereto) or to the
Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee before all Senior Indebtedness of the Company is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior Indebtedness of the
Company, as the case may be, remaining unpaid to the extent necessary to pay
such Senior Indebtedness in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the benefit of
the holders of such Senior Indebtedness.
For purposes of this Article 15 only, the words `cash, property or
securities' shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment which are subordinated
in right of payment to all Senior Indebtedness which may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Securities of any series (or any Coupons appertaining thereto) are so
subordinated as provided in this Article 15. The consolidation of the Company
with, or the merger of the Company into, another Person or the liquidation or
dissolution of the Company following the conveyance or transfer of its
properties and assets substantially as an entirety to another Person upon the
terms and conditions set forth in Article 11 shall not be deemed a dissolution,
winding up, liquidation, reorganization, assignment for the benefit of creditors
or marshalling of assets and liabilities of the Company for the purposes of this
Section if the Person formed by such consolidation or into which the Company is
merged or, the Person which acquires by conveyance or transfer such properties
and assets substantially as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
set forth in Article 11.
Section 15.3 Prior Payment of Senior Indebtedness Upon Acceleration of
---------------------------------------------------------
Securities. In the event that any of the Securities of any series (or any
----------
Coupons appertaining thereto) are declared due and payable before the Stated
Maturity, then and in such event the holders of Senior Indebtedness shall be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all Senior Indebtedness or provision shall be made for such payment
in cash, before the Holders of the Securities of such series (or any Coupons
appertaining thereto) are entitled to receive any payment (including any payment
which may be payable by reason of the payment of any other indebtedness of the
Company being subordinated to the payment of the Securities of such series (or
any Coupons appertaining thereto)) by the Company on account of the principal of
(or premium, if any) or interest on the Securities of such series (or any
Coupons appertaining thereto) or on account of the
96
purchase or other acquisition of Securities of such series (or any Coupons
appertaining thereto).
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Securities of such series (or
any Coupons appertaining thereto) prohibited by the foregoing provisions of this
Section, and if such fact shall, at or prior to the time of such payment, have
been made known to the Trustee or, as the case may be, such Holder, then and in
such event such payment shall be paid over and delivered forthwith to the
Company.
The provisions of this Section shall not apply to any payment with respect
to which Article 16 and the terms of any convertible Securities of any series
set forth in an Officers' Certificate or established in one or more indentures
supplemental hereto in accordance with Section 2.1 would be applicable.
Section 15.4 No Payment When Senior Indebtedness in Default. In the event
----------------------------------------------
and during the continuation of any default by the Company in the payment of
principal, premium, interest or any other payment due on any Senior Indebtedness
of the Company, as the case may be, beyond any applicable grace period with
respect thereto, or in the event that the maturity of any Senior Indebtedness of
the Company, as the case may be, has been accelerated because of a default,
then, in any such case, no payment shall be made by the Company with respect to
the principal, premium, if any, or interest on the Securities of any series (or
any Coupons appertaining thereto) until such default is cured or waived or
ceases to exist or any such acceleration or demand for payment has been
rescinded.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 15.4, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
Section 15.5 Payment Permitted in Certain Situations. Nothing contained
---------------------------------------
in this Article 15 or elsewhere in the Indenture or in any of the Securities of
any series (or any Coupons appertaining thereto) shall prevent (a) the Company,
at any time except during the pendency of any dissolution, winding-up,
liquidation or reorganization of the Company, whether voluntary or involuntary
or any bankruptcy, insolvency, receivership or other proceedings of the Company
referred to in Section 15.2 or under the conditions described in Section 15.3 or
15.4, from making payments at any time of principal of, or premium, if any, or
interest on the Securities of such series, or (b) the application by the Trustee
of any money deposited with it hereunder to the payment of or on account of the
principal of, or premium, if any, or interest on the Securities of such series
(or any Coupons appertaining thereto) or the
97
retention of such payment by the Holders, if, at the time of such application by
the Trustee, it did not have knowledge that such payment would have been
prohibited by the provisions of this Article 15.
Section 15.6 Subrogation to Rights of Holders of Senior Indebtedness.
-------------------------------------------------------
Subject to the payment in full of all Senior Indebtedness or the provision for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Indebtedness, the rights of the Holders of Securities
of any series (or any Coupons appertaining thereto) shall be subrogated to the
extent of the payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article 15 (equally and ratably
with the holders of indebtedness of the Company which by its express terms is
subordinated to indebtedness of the Company to substantially the same extent as
the Securities of such series (or any Coupons appertaining thereto) are
subordinated to the Senior Indebtedness and is entitled to like rights of
subrogation) to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of (and premium, if any) and interest on
the Securities of such series (or any Coupons appertaining thereto) shall be
paid in full. For purposes of such subrogation, no payments or distributions to
the holders of the Senior Indebtedness of any cash, property or securities to
which the Holders of Securities of any series (or any Coupons appertaining
thereto) or the Trustee would be entitled except for the provisions of this
Article 15, and no payments over pursuant to the provisions of this Article 15
to or for the benefit of the holders of Senior Indebtedness by Holders of
Securities of such series (or any Coupons appertaining thereto) or the Trustee
shall, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of Securities of such series (or any Coupons
appertaining thereto), be deemed to be a payment or distribution by the Company
to or on account of the Senior Indebtedness.
Section 15.7 Provisions Solely to Define Relative Rights. The provisions
-------------------------------------------
of this Article 15 are and are intended solely for the purpose of defining the
relative rights of the Holders of Securities of any series (or any Coupons
appertaining thereto) on the one hand and the holders of Senior Indebtedness on
the other hand. Nothing contained in this Article 15 or elsewhere in the
Indenture or in the Securities of such series (or any Coupons appertaining
thereto) is intended to or shall (a) impair, as among the Company, its creditors
other than holders of Senior Indebtedness and the Holders of Securities of such
series (or any Coupons appertaining thereto), the obligation of the Company,
which is absolute and unconditional (and which, subject to the rights under this
Article 15 of the holders of Senior Indebtedness, is intended to rank equally
with all other general obligations of the Company), to pay to the Holders of
Securities of such series (or any Coupons appertaining thereto) the principal of
(and premium, if any) and interest on, the Securities of such series (or any
Coupons appertaining thereto) as and when the same shall become due and payable
in accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of Securities of such series (or any Coupons
appertaining thereto) and creditors of the Company, as the case may be, other
than the holders of Senior Indebtedness; or (c) prevent the Trustee or the
Holder of any Securities of such series (or any Coupons appertaining thereto)
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject
98
to the rights, if any, under this Article 15 of the holders of Senior
Indebtedness to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
Section 15.8 Trustee to Effectuate Subordination. Each Holder of
-----------------------------------
Securities of any series (or any Coupons appertaining thereto) by such Holder's
acceptance thereof authorizes and directs the Trustee on such Holder's behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article 15 and appoints the Trustee such Holder's
attorney-in-fact for any and all such purposes.
Section 15.9 No Waiver of Subordination Provisions. No right of any
-------------------------------------
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of Securities of any
series (or any Coupons appertaining thereto), without incurring responsibility
to the Holders of Securities of such series (or any Coupons appertaining
thereto) and without impairing or releasing the subordination provided in this
Article 15 or the obligations hereunder of the Holders of Securities of such
series (or any Coupons appertaining thereto) to the holders of Senior
Indebtedness do any one or more of the following: (a) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (b) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness; (c)
release any Person liable in any manner for the collection of Senior
Indebtedness, and (d) exercise or refrain from exercising any rights against the
Company and any other Person.
Section 15.10 Notice to Trustee. The Company shall give prompt written
-----------------
notice to a Responsible Officer of the Trustee of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in respect
of any Securities of any series (or any Coupons appertaining thereto) pursuant
to the provisions of this Article 15. Notwithstanding the provisions of this
Article 15 or any other provision of the Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of any Securities of any
series (or any Coupons appertaining thereto) pursuant to the provisions of this
Article 15, unless and until a Responsible Officer of the Trustee shall have
received written notice thereof from the Company or a holder or holders of
Senior Indebtedness or from any trustee therefor; and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Section 7.2,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall have not received the notice provided for in
this Section at least two Business Days prior to the date upon which by the
terms hereof any
99
money may become payable for any purpose (including, without limitation, the
payment of the principal of (or premium, if any) or interest on any Securities
of any series (or any Coupons appertaining thereto)), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such moneys and to apply the same to the purposes for which
they were received, and shall not be affected by any notice to the contrary that
may be received by it within two Business Days prior to such date.
Subject to the provisions of Section 7.2, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee therefor) to establish that
such notice has been given by a holder of Senior Indebtedness (or a trustee
therefor). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article 15, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article 15, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
Section 15.11 Reliance on Judicial Order or Certificate of Liquidating
--------------------------------------------------------
Agent. Upon any payment or distribution of assets of the Company referred to in
-----
this Article 15, the Trustee, subject to the provisions of Section 7.2, and the
Holders of Securities of any series (or any Coupons appertaining thereto) shall
be entitled to conclusively rely upon any order or decree entered by any court
of competent jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Securities of such series (or any Coupons appertaining thereto),
for the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, as the case may be, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 15.
Section 15.12 Trustee Not Fiduciary for Holders of Senior Indebtedness.
--------------------------------------------------------
With respect to the holders of Senior Indebtedness, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article 15, and no implied covenants or
obligations with respect to the holders of such Senior Indebtedness shall be
read into the Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness and shall not be
liable to any such holders or creditors if it shall in good faith pay over or
distribute to Holders of Securities of any series (or any Coupons appertaining
thereto) or to the Company or to any other Person cash, property or securities
to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article 15 or otherwise.
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Section 15.13 Rights of Trustee as Holder of Senior Indebtedness,
---------------------------------------------------
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
--------------------------------
be entitled to all the rights set forth in this Article 15 with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness and nothing in the Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article 15 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.6.
Section 15.14 Article Applicable to Paying Agents. In case at any time
-----------------------------------
any Paying Agent other than the Trustee shall have been appointed by the Company
and be then acting hereunder, the term `Trustee' as used in this Article 15
shall in such case (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this Article 15 in
addition to or in place of the Trustee: provided, however, that this Section
15.14 shall not apply to the Company or any Affiliate of the Company if it or
such Affiliate acts as Paying Agent.
Section 15.15 Certain Conversions Deemed Payment. For the purposes of
----------------------------------
this Article 15 only, (a) the issuance and delivery of junior securities (or
cash paid in lieu of fractional shares) upon conversion of Securities of any
series (or any Coupons appertaining thereto) in accordance with Article 16, or
pursuant to the terms set forth in an Officers' Certificate or established in
one or more indentures supplemental hereto in accordance with Section 2.1, shall
not be deemed to constitute a payment or distribution on account of the
principal of or premium or interest on Securities of such series (or any Coupons
appertaining thereto) or on account of the purchase or other acquisition of
Securities of such series (or any Coupons appertaining thereto), and (b) the
payment, issuance or delivery of cash, property or securities (other than Junior
Securities and cash paid in lieu of fractional shares) upon conversion of a
Securities of any series (or any Coupons appertaining thereto) shall be deemed
to constitute payment on account of the principal of such Securities of such
series (or any Coupons appertaining thereto). Nothing contained in this Article
15 or elsewhere in the Indenture or in the Securities of any series (or any
Coupons appertaining thereto) is intended to or shall impair, as among the
Company, its creditors other than holders of Senior Indebtedness and the Holders
of Securities of such series (or any Coupons appertaining thereto), the right,
which is absolute and unconditional, of the Holder of any Securities of such
series (or any Coupons appertaining thereto) to convert such Securities of such
series (or any Coupons appertaining thereto) in accordance with Article 16 and
the terms set forth in an Officers' Certificate or established in one or more
indentures supplemental hereto in accordance with Section 2.1.
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ARTICLE 16.
CONVERSION
Section 16.1 Applicability of Article. Securities of any series which are
------------------------
designated as being convertible into any other security of the Company prior to
their stated Maturity shall be convertible in accordance with their terms and
(except as otherwise specified pursuant to Section 2.1 for the Securities of
such series) in accordance with this Article.
Section 16.2 Conversion Privilege. A Holder of a Security of a series,
--------------------
which, by its terms, is convertible into any other security of the Company, may
convert such Security at any time during the period and in the manner as is set
forth in the terms of the Securities of that series. The number of shares or
units of such other security issuable upon conversion of a Security shall be
determined in the manner set forth in the terms of such Security.
Section 16.3 Conversion Procedure. To convert a Security, the Holder
--------------------
thereof must comply with and satisfy all of the terms, conditions and other
requirements set forth in the terms of such Security. As soon as practicable,
the Company shall deliver through the Conversion Agent a certificate for the
number of shares or units of the Security issuable upon the conversion.
Section 16.4 Fractional Shares. The terms of the Securities shall set
-----------------
forth whether the Company will issue a fractional share or units of a security
upon conversion of a Security or instead will deliver its check for the value of
the fractional share or units of a security.
Section 16.5 Taxes on Conversion. The terms of the Security shall state
-------------------
whether the Company will pay any documentary, stamp or similar issue or transfer
tax, due on the issue of shares or units of the security issuable and whether
upon the conversion the Holder will be required to pay any such tax which is due
because such shares or units are issued in a name other than that of such
Holder.
Section 16.6 Company to Provide Securities Issuable Upon Conversion. The
------------------------------------------------------
Company shall reserve or otherwise provide for a sufficient amount of its
respective securities which would be issuable upon the conversion of the
Securities, including reserving out of its respective authorized but unissued
equity securities or its equity securities held in treasury enough shares of
equity securities to permit the conversion of the Securities.
All shares of equity securities which may be issued upon conversion of the
Securities shall be fully paid and nonassessable.
The Company will endeavor to comply with all securities laws regulating the
offer and delivery of shares or units of its respective securities upon
conversion of Securities and will endeavor to list such shares or units on any
national securities exchange on which such shares or units are listed.
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Section 16.7 Adjustments. The terms of the Securities shall set forth the
-----------
nature of mechanics for and notice of any adjustments in the number or price of
securities of the Company issuable upon conversion of the Securities.
Section 16.8 Valuation. The terms of the Securities shall set forth the
---------
method or methods for valuing the securities of the Company issuable upon
conversion of the Securities.
Section 16.9 Reorganization of Company. The terms of the Securities shall
-------------------------
set forth the rights, if any, of the Holders to, convert their Securities in the
event that the Company is a party to a transaction subject to Article 11 or a
merger which reclassifies or changes its outstanding Securities into which the
Securities are convertible.
Section 16.10 Trustee's Disclaimer. The Trustee has no duty to determine
--------------------
when an adjustment under this Article or the terms of the Securities should be
made, how it should be made or what it should be. The Trustee makes no
representation as to the validity or value of any securities issued upon
conversion of Securities. The Trustee shall not be responsible for the failure
of the Company to comply with this Article. Each Conversion Agent other than
the Company shall have the same protection under this Section as the Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this Multiple Series
Indenture to be duly executed on the date or dates indicated in the
acknowledgements and as of the day and year first above written.
USX CORPORATION
By
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By
Name:
Title:
103
EXHIBIT A
FORMS OF CERTIFICATION
104
EXHIBIT A.1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
CERTIFICATE
USX CORPORATION
Insert title or sufficient description
of Securities to be delivered
This is to certify that the above-captioned Securities are not being
acquired by or for the account or benefit of a United States person or for offer
to resell or for resale to a United States person or any person who is within
the United States, or if a beneficial interest in the Securities is being
acquired by a United States person, that such United States person (i) is a
foreign branch of a United States financial institution (as defined in U.S.
Treas. Reg. section 1.165-12(c)(1)(v)) which has provided to the person from
which it purchased the obligation a certificate stating that it agrees to comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986 and the regulations thereunder (a `qualifying foreign
branch'), (ii) acquired such securities through a qualifying foreign branch and
is holding the obligation through such qualifying foreign branch or (iii) is a
financial institution holding for purposes of resale during the restricted
period (as defined in U.S. Treas. Reg. section 1.163-5(c)(2)(i)(D)(7)), which
financial institution has not acquired the obligation for the purposes of resale
directly or indirectly to a United States person or to a person who is within
the United States or its possessions. This is also to certify that the above-
referenced Securities are not being acquired by or for the account or benefit of
a `U.S. person,' as the term is defined in Regulation S under the United States
Securities ▇▇▇ ▇▇▇▇, as amended.
This Certificate excepts and does not relate to principal
amount of the above-captioned Securities held in the name of the undersigned as
to which the undersigned is not yet able to certify and as to which it
understands that exchange and delivery of definitive Securities and payment of
interest on a temporary global Security cannot be made until the undersigned is
able to so certify.
If the undersigned is a clearing organization, the undersigned has obtained
a similar certificate from its member organizations on which this certificate is
based; provided, however, that if the undersigned has actual knowledge that the
information contained in such a certificate is false, the undersigned will not
deliver a Security in temporary or definitive bearer form to the person who
signed such certificate notwithstanding the delivery of such certificate to the
undersigned.
As used herein, `United States person' means an individual who is a citizen
or resident of the United States, a corporation, partnership or other entity
created or organized in
105
or under the laws of the United States or any political subdivision thereof, or
an estate or trust the income of which is subject to United States Federal
income taxation regardless of its source; `United States' means the United
States of America (including the states and the District of Columbia); and
`possessions' of the United States include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island, and Northern Mariana Islands.
We undertake to advise you by telex if the above statement as to beneficial
ownership is not correct on the date of delivery of the above-captioned
Securities in bearer form as to all of such Securities.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceeding are commenced or threatened in connection with which this certificate
is or would be relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such proceedings.
Dated: , 19
To be dated on or after
, 19 (the date
determined as provided in the Indenture)
(Name of Person Entitled to
Receive Bearer Security
(Authorized Signatory)
Name:
Title:
106
EXHIBIT A.2
(FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR, CEDEL S.A. AND ANY OTHER
ENTITY PERFORMING SIMILAR FUNCTIONS IN CONNECTION WITH THE EXCHANGE OF A
PORTION OF A TEMPORARY GLOBAL SECURITY
CERTIFICATE
USX CORPORATION
Insert title or sufficient description
of Securities to be delivered
This is to certify with respect to $ principal amount of the above-
captioned Securities (i) that we have received from each of the persons
appearing in our records as persons entitled to a portion of such principal
amount (our `Qualified Account Holders') a certificate with respect to such
portion substantially in the form set out in Exhibit A.1 to the Indenture
relating to the above-captioned Securities, and (ii) that we are not submitting
herewith for exchange portion of the temporary global Security representing the
above-captioned Securities excepted in such certificates.
To the extent that we have knowledge that any of such certificates is false
and to the extent that we have not received with respect to any Securities such
certificates from Qualified Account Holders, we are not submitting for exchange
any portion of the temporary global Security attributable thereto.
We further certify that as of the date hereof we have not received an
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any portion of
the part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
We understand that this certificate is required in connection with certain
tax legislation in the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certificate is or
would be relevant, we irrevocably authorize you to produce this certificate or a
copy thereof to any interested party in such proceeding.
Date: , 19
To be dated no earlier than
the Exchange Date
, as
Operator of the Euro clear System
CEDEL S.A.
By
107
EXHIBIT A.3
FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR, CEDEL S.A. AND ANY OTHER ENTITY
PERFORMING SIMILAR FUNCTIONS TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
USX CORPORATION
Insert title or sufficient
description of Securities
We confirm that the interest payable on the Interest Payment Date on Insert
Date will be paid to each of the persons appearing in our records as being
entitled to interest payable on such (`Qualified Account Holders') from whom we
have received a written certification, dated not earlier than such Interest
Payment Date, substantially in the form set out in Exhibit A.4 to the Indenture
relating to the above-captioned Securities. We undertake to retain certificates
received from our member organizations in connection herewith for four years
from the end of the calendar year in which certificates are received.
To the extent that we have knowledge that any of such certificates is false
and to the extent that we have not received with respect to any Securities such
certificates from Qualified Account Holders, we are not requesting that payment
be made for interest with respect thereto.
We further certify that as of the date hereof we have not received any
notification for any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any interest
payment on any portion of the principal amount of the Securities referred to
above are no longer true and cannot be relied upon as of the date hereof.
We undertake that any interest received by us and not paid as provided
above SW b returned to the Trustee for the above Securities immediately prior to
the expiration of two years such Interest Payment Date in order to be repaid by
such Trustee to the above issuer at the end of years after such Interest Payment
Date.
Date: , 19
To be dated on or after the
relevant Interest Payment Date
, as
Operator of the Euro-clear System,
CEDEL S.A.
108
EXHIBIT A.4
FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS TO OBTAIN INTEREST PRIOR
TO AN EXCHANGE DATE
CERTIFICATE
USX CORPORATION
Insert title or sufficient description
of Securities
This is to certify that as of the Interest Payment Date on Insert Date
and except provided in the third paragraph hereof, none of the above-captioned
Securities held by you for our account was beneficially owned by a United States
person or if such Securities were, as of such date, beneficially owned by a
United States person, such United States person (i) was a foreign branch of a
United States financial institution (as defined in U.S. Treas. Reg. section
1.165-12(c)(1)(z)) which provided to the person from which it purchased the
obligation a certificate stating that it agrees to comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 19 and the
regulations thereunder (a `qualifying foreign branch'), (ii) acquired such
securities through qualifying foreign branch and was holding the obligation
through such qualifying foreign branch or (iii) was a financial institution
holding for purposes of resale during the restricted period (as defined U.S.
Treas. Reg. section 1.163-5(c)(2)(i)(D)(7), which financial institution did not
acquire the obligation for the purposes of resale directly or indirectly to a
United States person or to a person who is the United States or its possessions.
As used herein, `United States person' means an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or a
political subdivision thereof, or an estate or trust the income of which is
subject to United States Federal income taxation regardless of its source;
`United States' means the United States of America (including the states and the
District of Columbia); and `possessions' of the United States include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island, and Northern
Mariana Islands.
This certificate excepts and does not relate to U.S. $ principal
amount of the above-captioned Securities appearing in your books as being held
for our account as to which we are not yet able to certify and as to which we
understand interest cannot be credited unless and until we are able to so
certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
109
Date: , 19 Name of Person Entitled to
To be dated on or after Receive Interest
the 15th day before the
relevant Interest Payment Date
(Authorized Signature)
Name:
Title:
110
EXHIBIT A.5
FORM OF CONFIRMATION TO BE SENT TO PURCHASERS OF BEARER SECURITIES
By your purchase of the securities referred to in the accompanying
confirmation (the `Securities'):
You represent that you are not a United States person (as defined
below) other than (i) a foreign branch of a United States financial institution
(as defined in U.S. Treas. Reg. Section 1.165-12(c)(l)(v)) which has provided to
the person from which you purchased the obligation a certificate stating that
you agree to comply with the requirements of Section 165(i)(3)(A), (B) and (C)
of the Internal Revenue of 1986 and the regulations thereunder (a `qualifying
foreign branch'), (ii) a United States person who has acquired the Securities
through a qualifying foreign branch and is holding the Securities through such
qualifying foreign branch or (iii) a financial institution holding for purposes
of resale during the restricted period (as defined in U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(7), which financial institution has not acquired the
obligation for the purposes of resale directly or indirectly to a United States
Person or to a person who is within the United States or its possessions.
`U.S. person' means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof or an estate or
trust the income of which if subject to the United States Federal income
taxation regardless of its source; `United States' means the United States of
America (including the States and the District of Columbia); and the
`possessions' of the United States include Puerto Rico, the U.S. Virgin Islands,
Guam, American Somoa, Wake Island, and Northern Mariana Islands.
You also represent that the Securities are not being acquired by or
for the account or benefit of a `U.S. person', as that term is defined in
Regulation S under the United States Securities ▇▇▇ ▇▇▇▇, as amended.
If you are a dealer, (a) you also represent that you have not offered,
sold or delivered, and agree that you will not offer, sell, resell or deliver,
any of the Securities, directly or indirectly, in the United States or its
possessions or to any United States person other than a United States person
defined in (i), (ii) or (iii) above, or any U.S. person, and (b) you agree that
you will deliver to all purchasers of the Securities from you a written
statement in this form.