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Exhibit 4.1
TEXTRON FINANCIAL CORPORATION
AND
SUNTRUST BANK, ATLANTA,
TRUSTEE
INDENTURE
Dated as of December, 1999
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS 1 ...................................................... 1
SECTION 1.1 Certain Terms Defined.................................. 1
ARTICLE TWO
SECURITIES ........................................................ 7
SECTION 2.1 Forms Generally........................................ 7
SECTION 2.2 Form of Face of Security............................... 7
SECTION 2.3 Form of Reverse of Security............................ 10
SECTION 2.4 Form of Trustee's Certificate of Authentication........ 15
SECTION 2.5 Amount Unlimited; Issuable in Series................... 15
SECTION 2.6 Authentication and Delivery of Securities.............. 18
SECTION 2.7 Execution of Securities................................ 19
SECTION 2.8 Certificate of Authentication.......................... 19
SECTION 2.9 Denomination and Date of Securities; Payments of
Interest...................................................... 19
SECTION 2.10 Registration, Transfer and Exchange; Certain
Transfers and Exchanges....................................... 20
SECTION 2.11 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities.................................................... 21
SECTION 2.12 Cancellation of Securities Paid, etc.................. 22
SECTION 2.13 Temporary Securities.................................. 23
SECTION 2.14 Global Securities..................................... 23
ARTICLE THREE
COVENANTS OF THE ISSUER............................................. 25
SECTION 3.1 Payment of Principal and Interest...................... 25
SECTION 3.2 Offices for Payments, etc.............................. 25
SECTION 3.3 Paying Agents.......................................... 26
SECTION 3.4 Limitation on Liens.................................... 27
SECTION 3.5 Statement as to Compliance............................. 29
SECTION 3.6 Existence.............................................. 29
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT..... 31
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SECTION 4.1 Events of Default...................................... 31
SECTION 4.2 Payment of Securities on Default; Suit Therefor........ 33
SECTION 4.3 Application of Moneys Collected by Trustee............. 35
SECTION 4.4 Proceedings by Trustee................................. 36
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings.... 36
SECTION 4.6 Proceedings by Securityholders......................... 36
SECTION 4.7 Remedies Cumulative and Continuing..................... 37
SECTION 4.8 Control by Securityholders............................. 37
SECTION 4.9 Waiver of Past Defaults................................ 38
ARTICLE FIVE
CONCERNING THE TRUSTEE.............................................. 38
SECTION 5.1 Reliance on Documents, Opinions, etc.; No Requirement
for Expenditure of Own Funds.................................. 38
SECTION 5.2 No Responsibility for Recitals, etc.................... 40
SECTION 5.3 Trustee and Agents May Hold Securities................. 40
SECTION 5.4 Moneys to Be Held in Trust............................. 41
SECTION 5.5 Compensation and Expenses of Trustee................... 41
SECTION 5.6 Right of Trustee to Rely on Officers' Certificate, etc. 41
SECTION 5.7 Eligibility of Trustee................................. 42
SECTION 5.8 Resignation or Removal of Trustee; Appointment of
Successor Trustee............................................. 42
SECTION 5.9 Acceptance of Appointment by Successor Trustee......... 43
SECTION 5.10 Merger, Conversion, Consolidation or Succession to
Business of Trustee........................................... 44
SECTION 5.11 Reports by Trustee to Securityholders................. 44
SECTION 5.12 Compliance with Backup Withholding and Information
Reporting..................................................... 44
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS...................................... 45
SECTION 6.1 Action by Securityholders.............................. 45
SECTION 6.2 Proof of Execution by Securityholders.................. 46
SECTION 6.3 Holders to Be Treated as Owners........................ 46
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding...... 46
SECTION 6.5 Right of Revocation of Action Taken.................... 47
SECTION 6.6 Securityholders' Meetings; Purposes.................... 47
SECTION 6.7 Call of Meetings by Trustee............................ 48
SECTION 6.8 Call of Meetings by Issuer or Securityholders.......... 48
SECTION 6.9 Qualifications for Voting.............................. 48
SECTION 6.10 Quorum; Adjourned Meetings............................ 48
SECTION 6.11 Regulations........................................... 49
SECTION 6.12 Voting................................................ 49
SECTION 6.13 No Delay of Rights by Meeting......................... 50
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SECTION 6.14 Written Consent in Lieu of Meeting.................... 50
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES............................................. 50
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders............................................... 50
SECTION 7.2 Supplemental Indentures With Consent of
Securityholders............................................... 52
SECTION 7.3 Effect of Supplemental Indenture....................... 53
SECTION 7.4 Certain Documents to Be Given to Trustee............... 53
SECTION 7.5 Notation on Securities................................. 53
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE................... 54
SECTION 8.1 Issuer May Consolidate, etc., on Certain Terms......... 54
SECTION 8.2 Successor Person to Be Substituted..................... 54
SECTION 8.3 Opinion of Counsel and Officers' Certificate to Be
Given to Trustee.............................................. 55
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS........... 55
SECTION 9.1 Satisfaction and Discharge of Indenture................ 55
SECTION 9.2 Application by Trustee of Funds Deposited for Payment
of Securities................................................. 56
SECTION 9.3 Repayment of Moneys Held by Paying Agent............... 56
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years....................................... 56
ARTICLE TEN
REDEMPTION OF SECURITIES AND SINKING FUNDS.......................... 56
SECTION 10.1 Applicability of Article.............................. 56
SECTION 10.2 Notice of Redemption; Selection of Securities......... 56
SECTION 10.3 Payment of Securities Called for Redemption........... 57
SECTION 10.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption...................................... 58
SECTION 10.5 Mandatory and Optional Sinking Funds.................. 58
SECTION 10.6 Redemption for Tax Reasons............................ 61
ARTICLE ELEVEN
DEFEASANCE AND COVENANT DEFEASANCE.................................. 62
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SECTION 11.1 Applicability of Article; Issuer's Option to Effect
Defeasance or Covenant Defeasance............................. 62
SECTION 11.2 Defeasance and Discharge.............................. 62
SECTION 11.3 Covenant Defeasance................................... 62
SECTION 11.4 Conditions to Defeasance or Covenant Defeasance....... 63
SECTION 11.5 Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions.............. 64
ARTICLE TWELVE
MISCELLANEOUS PROVISIONS............................................ 65
SECTION 12.1 Incorporators, Stockholders, Officers and Directors
of Issuer Exempt from Individual Liability.................... 65
SECTION 12.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders................................... 65
SECTION 12.3 Successors and Assigns of Issuer Bound by Indenture... 65
SECTION 12.4 Notices and Demands on Issuer, Trustee and
Securityholders............................................... 65
SECTION 12.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein............................ 66
SECTION 12.6 Official Acts by Successor Entity..................... 67
SECTION 12.7 Payments Due on Saturdays, Sundays and Legal Holidays. 67
SECTION 12.8 New York Law to Govern................................ 67
SECTION 12.9 Counterparts.......................................... 67
SECTION 12.10 Effect of Headings................................... 67
SECTION 12.11 Conflict with Trust Indenture Act.................... 68
SECTION 12.12 Severability......................................... 68
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TEXTRON FINANCIAL CORPORATION
(the "Issuer")
AND
SUNTRUST BANK, ATLANTA
(the "Trustee")
INDENTURE
Dated as of December __, 1999
Reference is made to the following provisions of the Trust
Indenture Act of 1939, as amended, which establish certain duties and
responsibilities of the Issuer and the Trustee which are not set forth in this
Indenture:
Section Subject Section Subject
------- ------- ------- -------
310(b) Disqualification of 315(b) Notice of default from
Trustee for conflicting Trustee to Security-
interest holders
311 Preferential collection 315(c) Duties of Trustee in
of claims of Trustee as case of default
creditor of the Issuer
312(a) Periodic filing of 315(d) Provisions relating to
information by responsibility of
the Issuer with Trustee Trustee
312(b) Access of Security- 315(e) Assessment of costs
holders to information against litigating Securityholders in
certain circumstances
313(a) Annual report of Trustee 316(a) Directions and waivers
to Securityholders by Securityholders in certain
circumstances
313(b) Additional reports of 316(b) Prohibition of impair-
Trustee to Securityholders ment of right of
Securityholders to payment
314(a) Reports by the Issuer, 316(c) Right of the Issuer to
including annual set record date for
compliance certificate certain purposes
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Section Subject Section Subject
------- ------- ------- -------
314(c) Evidence of compliance 317(a) Special powers of
with conditions precedent Trustee
315(a) Duties of Trustee prior 318(a) Provisions of Act to
to default control in case of conflict
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THIS INDENTURE, dated as of December __, 1999 between Textron
Financial Corporation, a Delaware corporation (the "Issuer"), and SunTrust Bank,
Atlanta, a state banking corporation existing under the laws of the State of
Georgia (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture for the issuance from time to time of its unsecured
bonds, debentures, notes and other evidences of indebtedness to be issued in one
or more series (the "Securities") up to such principal amount or amounts and
denominated in United States dollars or foreign currency or units or composites
of two or more thereof as may from time to time be authorized in accordance with
the terms of this Indenture and to provide, among other things, for the
authentication, delivery and administration thereof, the Issuer has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture, when
executed and delivered by the parties hereto, a valid indenture and agreement
according to its terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders from
time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except
as herein otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture that are defined in the Trust Indenture Act of
1939, as amended to the date of this Indenture as originally executed, or the
definitions of which in the Securities Act of 1933, as amended to the date of
this Indenture as originally executed, are referred to in the Trust Indenture
Act of 1939 (except as herein otherwise expressly provided or unless the context
otherwise clearly requires), shall have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act as in force at the date of
this Indenture. The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture, as it may be amended from time to time,
as a whole and not to any particular Article, Section or other subdivision. The
terms defined in this Article have the meanings assigned to them in this Article
and include the plural as well as the singular.
"Additional Amounts" has the meaning set forth in Section 3.7.
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"Board of Directors" means either the Board of Directors of
the Issuer or any committee of such Board of Directors duly authorized to act
hereunder.
"Business Day" means, except as otherwise provided pursuant to
Section 2.5 for Securities of any series, any day that is not a Saturday or
Sunday and that is not a day on which banking institutions are generally
authorized or obligated by law to close in The City of New York or the city in
which the Corporate Trust Office is located.
"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 and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties on such
date.
"Consolidated Net Tangible Assets" means, as of any particular
time, the aggregate amount of assets after deducting therefrom (a) all current
liabilities (excluding any such liability that by its terms is extendable or
renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed) and (b) all
goodwill, excess of cost over assets acquired, patents, copyrights, trademarks,
tradenames and other like intangibles, all as shown in the Issuer's and its
subsidiaries' most recent consolidated financial statements prepared in
accordance with generally accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date as of which this
Indenture is dated, located at Corporate Trust Division, ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
"covenant defeasance" and "defeasance" have the meanings
assigned to such terms, respectively, by Sections 11.3 and 11.2.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee which are
capitalized in accordance with generally accepted accounting principles, (v) any
obligation of others of a type described in the preceding clauses (i), (ii),
(iii) or (iv) secured by a Lien on any asset of such Person, whether or not such
obligation is assumed by such Person, and (vi) all obligations of others of a
type described in the preceding clauses (i), (ii), (iii) or (iv) guaranteed by
such Person; provided that "Debt " of the Issuer or a Subsidiary shall not be
deemed to include Non-recourse Debt.
"Depositary" means, with respect to the Securities of any
series or tranche issuable or issued in the form of one or more Global
Securities, the person designated as Depositary for such Global Securities by
the Issuer pursuant to Section 2.5 until a successor Depositary shall
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have become such pursuant to the applicable provisions of this Indenture, and
thereafter "Depositary" shall mean or include each person who is then a
Depositary for such Global Securities, and if at any time there is more than one
person designated as Depositary for Global Securities of a particular series or
tranche, "Depositary", as used with respect to the Securities of such series or
tranche, means the Depositary with respect to the particular Global Security or
Securities.
"Event of Default" means any event or condition specified as
such in Section 4.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Global Security" means a Security evidencing all or a part of
a series or tranche of Securities, issued to the Depositary for such series or
tranche, as the case may be, in accordance with Section 2.5 and bearing the
legend prescribed in Section 2.14.
"holder" "holder of Securities", "Securityholder" or other
similar terms mean the registered holder of any Security.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended
and/or supplemented from time to time, and shall include (i) for all purposes of
this instrument and any supplemental indenture, the provisions of the Trust
Indenture Act of 1939 that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively, and (ii) the forms and terms
of particular series of Securities established as contemplated hereunder.
"interest" means, when used with respect to a non-interest
bearing Security, interest payable after the principal thereof has become due
and payable whether at maturity, by declaration of acceleration, by call for
redemption, pursuant to a sinking fund or otherwise.
"Issuer" means Textron Financial Corporation, a Delaware
corporation, until any successor Person shall have become such pursuant to
Article Eight and thereafter "Issuer" shall mean such successor except as
otherwise provided in Section 8.2.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest, hypothecation or encumbrance of any kind in
respect of such asset, provided that, "Lien" shall not mean security interests
under Article 9 of the Uniform Commercial Code, or any successor to such
Article, in respect of sales of accounts or chattel paper. For the purposes of
the Securities, the Issuer or any Subsidiary shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
"mandatory sinking fund payments" has the meaning set forth in
Section 10.5.
"Market Exchange Rate" has the meaning set forth in Section
6.1.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. or any
successor thereto.
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"New York Location" means the location in the Borough of
Manhattan, The City of New York, State of New York, at which at any particular
time the Trustee receives and redelivers securities, which location at the date
of execution of this Indenture is SunTrust Bank, Atlanta, c/▇ ▇▇▇▇▇▇ Trust
Company of New York, Wall Street Plaza, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Non-recourse Debt" of the Issuer or a Subsidiary means any
obligations for borrowed money of the Issuer or a Subsidiary secured by specific
assets which obligations, in accordance with generally accepted accounting
principles, are not reflected in the balance sheet of the Issuer or a Subsidiary
and are issued pursuant to or evidenced by an instrument which limits the
recourse against the obligor thereunder to such specific assets, and (in the
case of all Non-recourse Debt incurred after the date of this Indenture), if
under applicable law in respect of such obligations, such assets or such
obligor, at the time any such obligation is created, a holder of such obligation
could ever become entitled to recourse against the obligor pursuant to
Section 1111(b) of the Bankruptcy Reform Act of 1978 (11 U.S.C. Section 1111(b),
or any successor section thereto) or any other provisions of any bankruptcy,
insolvency or other law of any jurisdiction, such instrument also contains a
provision to the effect that such holder's recourse claim in respect of such
obligation shall be and remain in all respects subordinate and junior to all
Debt evidenced by the Securities of any series and such holder shall not be
entitled to receive any payment, under any condition, in respect of any
obligation, other than the proceeds of such specific assets, until all
Securities of any series shall have been paid in full or funds for their payment
shall have been duly and sufficiently provided.
"Officers' Certificate" when used with respect to the Issuer,
means a certificate signed by the chairman of the Board of Directors, the
president or any vice president and by the chief financial officer, treasurer,
controller, the secretary or any assistant secretary of the Issuer and delivered
to the Trustee. Each such certificate shall include the statements required by
the Trust Indenture Act of 1939, or as provided for in Section 12.5, if and to
the extent required hereby.
"Opinion of Counsel" means an opinion, in writing, signed by
legal counsel who may be an employee of or counsel to the Issuer and who shall
be reasonably satisfactory to the Trustee. Each such opinion shall include the
statements required by the Trust Indenture Act of 1939 or as provided for in
Section 12.5, if and to the extent required hereby.
"optional sinking fund payment" has the meaning set forth in
Section 10.5.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon redemption or a declaration of acceleration of the maturity thereof
pursuant to Section 4.1.
"Outstanding" (except as otherwise required by the Trust
Indenture Act of 1939), when used with reference to Securities, shall, subject
to the provisions of Section 6.4, mean, as of any particular time, all
Securities theretofore authenticated and delivered by the Trustee under this
Indenture, except:
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(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for which moneys and/or
U.S. Government Obligations for the payment thereof in the necessary
amount shall have been theretofore deposited in trust with the Trustee
or with any paying agent (other than the Issuer) or shall have been set
aside, segregated and held in trust by the Issuer for the holders of
such Securities (if the Issuer shall act as its own paying agent); and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.11, or which shall have been paid pursuant to
Section 2.11.
In determining whether the holders of the requisite principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, 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 4.1.
"Overdue Rate" means, unless otherwise specified in the
Securities of any series, the same rate as the rate of interest specified in the
Securities of such series or, in the case of a series of Original Issue Discount
Securities, the Yield to Maturity of such series of Securities.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"principal", whenever used with reference to the Securities or
any Security or any portion thereof, shall be deemed to include any premium
that may be payable thereon pursuant to the terms thereof.
"record date" has the meaning set forth in Section 2.9.
"Register" has the meaning set forth in Section 2.10
"Resolution" means a resolution of the Board of Directors,
including without limitation, any such resolution by which or pursuant to which
any series of Securities is authorized and established pursuant to Section 2.5
hereof.
"Responsible Officer", when used with respect to the Trustee,
means any vice president, the treasurer, any senior trust officer, trust
officer, any assistant trust officer, any assistant treasurer, or any other
officer or assistant officer of the Trustee who in each case is working with the
Trustee's corporate trust department at its Corporate Trust Office, or to whom
any corporate trust matter is referred because of his or her knowledge of, and
familiarity with, the particular subject.
"S&P" shall mean Standard & Poor's Corporation or any
successor thereto.
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"Security Registrar" has the meaning set forth in Section
2.10.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" or "Securities" (except as otherwise required by
the Trust Indenture Act of 1939) has the meaning stated in the first recital of
this Indenture or means any Security or Securities issued, authenticated and
delivered under this Indenture, as the context may require.
"Specified Currency" has the meaning set forth in Section 6.1.
"Subsidiary" means any entity of which at least a majority of
the outstanding stock or other ownership interests having, by the terms thereof,
ordinary voting power for the election of directors, managers or trustees of
such entity or other persons performing similar functions (irrespective of
whether or not at the time stock or other ownership interests of any other class
or classes of such entity shall have or might have voting power by reason of the
happening any contingency) is at the time directly or indirectly owned or
controlled by the Issuer, or by one or more other Subsidiaries, or by the Issuer
and one or more other Subsidiaries.
"Support Agreement" means the Support Agreement dated as of
May 25, 1994 between the Issuer and Textron.
"Taxes" has the meaning set forth in Section 3.7.
"Tax Redemption Date" has the meaning set forth in Section
10.6.
"Textron" shall mean Textron Inc., a Delaware corporation or
any successor thereto.
"Trustee" means the Person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article Five, shall
also include any successor trustee. If, pursuant to the provisions of this
Indenture, there shall be at any time more than one Trustee hereunder, the term
"Trustee" as used with respect to Securities of any series shall mean the
Trustee or Trustees with respect to the Securities of that series.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 7.1 and 7.2) means the Trust Indenture Act of 1939, as amended, and in
force at the date as of which this Indenture was originally executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act of 1939" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"United States alien" has the meaning set forth in Section
3.7.
"U.S. Government Obligations" has the meaning set forth in
Section 11.4.
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"vice president", when used with respect to the Issuer or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title of "vice president".
"Yield to Maturity" means, in the case of any Original Issue
Discount Security, the yield to maturity specified in such Security or in a
Resolution relating thereto.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series
shall be substantially in the form set forth in this Article Two, or in such
other form as shall be established by or in an Officers' Certificate pursuant to
a 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 which may have imprinted or
otherwise reproduced thereon such letters, numbers or other marks of
identification and such legends or endorsements as may be required to comply
with any applicable law, rule or regulation or with the rules of any securities
exchange or as may, consistent with the provisions of this Indenture, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.2 Form of Face of Security. [If the Security is an
Original Issue Discount Security, insert any legend required by the Internal
Revenue Code of 1986, as amended and the regulations thereunder.]
No.
TEXTRON FINANCIAL CORPORATION
[Insert Designation of Series]
Textron Financial Corporation, a corporation duly organized
and existing under the laws of the State of Delaware (herein called the
"Issuer"), for value received hereby promises to pay to
________________________, or its registered assigns, the principal sum of
___________________ on ___________________ [if the Security is to bear interest
prior to maturity, insert--, and to pay interest thereon [[insert as
applicable--annually or semi-annually or quarterly]] on [[insert appropriate
interest payment dates]] (the "Interest Payment Dates") in each year, commencing
_________, [insert -- at the rate of ___% per annum or, if applicable, insert
the method for determining the adjustable, floating or other form of variable
interest rate borne by the Securities] until the principal hereof is paid or
made available for payment [if applicable, insert --,
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and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of ___% per annum on any overdue principal and premium,
if any, and on any overdue installment of interest]. This Security shall bear
interest from the most recent Interest Payment Date to which interest in respect
hereof has been paid or duly provided for, unless no interest has been paid on
this Security, in which case from __________. Any interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, subject
to certain exceptions provided in the Indenture referred to on the reverse
hereof, be paid to the Person in whose name this Security is registered at the
close of business on the __________ or __________ (whether or not a Business
Day) (the "Record Date") next preceding such Interest Payment Date; provided,
however, that the first payment of interest on this Security, if originally
issued between a Record Date and the related Interest Payment Date, shall be
made on the second Interest Payment Date following the date of original issuance
of this Security to the Person in whose name this Security is registered on the
Record Date relating to such second Interest Payment Date.]
[If the Security is not to bear interest prior to maturity,
insert--The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption, or
at maturity and in such case the overdue principal of this Security shall bear
interest at the rate of __% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of __% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
[If applicable, insert - All payments in respect of the
Securities of the series of which this Security is a part, including, without
limitation, payments of principal, [if the Security is to bear interest prior to
maturity, insert -- interest, if any,] and premium, if any, shall be made by the
Issuer without withholding or deduction for or on account of any present or
future taxes, duties, levies, or other governmental charges of whatever nature
in effect on the date of the original issuance of this Security or imposed or
established in the future by or on behalf of the United States or any authority
in the United States ("Taxes"). In the event any such Taxes are so imposed or
established, the Issuer shall pay such Additional Amounts ("Additional Amounts")
as may be necessary in order that the net amounts receivable by each holder of
this Security who is a United States alien (as defined below) after any payment,
withholding or deduction in respect of such Taxes shall equal the respective
amounts of principal [if the Security, if any, is to bear interest prior to
maturity, insert --, interest, if any,] and premium, if any, which would have
been receivable in respect of the Securities of this series in the absence of
such payment, withholding or deduction; provided that no such Additional Amounts
will be payable with respect to any payment on any Security of this series to,
or to a third party on behalf of, a holder who is a United States alien for or
on account of any such Taxes whatever that have been imposed with respect to (1)
any Tax which would not have been so imposed but for (a) the existence of any
present or former connection between the holder (or a fiduciary, settlor,
beneficiary, member, shareholder, or holder of a power over, the holder, if the
holder is an estate, trust, partnership or corporation) and the United States,
including, without limitation, such holder (or such fiduciary, settlor,
beneficiary,
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16
member, shareholder of, or holder of a power) being or having been a citizen or
resident or treated as a resident thereof or being or having been engaged in a
trade or business therein or being or having been present therein or having or
having had a permanent establishment therein, or (b) the holder's present or
former status as a personal holding company or foreign personal holding company
or controlled foreign corporation or passive foreign investment company for
United States federal income tax purposes or as a corporation which accumulates
earnings to avoid United States federal income tax or as a private foundation or
other tax-exempt organization; (2) any Tax which would not have been so imposed
but for the presentation by the holder of the Security of this series for
payment on a date more than 10 days after the date on which the payment became
due and payable or the date on which payment thereof is duly provided for,
whichever occurs later; (3) any estate, inheritance, gift, sales, transfer,
personal property or excise tax or any similar tax, assessment or governmental
charge; (4) any Tax which is payable otherwise than by withholding from payments
in respect of principal of, any premium, or any interest on any Security of this
series; (5) any Tax imposed on interest received by a holder or beneficial owner
of a Security of this series who actually or constructively owns 10% or more of
the total combined voting power of all classes of the Issuer's stock entitled to
vote or is a bank that acquired a Security of this series in consideration of an
extension of credit made pursuant to a loan agreement entered into in the
ordinary course of business; (6) any Tax imposed as a result of the failure to
comply with (a) certification, information, documentation, reporting or other
similar requirements concerning the nationality, residence, identity or
connection with the United States of the holder or beneficial owner of the
Security of this series, if such compliance is required by statute, or by
regulation of the United States Treasury Department, as a precondition to relief
or exemption from such Tax (including backup withholding tax) or (b) any other
certification, information, documentation, reporting or other similar
requirements under United States income tax laws or regulations that would
establish entitlement to otherwise applicable relief or exemption from such tax,
assessment or other governmental charge; (7) any tax, assessment or other
governmental charge required to be withheld by any paying agent from any payment
of the principal of, any premium or any interest on any Security of this series,
if the payment can be made without such withholding by at least one other paying
agent; or (8) any combination of items (1), (2), (3), (4), (5), (6) or (7).
Furthermore, no Additional Amounts shall be paid with respect to any payment on
any Security of this series to a holder who is a United States alien that is a
fiduciary or partnership or other than the sole beneficial owner of such payment
to the extent that a beneficiary or settlor with respect to such fiduciary or a
member of such partnership or beneficial owner would not have been entitled to
receive the Additional Amounts had such beneficiary, settlor, member or
beneficial owner been the holder of any Security of this series. The term
"United States alien" means any person who, for United States federal income tax
purposes, is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership, one or more of the members of which is a foreign corporation, a
non-resident alien individual or a non-resident alien fiduciary of a foreign
estate or trust.
Whenever in this Security or in the Indenture there is a
reference, in any context, to the payment of the principal of [if the Security
is to bear interest prior to maturity, insert -- or interest, if any, on], or in
respect of, any Security, such payment shall be deemed to include the payment of
Additional Amounts to the extent that, in such context, Additional Amounts are,
were
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17
or would be payable in respect of such payment pursuant to the provisions hereof
or thereof and express mention of the payment of Additional Amounts (if
applicable) in any provision hereof or thereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
mention is not made.]
Payment of the principal of, premium if any, and [if
applicable, insert--any such] interest on this Security will be made at the
office or agency of the Issuer maintained for that purpose in [insert--the
places of payment], [insert -- the currency or currencies of payment]; provided,
however, that at the option of the Issuer payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security register; [if applicable, insert--provided, however, that
a holder of U.S.$10,000,000 or more in aggregate principal amount of Securities
of this series will be entitled to receive interest payments on each Interest
Payment Date by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received in writing by the Trustee not less than
15 calendar days prior to such Interest Payment Date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked by
such holder by written notice received by the Trustee at least 15 calender days
prior to the first Interest Payment Date for which such notice shall be
effective.]
[If the Security is an extendible security, insert--The
Securities of this series are subject to repayment on [insert provisions with
respect to repayment date or dates] at the option of the holders thereof
exercisable on or before the __________, but not prior to the _________
preceding such ______________, at a repayment price equal to the principal
amount thereof to be repaid, together with interest payable thereon to the
repayment date, as described on the reverse side hereof.]
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed as of the date first written above.
Dated:
TEXTRON FINANCIAL CORPORATION
By:_____________________________________
Name:___________________________________
Duly Authorized
SECTION 2.3 Form of Reverse of Security.
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18
TEXTRON FINANCIAL CORPORATION
This Security is one of a duly authorized issue of securities
of the Issuer (herein called the "Securities"), issued and to be issued in one
or more series under an indenture, dated as of [______ __], 1999, as it may be
amended or supplemented from time to time (herein called the "Indenture"),
between the Issuer and SunTrust Bank, Atlanta, as Trustee (herein called the
"Trustee"), to which Indenture and all indentures supplemental thereto,
reference is hereby made for a statement of the respective rights, limitations
of rights, obligations, duties and immunities thereunder of the Issuer, the
Trustee and the holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [if applicable, insert--limited in
aggregate principal amount to __________]. The separate series of Securities may
be issued in various aggregate principal amounts, may mature at different times,
may bear interest, if any, at different rates, may be subject to different
redemption provisions (if any), may be subject to different sinking or purchase
funds (if any), may be subject to different repayment provisions (if any), may
be subject to different covenants and Events of Default and may otherwise vary
as provided in the Indenture. The Indenture further provides that the Securities
of a single series may be issued at various times, with different maturity
dates, may bear interest, if any, at different rates, may be subject to
different redemption provisions (if any), may be subject to different sinking or
purchase funds (if any) and may be subject to different repayment provisions (if
any).
[If applicable, insert--The Securities of this series may not
be redeemed prior to maturity.]
[If applicable, insert -- If at any time subsequent to the
issuance of the Securities of this series, as a result of any change in, or
amendment to, the laws, including any regulations or rulings promulgated
thereunder, of the United States or of any political subdivision thereof or any
authority therein or thereof having power to tax or as a result of any change in
the application or official interpretation of such laws, including any proposals
for change, amendment or application or interpretation of such laws, where the
amendment or change becomes effective on or after the date on which the
underwriting, subscription, distribution, or similar agreement (an "Issuance
Agreement") is executed for the Securities of this series or if no such Issuance
Agreement is executed, the date on which the Securities of this series are first
offered for sale, or which proposal is made after such date, or as a result of
any action taken by any taxing authority of the United States which action is
taken or becomes generally known after such date, or any commencement of a
proceeding in a court of competent jurisdiction in the United States after such
date, whether or not such action was taken or such proceeding was brought with
respect to the Issuer, the Issuer becomes, or will become, obligated to pay any
Additional Amounts, then the Securities of this series will be redeemable as a
whole (but not in part), at the option of the Issuer, at any time upon not less
than thirty (30) nor more than sixty (60) days' notice given to the holders at
their principal amount [if the Security is to bear interest prior to maturity,
insert -- together with accrued interest thereon, if any,] [if the Security is
an Original Issue Discount Security, --(calculated as provided in the
Indenture).] (and any Additional Amounts payable with respect thereto) to the
date fixed for redemption (the "Tax Redemption Date"). In order to effect a
redemption of Securities of this series as described in this paragraph, the
Issuer shall deliver to the Trustee at least forty-five (45) days prior to the
Tax Redemption Date: (i) a written notice stating that the Securities of this
series are to be redeemed as a whole, specifying the redemption date and other
pertinent information and (ii) an Opinion of Counsel to the effect that the
Issuer has or will become obligated to pay Additional Amounts as a result of any
such
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19
change or amendment. No notice of redemption may be given earlier than ninety
(90) days prior to the earliest date on which the Issuer would be obligated to
pay such Additional Amounts were a payment in respect of the Securities of this
series then due. The notice shall additionally specify the Tax Redemption Date
and all other information necessary to the publication and mailing by the
Trustee of notices of such redemption. The Trustee shall be entitled to rely
conclusively upon the information so furnished by the Issuer in such notice and
shall be under no duty to check the accuracy or completeness thereof. Such
notice shall be irrevocable and upon its delivery the Issuer shall be obligated
to make the payment or payments referred to therein to the Trustee.]
[If applicable, insert--The Securities of this series are
subject to redemption upon not less than 30 nor more than 60 days' notice by
mail, [[if applicable, insert --(1) on ________ in any year commencing with the
year ________ and ending with the year ________ through operation of the sinking
fund for this series (as more fully described in the next succeeding paragraph)
at [[insert either--a redemption price equal to 100% of the principal amount of
the Securities to be redeemed or the redemption prices for redemption through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below,]], and (2)]) at any time [[if applicable,
insert--on or after __________]], as a whole or in part, at the election of the
Issuer, at the [[insert either--following redemption prices or redemption prices
for redemption otherwise than through operation of the sinking fund]] (expressed
as percentages of the principal amount): if redeemed [[if applicable, insert--on
or before ________, __%, and if redeemed]] during the 12-month period beginning
_________ of the years indicated,
[[If applicable,
Redemption Price insert - -
For Redemption Redemption Price
[[If applicable, For Redemption
insert - - Otherwise Than
Through Operation of the Through Operation of the
Year Sinking Fund]] Sinking Fund]]
and thereafter at a redemption price equal to ___% of the principal amount
thereof, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the date fixed for
redemption, but interest installments maturing on or prior to such redemption
date will be payable to the holders of such Securities of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[(If applicable, insert--The sinking fund for this series
provides for the redemption on _____ in each year beginning with the year _____
and ending with the year _____ of [[not less than]] $_____ [[("mandatory sinking
fund payments") and not more than $____]] aggregate principal amount of
Securities of this series.] [(If applicable, insert -- Securities of this series
acquired or redeemed by the Issuer otherwise than through [[mandatory]] sinking
fund payments
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may be credited against subsequent [[mandatory])] sinking fund payments
otherwise required to be made.]
[(If applicable, insert--Notwithstanding the foregoing, the
Issuer may not, prior to _____ redeem any Securities of this series as
contemplated by [[Clause (2) of]] the preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Issuer (calculated
in accordance with generally accepted accounting principles) of less than __%
per annum.]
[(If applicable, insert--Partial redemptions must be in an
amount not less than $__________ principal amount of Securities.]
[(If applicable, insert--In the event of redemption of this
Security in part only, a new Security or Securities of this series for the
unredeemed portion hereof having the same interest rate and maturity as this
Security will be issued in the name of the holder hereof upon the cancellation
hereof.)]
[If the Security is not an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, then the Trustee or the holders of not less than 25% in
aggregate principal amount (calculated as provided in the Indenture) of the
Securities of this series then Outstanding may declare the principal of the
Securities of this series and accrued interest thereon, if any, to be due and
payable in the manner and with the effect provided in the Indenture.] [If the
Security is an Original Issue Discount Security, insert--If an Event of Default
with respect to Securities of this series shall occur and be continuing, then
the Trustee or the holders of not less than 25% in aggregate principal amount
(calculated as provided in the Indenture) of the Securities of this series then
Outstanding may declare an amount of principal of the Securities of this series
due and payable in the manner and with the effect provided in the Indenture.
Such amount shall be equal to [[insert formula for determining the amount]].]
[(If the Security is an extendible security, insert--The
Securities of this series are subject to repayment in whole, or in part, on
[insert month, day and years], in increments of __________ or multiples of
__________ in excess of __________, provided that the portion of the principal
amount of any Security of this series not being repaid shall be at least
__________, at the option of the holder thereof at a repayment price equal to
the principal amount thereof to be repaid, together with interest payable
thereon, if any, to the repayment date. For this Security to be repaid at the
option of the holder, the Trustee must receive at the Corporate Trust Office or
the New York Location, on or before the [insert month and day] or, if such
[insert month and day] is not [insert --a day other than a day on which banking
institutions in the Borough of Manhattan, The City and State of New York are
authorized or required by law or regulation to close or, if applicable, insert
appropriate definition] (a "Business Day"), the next succeeding Business Day,
but not earlier than the (insert month and day) prior to the (insert month and
day) on which the repayment price will be paid (i) this Security, with the form
entitled "Option to Elect Repayment" below duly completed, or (ii) a telegram,
telex, facsimile transmission or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or trust company in the United States of America setting forth the name of
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21
the holder of the Security, the principal amount of the Security, the amount of
such Security to be repaid, a statement that the option to elect repayment is
being made thereby and a guarantee that the Security to be repaid with the form
entitled "Option to Elect Repayment" on the reverse thereof duly completed will
be received by the Issuer no later than five Business Days after the date of
such telegram, telex, facsimile transmission or letter, and such Security and
form duly completed are received by the Issuer by such fifth Business Day.
Either form of notice duly received on or before the [insert month and day]
preceding any such [insert month and day] shall be irrevocable. All questions as
to the validity, eligibility (including time of receipt) and acceptance of any
Securities of this series for repayment will be determined by the Issuer, whose
determination shall be final and binding.]
The Indenture permits, with certain exceptions as therein
provided, the amendment or supplementing thereof and the modification of the
rights and obligations of the Issuer and the rights of the holders of the
Securities of each series to be affected under the Indenture at any time by the
Issuer and the Trustee with the consent of the holders of not less than a
majority in aggregate principal amount (calculated as provided in the Indenture)
of the Securities at the time Outstanding of all series to be affected (all such
series voting as a single class). The Indenture also contains provisions
permitting the holders of not less than a majority in aggregate principal amount
(calculated as provided in the Indenture) of the Securities of each series at
the time Outstanding, on behalf of the holders of all Securities of such series,
to waive certain past defaults or Events of Default under the Indenture and the
consequences of any such defaults or Events of Default. Any such consent or
waiver by the holder of this Security (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and upon all future
holders of this Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest, if
any, on this Security at the times, place and rate, if any, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security register, upon due presentment of this Security for registration of
transfer at the office or agency of the Issuer in any place where the principal
of and interest, if any, on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Security Registrar duly executed by the holder hereof or his or
her attorney duly authorized in writing, and thereupon one or more new
Securities of this series, having the same interest rate, if any, and maturity
and bearing interest from the same date as this Security, of any authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of ________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series of a different authorized
denomination
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having the same interest rate, if any, and maturity and bearing interest from
the same date as such Securities, as requested by the holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue and notwithstanding
any notation of ownership or other writing thereon, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary. All
payments made to or upon the order of such registered holder, shall, to the
extent of the sum or sums paid, effectually satisfy and discharge liability for
monies payable on this Security.
No recourse for the payment of the principal of or interest,
if any, on this Security, or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Issuer in the Indenture or any indenture supplemental thereto or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, official or director, as
such, past, present or future, of the Issuer or of any successor entity, either
directly or through the Issuer or any successor entity, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
All terms used in this Security and not otherwise defined
herein which are defined in the Indenture shall have the meanings assigned to
them in the Indenture.
This Security shall be governed by and construed in accordance
with the laws of the State of New York, without regard to conflict of law
principles.
SECTION 2.4 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
SUNTRUST BANK, ATLANTA
--------------------------,
as Trustee
By:______________________________________
Authorized Officer
SECTION 2.5 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
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The Securities may be issued in one or more series. There
shall be established in or in an Officers' Certificate pursuant to a Resolution,
a copy of which, certified by the secretary or an assistant secretary of the
Issuer, shall be delivered to the Trustee or established in one or more
indentures supplemental hereto, prior to the issuance of securities of a
particular series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 2.10, 2.11, 2.13 or 10.3);
(3) the date or dates on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method or methods, if any, by which such
rate or rates (including the Overdue Rate) shall be determined, the date or
dates from which such interest shall accrue or the method or methods, if any, by
which such date or dates may be determined, the interest payment dates on which
such interest shall be payable and the record dates for the determination of
holders to whom interest is payable, and the basis upon which interest on
Securities of the series shall be calculated if other than that of a 360-day
year of twelve 30-day months;
(5) if in addition to or other than The Borough of Manhattan,
The City of New York, the place or places where the principal and interest with
respect to the Securities of the series shall be payable, any of such
Securities may be surrendered for registration of transfer or exchange, any of
such Securities may be surrendered for exchange and notices or demands to or
upon the Issuer in respect of the Securities of the series and this Indenture
may be served;
(6) the price or prices at which, the period or periods within
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 Issuer, pursuant to any
sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase
or repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and the price or prices at
which, the period or periods within which and the terms and conditions upon
which Securities of the series shall be redeemed, purchased or repaid, in whole
or in part, pursuant to such obligation;
(8) whether and under what circumstances the Issuer will be
obligated to pay Additional Amounts in respect of the Securities of the series
as provided in Section 3.7 and, as a result, whether the Securities of the
series will be subject to redemption as provided in Section 10.6;
(9) if other than such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency
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(including composite currencies or currency units) in which the Securities of
the series shall be denominated and, if different, the coin or currency
(including composite currencies or currency units) in which payment of the
principal of and/or interest on the Securities of the series shall be payable;
(10) if the principal of and/or interest on the Securities of
the series are to be payable, at the election of the Issuer or a holder thereof,
in a coin or currency (including composite currencies or currency units) other
than that in which the Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such election may
be made;
(11) whether the amount of payments of principal of and/or
interest on the Securities of the series may be determined with reference to an
index, formula or other method or methods (which index, formula or method or
methods may be based, without limitation, on one or more currencies (including
composite currencies or currency units), commodities, equity securities, equity
indices or other indices), and, if so, the terms and conditions upon which and
the manner in which such amounts shall be determined;
(12) if other than denominations of U.S.$1,000 (or if the
Securities are denominated in a currency other than U.S. dollars or in a
composite currency or currency units , 1,000 units of such other currency or
composite currency or currency units) and any multiple thereof, the
denominations in which Securities of the series shall be issuable;
(13) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 4.1 or
provable in bankruptcy pursuant to Section 4.2;
(14) if the Securities of the series are Original Issue
Discount Securities, the price at which and the date on which Securities of the
series are to be issued and the Yield to Maturity at the time of issuance of
such series;
(15) if the Securities of the series are to be issued in the
form of one or more Global Securities, the name of the Depositary for such
Global Security or Securities or the nominee of such Depositary; and
(16) any other terms of the series which are not inconsistent
with this Indenture.
All Securities of any one series shall be substantially
identical except as to denomination, interest rate, if any, and maturity and
except as may otherwise be provided in or pursuant to such Resolution or in any
such indenture supplemental hereto. The applicable Resolution or the applicable
supplemental indenture may provide that Securities of any particular series may
be issued at various times, with different maturities and redemption and
repayment provisions (if any) and bearing interest (if any) at different rates,
but shall for all purposes under this Indenture, including, but not limited to,
voting and Events of Default, be treated as Securities of a single series.
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Except as otherwise specified pursuant to this Section 2.5 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 2.6 Authentication and Delivery of Securities. At any
time and from time to time after the execution and delivery of this Indenture,
the Issuer may deliver Securities of any series executed by the Issuer to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver such Securities to or upon the written order of the Issuer, signed by
both (a) the chairman of its Board of Directors, the president or any vice
president and (b) its chief financial officer, treasurer, controller, secretary
or any assistant secretary, without any further action by the Issuer. 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 the requirements of the Trust Indenture Act
of 1939) shall be fully protected in relying upon:
(1) a copy of any Resolution or Resolutions relating to such
series, certified by the secretary or an assistant secretary of the
Issuer;
(2) an executed supplemental indenture, if any, relating
thereto;
(3) an Officers' Certificate or executed supplemental
indenture setting forth the form and terms of the Securities as
required pursuant to Sections 2.1 and 2.5, respectively, and prepared
in accordance with the requirements of the Trust Indenture Act of 1939
and Section 12.5; and
(4) an Opinion of Counsel, prepared in accordance with the
requirements of the Trust Indenture Act of 1939 and Section 12.5, which
shall state that, if the form of such Securities has been established
by or pursuant to a Resolution as permitted by Section 2.1, that such
form or forms, as the case may be, have been established in conformity
with the provisions of this Indenture, and that the terms of such
Securities have been established by or pursuant to a Resolution as
permitted by Section 2.5 in conformity with the provisions of this
Indenture and that the authentication and delivery of such Securities
by the Trustee is authorized under the provisions of this Indenture and
(ii) that such Securities, when authenticated and delivered by the
Trustee and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel will constitute valid
and legally binding obligations of the Issuer, enforceable in
accordance with their terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally and to
general principles of equity regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees and/or
Responsible Officers shall determine that such action would expose the Trustee
to personal
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liability to existing holders or would adversely affect the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
The Trustee shall not be required to authenticate Securities
denominated in a coin or currency other than that of the United States of
America if the Trustee reasonably determines that such Securities impose duties
or obligations on the Trustee which the Trustee is not able or reasonably
willing to accept; provided that the Trustee, upon the request of the Issuer,
will resign as Trustee with respect to Securities of any series as to which such
a determination is made, prior to the issuance of such Securities, and will
comply with the request of the Issuer to execute and deliver a supplemental
indenture appointing a successor Trustee pursuant to Section 7.1 hereof.
SECTION 2.7 Execution of Securities. The Securities shall be
signed on behalf of the Issuer by both (a) the chairman of its Board of
Directors, its president or any vice president and (b) chief financial officer,
treasurer, controller or secretary. Such signatures may be the manual or
facsimile signatures of the present or any future such officers. Typographical
and other minor errors or defects in any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of
the Securities shall cease to be such officer before the Security so signed
shall be authenticated and delivered by the Trustee or disposed of by the
Issuer, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security had not ceased to be
such officer of the Issuer; and any Security may be signed on behalf of the
Issuer by such persons as, at the actual date of the execution of such Security,
shall be the proper officers of the Issuer, although at the date of the
execution and delivery of this Indenture any such person was not such an
officer.
SECTION 2.8 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, executed by the Trustee by the manual
signature of one of its authorized officers, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee upon any Security executed by the Issuer shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this
Indenture.
SECTION 2.9 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as registered
securities without coupons and in denominations as shall be specified as
contemplated by Section 2.5. In the absence of any such specification with
respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of U.S.$1,000 (or, if such Securities are denominated
in a currency other than U.S. dollars or in a composite currency, 1,000 units of
such other currency or composite currency) and any multiple thereof. The
Securities of each series shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Issuer executing the same may determine with the approval of the Trustee as
evidenced by the execution and authentication thereof.
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Each Security shall be dated the date of its authentication,
shall bear interest, if any, from the date, and shall be payable on the dates,
in each case, which shall be specified as contemplated by Section 2.5.
Except as otherwise specified for a particular series pursuant
to Section 2.5, the Person in whose name any Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding the cancellation of such Security upon any
registration of any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Securities of such series are
registered at the close of business on a subsequent record date (which shall be
not less than five days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the holders
of Securities not less than 15 days preceding such subsequent record date. The
term "record date" as used with respect to any interest payment date (except a
date for payment of defaulted interest) shall mean the date specified as such in
the terms of the Securities of any particular series, or, if no such date is so
specified, if such interest payment date is the first day of a calendar month,
the fifteenth day of the next preceding calendar month or, if such interest
payment date is the fifteenth day of a calendar month, the first day of such
calendar month, whether or not such record date is a Business Day.
SECTION 2.10 Registration, Transfer and Exchange; Certain
Transfers and Exchanges. The Issuer will keep, either at the office or agency
designated and maintained by the Issuer for such purpose in the Borough of
Manhattan, The City of New York, in accordance with the provisions of Section
3.2, or at any of such other offices or agencies as may be designated and
maintained in accordance with the provisions of Section 3.2, a register or
registers in which, subject to such reasonable regulations as it may prescribe,
it will register, and will register the transfer of, Securities of a series as
in this Article provided. Such register shall be in written form in the English
language or in any other form capable of being converted into such form within a
reasonable time. At all reasonable times such register or registers shall be
open for inspection by the Trustee and any Security Registrar other than the
Trustee.
Upon due presentation for registration of transfer of any
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.2, the Issuer shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Security or Securities of the same series in authorized denominations for a
like aggregate principal amount and having the same interest rate, maturity,
repayment and redemption provisions.
Any Security or Securities of any series (other than a Global
Security, except as set forth in Section 2.14) may be exchanged for a Security
or Securities of the same series in other authorized denominations, in an equal
aggregate principal amount and having the same interest rate, maturity,
redemption and repayment provisions. Securities of any series to be exchanged
shall be surrendered at any office or agency to be maintained by the Issuer for
the purpose as provided in
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Section 3.2, and the Issuer shall execute and the Trustee shall authenticate and
deliver in exchange therefor the Security or Securities of the same series and
having the same interest rate and maturity which the Securityholder making the
exchange shall be entitled to receive, bearing numbers or other distinguishing
symbols not contemporaneously outstanding. Each Person designated by the Issuer
pursuant to the provisions of Section 3.2 as a Person authorized to register and
register transfer of the Security is sometimes herein referred to as a "Security
Registrar".
The Issuer will at all times designate one Person (who may be
the Issuer and who need not be a Security Registrar) to act as repository of a
master list of names and addresses of the holders of the Securities (the
"Register"). The Trustee shall act as such repository unless and until some
other Person is, by written notice from the Issuer to the Trustee and each
Security Registrar, designated by the Issuer to act as such. The Issuer shall
cause each Security Registrar to furnish to such repository, on a current basis,
such information as to all registrations of transfer and exchanges effected by
such Security Registrar, as may be necessary to enable such repository to
maintain the Register on as current a basis as is practicable.
No Person shall at any time be designated as or act as a
Security Registrar unless such Person is at such time empowered under applicable
law to act as such and duly registered to act as such under and to the extent
required by applicable law and regulations.
All Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer or exchange in form satisfactory to the Issuer and the
Trustee duly executed by, the Securityholder or such Securityholders' attorney
duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities, other than exchanges
pursuant to Section 2.13, 7.5 or 10.3 not involving any registration of
transfer. No service charge shall be made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days immediately
preceding the day of selection of Securities of that series to be redeemed, or
(b) any Securities selected, called or being called for redemption or
surrendered for repayment in whole or in part except, in the case of any
Security to be redeemed or repaid in part, the portion thereof not to be so
redeemed or repaid.
Notwithstanding any other provision of this Indenture,
transfers and exchanges of Securities shall be made only in accordance with
Sections 2.10 or 2.11 or, in the case of Global Securities, Section 2.14.
SECTION 2.11 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become mutilated,
defaced or be destroyed, lost or stolen and, in the absence of notice to the
Issuer or the Trustee that such Security has been acquired by a bona fide
purchaser, the Issuer may in its discretion execute and the Trustee shall
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authenticate and deliver, a new Security of the same series and of like tenor,
bearing a number or other distinguishing symbol not contemporaneously appearing
on an Outstanding Security, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substitute Security shall
furnish to the Issuer and to the Trustee (and any agent of the Issuer or
Trustee, if requested by the Issuer) such Security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless and,
in every case of destruction, loss or theft, evidence to their satisfaction of
the destruction, loss or theft of such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
In case any Security that has matured, or is about to mature,
or has been called for redemption in full, shall become mutilated or defaced or
be destroyed, lost or stolen, the Issuer in its discretion may instead of
issuing a substitute Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated or defaced Security), if the
applicant for such payment shall furnish to the Issuer and to the Trustee (and
any agent of the Issuer or Trustee, if requested by the Issuer) such security or
indemnity as any of them may require to indemnify and defend and to save each of
them harmless, and, in every case of destruction, loss or theft, evidence to
their satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof.
Every substituted Security of any series issued pursuant to
the provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, 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 (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.12 Cancellation of Securities Paid, etc. All
Securities surrendered for the purpose of payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer, any Security Registrar, any
paying agent or any other agent of the Issuer or any agent of the Trustee, shall
be delivered to the Trustee and promptly canceled by it or, if surrendered to
the Trustee, shall be promptly canceled by it; and no Securities shall be issued
in lieu thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall destroy canceled Securities held by it and deliver
a certificate of destruction to the Issuer. If the Issuer shall acquire any of
the Securities, such acquisition shall not operate as a redemption or
satisfaction of
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the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.13 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced). Temporary Securities of any
series shall be issuable as registered Securities without coupons, in any
authorized denomination, and substantially in the form of the definitive
Securities of such series in lieu of which they are issued but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer. Temporary Securities may
contain such reference to any provisions of this Indenture as may be
appropriate. Every temporary Security shall be authenticated by the Trustee upon
the same conditions and in substantially the same manner, and with like effect,
as the definitive Securities in lieu of which they are issued. Without
unreasonable delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Securities of such series may
be surrendered in exchange therefor without charge at each office or agency to
be maintained by the Issuer for that purpose pursuant to Section 3.2, and the
Trustee shall authenticate and deliver in exchange for such temporary Securities
of such series a like aggregate principal amount of definitive Securities of the
same series of authorized denominations having the same interest rate, maturity
and redemption and repayment provisions, and bearing interest, if any, from the
same date as such temporary Securities. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this
Indenture as definitive Securities of the same series authenticated and
delivered hereunder.
SECTION 2.14 Global Securities. (a) Notwithstanding anything
in this Indenture to the contrary, if the Issuer shall establish pursuant to
Section 2.5 that the Securities of a series are to be issued in the form of one
or more Global Securities, then the Issuer shall execute and the Trustee shall,
in accordance with Section 2.6 and the order of the Issuer with respect to such
series, authenticate and deliver one or more Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of all of the Securities of such series, issued and not yet canceled,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions and
(iv) shall bear the legend provided in Section 2.14(f) or such other legend, if
any, as shall be required by the Depositary. Each Depositary of a Global
Security designated pursuant to Section 2.5 must, at the time of its designation
and at all times while it serves as Depositary hereunder, be a clearing agency
registered under the Exchange Act and any other applicable statute or
regulation.
(b) Except as otherwise specified pursuant to Section 2.5 with
respect to any series of Securities or as provided in this Section 2.14(b), no
Global Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or a
nominee thereof. If (i) the Depositary advises the Issuer and the Trustee in
writing that such Depositary is no longer willing or able to continue as
Depositary with respect to such Global Security, and a qualified successor
Depositary is not appointed by the Issuer within 90 days of receipt of such
notice from the Depositary, (ii) the Depositary notifies the Issuer that it has
ceased to be a
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clearing agency registered and in good standing under the Exchange Act or other
applicable statute or regulation and a successor Depositary is not appointed by
the Issuer within 90 days after the Issuer receives such notice or becomes aware
of such condition, as the case may be, (iii) the Issuer, in its sole discretion,
determines that the Global Securities shall be exchangeable for Securities in
registered form as described below, or (iv) there shall have occurred and be
continuing an Event of Default with respect to the series of Securities
evidenced by the Global Security, the Issuer will execute, and subject to
Article Two of this Indenture, the Trustee will, upon receipt of an order,
authenticate and deliver Securities in definitive, certificated and
fully-registered form, without interest coupons, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the
Outstanding Securities of such series evidenced by the Global Securities of such
series in exchange for such Global Securities. Upon such exchange, the Global
Securities of such series shall be surrendered to the Trustee for cancellation.
Such Securities in definitive form shall be registered in such names and in such
authorized denominations as the Depositary shall instruct the Trustee. The
Trustee shall deliver such Securities to the Depositary for delivery to the
persons in whose names such Securities are registered.
(c) Except as otherwise explicitly provided in Section
2.14(b), every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article Two or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
(d) The Depositary or its nominee, as the registered owner of
a Global Security, shall be the owner and holder of such Global Security for all
purposes under this Indenture and the Securities, and owners of beneficial
interests in a Global Security shall hold such interests. Accordingly, any such
owner's beneficial interest in a Global Security shall be shown only on, and the
transfer of such interest shall be effected only through, records maintained by
the Depositary or its nominee or agent. None of the Issuer, the Trustee, any
Security Registrar or any agent thereof shall have any liability in respect of
(i) any transfers effected by the Depositary (ii) the accuracy of any records
maintained by the Depositary, (iii) the payment by the Depositary of any amount
due to the beneficial owners of the Securities of the principal of or interest
on the Securities or any other amounts payable with respect thereto, (iv) the
delivery or timeliness of delivery by the Depositary of any notice which is
required to be given to Securityholders under this Indenture to the beneficial
owners of the Securities, or (v) any consent given or other action taken by the
Depositary as registered owner of the Securities. Notwithstanding the foregoing,
nothing herein shall prevent the Issuer, the Trustee, any Securities Registrar
or any such agent from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or, if applicable, such nominee,
or impair, as between the Depositary or its nominee and such owners of
beneficial interests, the operation of customary practices governing the
exercise of rights of the Depositary or its nominee as the holder of any
Security.
(e) The rights of owners of beneficial interests in a Global
Security shall be exercised only through the Depositary and shall be limited to
the rights established by law and agreements between such owners and the
Depositary and/or its members.
(f) Any Global Security issued hereunder shall bear a legend
in substantially the following form:
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"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee of a Depositary. This Security is exchangeable for Securities
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture and may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary."
(g) Any Global Security shall provide that the Depositary will
not sell, assign, transfer or otherwise convey any beneficial interest in such
Global Security unless such beneficial interest is in an amount equal to an
authorized denomination for Securities of such series, and that the Depositary,
by accepting such Global Security, agrees to be bound by such provision.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of and interest, if
any, (including any applicable premium or Additional Amounts) on each of the
Securities of such series at the place or places, at the respective times and in
the manner provided in such Securities. Each installment of interest on the
Securities of any series may be paid by mailing checks for such interest payable
to or upon the written order of the holders of Securities entitled thereto as
they shall appear in the Register; provided, however, that a holder of
U.S.$10,000,000 or more in aggregate principal amount of Securities of any
series will be entitled to receive installments of interests on each interest
payment date by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received in writing by the Trustee not less than
15 calendar days prior to such interest payment date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked by
such holder by written notice by the Trustee at least 15 calendar days prior to
the first Interest Payment Date for which such notice shall be effective.
SECTION 3.2 Offices for Payments, etc. So long as any of the
Securities remain Outstanding, the Issuer will designate and maintain in the
Borough of Manhattan, The City of New York, for each series: (a) an office or
agency where the Securities may be presented for payment, (b) an office or
agency where the Securities may be presented for registration of transfer and
for exchange as in this Indenture provided and (c) an office or agency where
notices and demands to or upon the Issuer in respect of the Securities or of
this Indenture may be served. In addition to such office or offices or agency or
agencies, the Issuer may from time to time designate and maintain one or more
additional offices or agencies within or outside the Borough of Manhattan, The
City of New York, where the Securities of that series may be presented for
payment or for registration of transfer or for exchange, and the Issuer may from
time to time rescind such designation, as it may deem desirable or expedient.
The Issuer will give to the Trustee written notice of the location of any such
office or agency and of any change of location thereof. The Issuer hereby
designates the New York Location and the Corporate Trust Office as the initial
offices to be maintained by it for such purposes. In case the Issuer shall fail
to maintain any such office or agency or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands may
be made and notices may be served at the Corporate
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Trust Office and the Issuer appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
SECTION 3.3 Paying Agents. Whenever the Issuer shall appoint a
paying agent or agents other than the Trustee with respect to the Securities of
any series, it will cause each such paying agent to execute and deliver to the
Trustee an instrument in which each such paying agent shall agree with the
Trustee, subject to the provisions of this Section:
(a) that it will hold all sums received by it as such agent
for the payment of the principal of or interest, if any, on the
Securities of such series (whether such sums have been paid to it by
the Issuer or by any other obligor on the Securities of such series) in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
(b) that it will give the Trustee notice of any default by the
Issuer (or by any other obligor on the Securities of such series) to
make any payment of the principal of or interest, if any, on the
Securities of such series when the same shall be due and payable; and
(c) that, at any time during the continuance of any such
default referred to in clause (b) above, upon the written request of
the Trustee, it will forthwith pay to the Trustee all sums so held in
trust by such paying agent.
Whenever the Issuer shall have one or more paying agents with
respect to Securities of any series, it will, prior to each due date of the
principal of or interest, if any, on the Securities of such series, deposit with
a designated paying agent a sum sufficient to pay such principal or interest, if
any, so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal or interest, if any, and (unless such paying
agent is the Trustee) the Issuer will promptly notify the Trustee of any failure
to take such action.
If the Issuer shall act as its own paying agent with respect
to the Securities of any series, it will, on or before each due date of the
principal of or interest, if any, on the Securities of such series, set aside,
segregate and hold in trust for the benefit of the Persons entitled to such
principal and interest, if any, a sum sufficient to pay such principal or
interest, if any, so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided. The Issuer will promptly notify the
Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the
Issuer may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities hereunder, or
for any other reason, pay or cause to be paid to the Trustee all sums held in
trust for any such series by the Issuer or any paying agent hereunder, as
required by this Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 9.3 and 9.4.
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SECTION 3.4 Limitation on Liens. The Issuer will not, at any
time directly or indirectly, and will not permit any Subsidiary to, create,
assume, incur or suffer to be created, assumed or incurred or to exist any Lien
upon any of the properties and assets of any character of the Issuer or any
Subsidiary without making effective provision whereby the Securities of any
series then outstanding shall be secured equally and ratably with (or prior to)
any other obligation or indebtedness so secured, so long as such other
obligation or indebtedness remains secured; except, however, that,
notwithstanding the foregoing, the Issuer or any Subsidiary, without so securing
the Securities of any series, may:
(a) lease property to others in the ordinary course of the
business of the Issuer or any Subsidiary or lease or sublease any property if
the property subject thereto is not needed by the Issuer or any Subsidiary in
the operation of its business;
(b) create, assume, incur, or suffer to be created, assumed or
incurred or to exist any Lien, provided, in each case, that the Lien secures
indebtedness for borrowed money, including purchase money indebtedness, which is
incurred to finance the acquisition of the property subject to such Lien and
that such Lien attaches to such asset concurrently with or within 90 days after
the acquisition thereof;
(c) assume or suffer to exist (i) any Lien existing on any
asset of any Person at the time such Person becomes a Subsidiary and not created
in contemplation of such event; (ii) any Lien on any asset of any Person
existing at the time such Person is merged or consolidated with or into the
Issuer or a Subsidiary and not created in contemplation of such event; and (iii)
any Lien existing on any asset prior to the acquisition thereof by the Issuer or
a Subsidiary and not created in contemplation of such acquisition;
(d) make any deposit with or give any form of security to any
governmental agency or other body created or approved by law or governmental
regulation in order to enable the Issuer or such Subsidiary to maintain
self-insurance, or to participate in any fund in connection with workmen's
compensation, unemployment insurance, old-age pensions, or other social
security, or to share in any privileges or other benefits available to Persons
participating in any such arrangement, or for any other purpose at any time
required by law or regulation promulgated by any governmental agency or office
as a condition to the transaction of any business or the exercise of any
privilege or license, or deposit assets of the Issuer or such Subsidiary with
any surety company or clerk of any court, or in escrow, as collateral in
connection with, or in lieu of, any bond on appeal by the Issuer or such
Subsidiary from any judgment or decree against it, or in connection with any
other proceedings in actions at law or suits in equity by or against the Issuer
or such Subsidiary;
(e) incur or suffer to be incurred or to exist upon any of its
property or assets (i) Liens for taxes, assessments or other governmental
charges or levies which are not yet due or are payable without penalty or of
which the amount, applicability or validity is being contested by the Issuer or
such Subsidiary in good faith by appropriate proceedings and the Issuer or such
Subsidiary shall have set aside on its books reserves which it deems to be
adequate with respect thereto (segregated to the extent required by generally
accepted accounting principles), provided that foreclosure, distraint, sale or
similar proceedings have not been commenced, (ii) the Liens of
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any judgment, if such judgment shall not have remained undischarged, or unstayed
on appeal or otherwise, for more than six months, (iii) undetermined Liens or
charges incident to construction, (iv) materialmen's, mechanics', workmen's,
repairmen's or other like Liens arising in the ordinary course of business in
respect of obligations which are not overdue or which are being contested by the
Issuer or such Subsidiary in good faith by appropriate proceedings, or deposits
to obtain the release of such Liens, or (v) any encumbrances consisting of
zoning restrictions, licenses, easements and restrictions on the use of real
property and minor defects and irregularities in the title thereto, which do not
materially impair the use of such property by the Issuer or such Subsidiary in
the operation of its business or the value of such property for the purpose of
such business;
(f) create other Liens arising in the ordinary course of its
business which (i) do not secure Debt, (ii) do not secure any obligation in an
amount exceeding U.S.$5,000,000, and (iii) do not in the aggregate materially
detract from the value of its property or assets or materially impair the use
thereof in the operation of its business;
(g) create or suffer to be created Liens not otherwise
permitted securing Debt in an aggregate principal amount at any time outstanding
not to exceed 15% of Consolidated Net Tangible Assets;
(h) create or suffer to be created or to exist in favor of any
lender of moneys or holder of commercial paper of the Issuer or a Subsidiary in
the ordinary course of business a banker's lien or right of offset in the holder
of such indebtedness or moneys of the Issuer or a Subsidiary deposited with such
lender or holder in the ordinary course of business;
(i) create, assume or suffer to exist Liens securing
indebtedness owed to the Issuer or any Subsidiary by another Subsidiary;
(j) create, assume, incur, or suffer to be created, assumed or
incurred or to exist any Lien upon any of its properties or assets of any
character in connection with the sale, transfer or other disposition of such
properties or assets (i) in connection with the securitization or other
asset-based financing thereof, (ii) to a real estate investment trust or similar
entity, or (iii) in connection with any transaction similar to the transactions
referred to in the immediately preceding clauses (i) or (ii); provided, however,
that any such sale, transfer or other disposition shall be for valid
consideration and shall not be to prefer directly or indirectly any holder of
any other obligation or indebtedness of the Issuer as to any such other
obligation or indebtedness that was already outstanding and did not previously
benefit from a Lien; and
(k) cause or allow any extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole or in part, of any
Lien referred to in the foregoing clauses; provided, however, that the principal
amount of any and all other obligations and indebtedness secured thereby shall
not exceed the principal amount thereof so secured at the time of such
extension, renewal or replacement (except that (a) the amount of obligations or
indebtedness secured by extensions, renewals or replacements of Liens on
property acquired through the exercise of rights arising out of defaults on
receivables may exceed the principal amount prior to such extension, renewal or
replacement and (b) the amount of obligations or
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indebtedness secured by extensions, renewals or replacements of Liens on
property may exceed the principal amount of such obligations or indebtedness
prior to such extension, renewal or replacement if the value of such property
has increased and the loan to value ratio of the refinanced obligation or
indebtedness does not exceed the loan to value ratio of the obligation or
indebtedness relating to the original Lien); and provided further that such
extension, renewal or replacement shall be limited to all or a part of the
property which secured the Lien so extended, renewed or replaced (plus
improvements on such property).
SECTION 3.5 Statement as to Compliance. The Issuer will
deliver to the Trustee within 120 days after the end of each of the Issuer's
fiscal years, a certificate executed by the principal executive officer, the
principal financial officer or the principal financial accounting officer of the
Issuer as to his or her knowledge of the Issuer's compliance with all conditions
and covenants under the Indenture and, in the event of any noncompliance,
specifying such noncompliance and the nature and status thereof. For purposes of
this Section 3.5, such compliance shall be determined without regard to any
period of grace or requirement of notice under this Indenture.
SECTION 3.6 Existence. Subject to Article Eight hereof, the
Issuer will do or cause to be done all things necessary to preserve and keep in
full force and effect the existence, rights (charter and statutory) and
franchises of the Issuer and its Subsidiaries; provided, however, that the
Issuer shall not be required to preserve any right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the context of the business of the Issuer and its Subsidiaries as a whole and
that the loss thereof is not disadvantageous in any material respect to the
holders of the Securities.
SECTION 3.7 Payment of Additional Amounts. If with respect to
Securities of any series it is specified pursuant to Section 2.5 that this
Section 3.7 shall apply to Securities of such series, then all payments in
respect of Securities of such series, including, without limitation, payments of
principal and interest, if any, shall be made by the Issuer without withholding
or deduction for or on account of any present or future taxes, duties, levies,
or other governmental charges of whatever nature in effect on the date that the
Securities of such series are originally issued or imposed or established in the
future by or on behalf of the United States or any authority in the United
States ("Taxes"). In the event any such Taxes are so imposed or established, the
Issuer shall pay such additional amounts ("Additional Amounts") as may be
necessary in order that the net amounts receivable by each holder of a Security
of such series who is a United States alien (as defined below) after any
payment, withholding or deduction in respect of such Taxes shall equal the
respective amounts of principal and interest, if any, which would have been
receivable in respect of the Securities in the absence of such payment,
withholding or deduction; provided that no Additional Amounts will be payable
with respect to any payment on any Security of such series to, or to a third
party on behalf of, a holder who is a United States alien for or on account of
any such Taxes whatever that have been imposed with respect to (1) any Tax which
would not have been so imposed but for (a) the existence of any present or
former connection between the holder (or a fiduciary, settlor, beneficiary,
member, shareholder, or holder of a power over, the holder, if the holder is an
estate, trust, partnership or corporation) and the United States, including,
without limitation, such holder (or such fiduciary, settlor, beneficiary,
member, shareholder of, or holder of a power) being or having been a citizen or
resident or treated as a resident thereof or being or having been engaged
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in a trade or business therein or being or having been present therein or having
or having had a permanent establishment therein, or (b) the holder's present or
former status as a personal holding company or foreign personal holding company
or controlled foreign corporation or passive foreign investment company for
United States federal income tax purposes or as a corporation which accumulates
earnings to avoid United States federal income tax or as a private foundation or
other tax-exempt organization; (2) any Tax which would not have been so imposed
but for the presentation by the holder of a Security of such series for payment
on a date more than 10 days after the date on which the payment became due and
payable or the date on which payment thereof is duly provided for, whichever
occurs later; (3) any estate, inheritance, gift, sales, transfer, personal
property or excise tax or any similar tax, assessment or governmental charge;
(4) any Tax which is payable otherwise than by withholding from payments in
respect of principal of, any premium, or any interest on any Security; (5) any
Tax imposed on interest received by a holder or beneficial owner of a Security
of such series who actually or constructively owns 10% or more of the total
combined voting power of all classes of the Issuer's stock entitled to vote or
is a bank that acquired a Security of such series in consideration of an
extension of credit made pursuant to a loan agreement entered into in the
ordinary course of business; (6) any Tax imposed as a result of the failure to
comply with (a) certification, information, documentation, reporting or other
similar requirements concerning the nationality, residence, identity or
connection with the United States of the holder or beneficial owner of the
Security, if such compliance is required by statute, or by regulation of the
United States Treasury Department, as a precondition to relief or exemption from
such tax, assessment or other governmental charge (including backup withholding
tax) or (b) any other certification, information, documentation, reporting or
other similar requirements under United States federal income tax laws or
regulations that would establish entitlement to otherwise applicable relief or
exemption from such tax, assessment or other governmental charge; (7) any Tax
required to be withheld by any paying agent from any payment of the principal
of, any premium or any interest on any Security of such series, if the payment
can be made without such withholding by at least one other paying agent; or (8)
any combination of items (1), (2), (3), (4), (5), (6) or (7). Furthermore, no
Additional Amounts shall be paid with respect to any payment on a Security of
such series to a holder who is a United States alien that is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent that a beneficiary or settlor with respect to such fiduciary or a member
of such partnership or beneficial owner would not have been entitled to receive
the Additional Amounts had such beneficiary, settlor, member or beneficial owner
been the holder of the Security of such series.
The term "United States alien" means any person who, for
United States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership, one or more of the members of which
is a foreign corporation, a non-resident alien individual or a non-resident
alien fiduciary of a foreign estate or trust.
Whenever in this Indenture or the Securities of any series to
which this Section 3.7 is applicable there is a reference, in any context, to
the payment of the principal of or interest, if any, on, or in respect of, any
Security, such payment shall be deemed to include the payment of Additional
Amounts to which this Section 3.7 is applicable provided for in this Section to
the extent that, in such context, Additional Amounts are, were or would be
payable in respect of such payment pursuant to the provisions of this Section
and express mention of the payment of Additional Amounts (if applicable) in any
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provision hereof or thereof shall not be construed as excluding Additional
Amounts in those provisions hereof where such express mention is not made.
Except as specifically provided in this Section 3.7 and
Section 10.6 with respect to Securities of any series to which such sections are
applicable, the Issuer will not be required to make any payment with respect to
any tax, assessment or governmental charge imposed by any government or a
political subdivision or taxing authority thereof or therein.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 Events of Default. "Event of Default" with respect
to Securities of a particular series wherever used herein, means any one of the
following events and such other events as may be established with respect to the
Securities of such series as contemplated by Section 2.5 hereof, continued for
the period of time, if any, and after the giving of notice, if any, designated
in this Indenture or as may be established with respect to such Securities as
contemplated by Section 2.5 hereof, as the case may be, unless such event is
either inapplicable or is specifically deleted or modified in, or pursuant to,
the applicable Resolution or in the supplemental indenture under which such
series of Securities is issued, as the case may be, as contemplated by Section
2.5:
(a) default in the payment of any interest on or any
Additional Amounts, if any, with respect to such Securities when due and
payable, and continuance of such default for a period of 30 days;
(b) default in the payment of the principal of, or any premium
on, the Securities of such series when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise;
(c) default in the performance, or breach, of any covenant or
warranty of the Issuer contained in the Securities of such series or this
Indenture, as the case may be, and continuance of such default or breach for a
period of 90 days after written notice thereof shall have been given to the
Issuer by the holders of at least 25% in aggregate principal amount of the
Securities of such series then outstanding;
(d) if any Event of Default as defined in any mortgage,
indenture or instrument under which there may be issued, or by which there may
be secured or evidenced, any indebtedness of the Issuer for money borrowed,
whether such indebtedness now exists or shall hereafter be created, shall occur
and shall result in such indebtedness in principal amount in excess of
$50,000,000 (or the equivalent thereof in foreign or composite currencies)
becoming or being declared due and payable prior to the date on which it would
otherwise become due and payable, and such acceleration shall not be rescinded
or annulled, or such indebtedness shall not have been discharged, within a
period of 30 days after written notice thereof shall have been given to the
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Issuer by the holders of at least 25% in aggregate principal amount of
Securities of such series then outstanding;
(e) the Support Agreement shall have ceased to be in full
force and effect for any reason or shall be amended or modified in any manner
unless, prior to such cessation, amendment or modification, S&P, ▇▇▇▇▇'▇ and any
other "nationally recognized statistical rating organization" (as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act) then rating
securities of the Issuer at the Issuer's request, have each confirmed that the
rating assigned to securities of the Issuer by such rating agency immediately
prior to such cessation, amendment or modification will not be downgraded, or
placed on what is commonly referred to as a "watch list" for possible
downgrading; provided, that, if the cessation, amendment or modification of the
Support Agreement is in connection with the assumption of the Securities of such
series by any other Person pursuant to the provisions described in Section 8.1
of this Indenture (whether by merger, consolidation, sale, conveyance, transfer
or lease), it shall not constitute an Event of Default if the senior debt
securities of the Person assuming the Securities of such series are rated by S&P
or Moody's immediately following such transfer or assumption at a rating equal
to or greater than the respective rating assigned to securities of the Issuer by
each such rating agency;
(f) Textron, the Issuer or any "significant subsidiary" (as
such term is defined in Section 1.02(w) of Regulation S-X of the Securities Act,
or any successor provision thereto) of the Issuer shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally or admit its inability to pay
its debts as they become due, or shall take any corporate action to authorize
any of the foregoing; or
(g) an involuntary case or other proceeding shall be commenced
against Textron, the Issuer or any significant subsidiary of the Issuer seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered against the Issuer,
Textron or any significant subsidiary of the Issuer under the federal bankruptcy
laws as now or hereafter in effect.
In case an Event of Default other than one under clause (f) or
(g) above shall have occurred and be continuing, then the holders of at least
25% in aggregate principal amount of the Securities of such series then
outstanding may declare the principal of all Outstanding Securities of such
series to be immediately due and payable. If an Event of Default under clause
(f) or (g) above shall have occurred and be continuing, the principal of all
Outstanding Securities of such
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series shall automatically become due and payable. Upon any such acceleration,
any premium and interest on the Securities of such series shall also become
immediately due and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) 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:
(a) the Issuer shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest, if any,
upon all the Securities of such series and the principal of any and all
Securities of such series which shall have become due otherwise than by
such declaration of acceleration (with interest upon such principal
and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest, if any, at the
Overdue Rate applicable to such series to the date of such payment or
deposit), and all amounts payable to the Trustee pursuant to Section
5.5; and
(b) any and all Events of Default under the Indenture with
respect to such series of Securities other than the non-payment of the
principal of such Securities which shall have become due by such
declaration of acceleration, shall have been cured, waived or otherwise
remedied as provided herein or provision shall have been made therefor
to the satisfaction of the Trustee,
then and in every such case the holders of not less than a majority in aggregate
principal amount of the Securities of such series then Outstanding, by written
notice to the Issuer and to the Trustee, may rescind and annul such declaration
and its consequences with respect to such series, but no such rescission and
annulment shall extend to or shall affect any subsequent default or shall impair
any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and annulled,
the principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as shall
be due and payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 4.2 Payment of Securities on Default; Suit Therefor.
The Issuer covenants that (a) in case a default shall be made in the payment of
any installment of interest on any of the Securities of any series as and when
such interest shall have become due and payable, and such default shall have
continued for a period of 30 days, or (b) in case a default shall be made in the
payment of the principal of any of the Securities of any series as and when the
same shall have become due and payable, whether upon maturity of the Securities
of such series or upon re-
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demption or by declaration or otherwise, or (c) in case of a default in the
making or satisfaction of any sinking fund payment or analogous obligation when
the same becomes due by the terms of the Securities of any series, then, upon
demand of the Trustee, the Issuer will pay to the Trustee for the benefit of the
holders of the Securities of such series the whole amount then due and payable
on all Securities of such series for principal and interest, if any, as the case
may be (with interest to the date of such payment upon the overdue principal
and, to the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, if any, at the Overdue Rate applicable
to Securities of such series); and in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, and any
further amounts payable to the Trustee pursuant to Section 5.5.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest, if any, on the Securities of any series to the
registered holders, whether or not the principal of and interest, if any, on the
Securities of such series be overdue.
In case the Issuer 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 any such judgment or final decree against the Issuer or other obligor
upon such Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon such Securities, wherever situated,
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy
or for the reorganization of the Issuer or any other obligor upon the Securities
of any series under Title 11 of the United States Bankruptcy Code or any other
similar applicable Federal or state law, or in case a receiver, trustee in
bankruptcy or similar official shall have been appointed for the property of the
Issuer or such other obligor, or in case of any other similar judicial
proceedings relative to the Issuer or other obligor upon the Securities of any
series, or to the creditors or property of the Issuer or such other obligor, the
Trustee, irrespective of whether the principal of any Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered, by intervention in
such proceedings or otherwise:
(a) to file a proof of claim or claims for the whole amount of
principal (or, if the Securities of any series are Original Issue
Discount Securities, such portion of the principal amount as may be due
and payable with respect to such series pursuant to a declaration in
accordance with Section 4.1) and interest, if any, owing and unpaid in
respect of the Securities of any series, and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for any amounts payable to the Trustee
pursuant to Section 5.5) and of the Securityholders allowed in any
judicial proceedings relating to the Issuer or other obligor upon the
Securities of any series, or to the creditors or property of the Issuer
or such other obligor;
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(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or of a person performing similar functions in comparable
proceedings; and
(c) 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 (after deduction of costs and expenses
of collection, and any further amounts payable to the Trustee pursuant
to Section 5.5 and incurred by it up to the date of distribution); and
any trustee in bankruptcy, receiver, or other similar official 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 costs and expenses of collection, and any further amounts
payable to the Trustee pursuant to Section 5.5 and incurred by it up to
the date of distribution.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under the Securities of any series, may be enforced by the Trustee
without the possession of any of the Securities of such series or the production
thereof on 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 be for the
ratable benefit of the holders of the Securities in respect of which such action
was taken.
In any proceedings brought by the Trustee (and also any
proceedings in which a declaratory judgment of a court may be sought as to the
interpretation or construction of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities to which such proceedings relate, and it shall not be
necessary to make any holders of such Securities parties to any such
proceedings.
SECTION 4.3 Application of Moneys Collected by Trustee. Any
moneys collected by the Trustee pursuant to this Article shall be applied in the
following order at the date or dates fixed by the Trustee and, in the case of
distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which moneys have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities in reduced principal amounts in exchange for the presented Securities
of like series and tenor if only partially paid, or upon surrender thereof if
fully paid:
FIRST: To the payment of amounts due to the Trustee pursuant
to Section 5.5;
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SECOND: In case the principal of the Outstanding Securities in
respect of which moneys have been collected shall not have become and
be then due and payable, to the payment of interest, if any, ratably,
on the Securities in default in the order of the maturity of the
installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee and to the extent permitted
by applicable law) upon the overdue installments of interest at the
Overdue Rate applicable to such Securities, such payments to be made
ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Outstanding Securities in
respect of which moneys have been collected shall have become and shall
be then due and payable by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon such Securities for
principal and interest, if any, with interest upon the overdue
principal, and (to the extent that such interest has been collected by
the Trustee and to the extent permitted by applicable law) upon overdue
installments of interest, if any, at the Overdue Rate applicable to
such Securities; and in case such moneys 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, if any, without
preference or priority of any kind, according to the aggregate amounts
due and payable on such Securities for principal and interest; and
FOURTH: To the payment of the remainder, if any, to the Issuer
or any other person lawfully entitled thereto.
SECTION 4.4 Proceedings by Trustee. In case an Event of
Default hereunder has occurred, has not been waived and is continuing, 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 in aid
of the exercise of any power granted in this Indenture or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee or any Securityholder shall have proceeded to
enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Securityholder, then and in every such case
the Issuer, the Securityholder and the Trustee shall subject to any
determination in such Proceeding, be restored severally and respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Issuer, the Trustee and the Securityholders shall continue as though no
such proceedings had been taken.
SECTION 4.6 Proceedings by Securityholders. 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 trustee in bankruptcy, receiver or other
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similar official or for any other remedy hereunder, unless such holder
previously shall have given to the Trustee written notice of an Event of Default
with respect to Securities of such series 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 such series then Outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceedings in its own name as Trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as it may require against the reasonable
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
indemnity shall have neglected or refused to institute any such action, suit or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 4.8; it being understood and
intended, and being expressly covenanted by the taker and holder of every
Security with every other taker and holder and the Trustee, that no one or more
holders of any Securities 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 any other holder of Securities, or to obtain or seek to
obtain priority over or preference to any other 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 the applicable
series. For the protection and enforcement of the provisions of this Section,
each and every Securityholder and the Trustee shall be entitled to such relief
as can be given either at law or in equity.
SECTION 4.7 Remedies Cumulative and Continuing. Except as
provided in Section 4.6, no right or remedy herein conferred upon or reserved to
the Trustee or to the Securityholders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
No delay or omission of the Trustee or of any Securityholder
to exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders of any or all
series, as the case may be, may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Securityholders of such
series or all series, as the case may be.
SECTION 4.8 Control by Securityholders. The holders of not
less than a majority in aggregate principal amount of the Securities of each
series affected at the time Outstanding (with each such series voting separately
as a class) 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 by this Indenture with respect to
Securities of such series. Notwithstanding any of the foregoing, no such
direction shall be otherwise than in accordance with law and the provisions of
this Indenture and (subject to the requirements of the Trust Indenture Act of
1939) the Trustee shall have the right to decline to follow any such direction
if the Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good faith
by its board of directors, the executive
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committee, or a trust committee of directors or Responsible Officers of the
Trustee shall determine that the action or proceedings so directed would involve
the Trustee in personal liability or may be unduly prejudicial to the
Securityholders not joining in the giving of such direction.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by Securityholders.
SECTION 4.9 Waiver of Past Defaults. Prior to the declaration
of the acceleration of the maturity of the Securities of any particular series
the holders of not less than a majority in aggregate principal amount of the
Securities of such particular series at the time Outstanding may on behalf of
the holders of all the Securities of such particular series waive any past
default or Event of Default with respect to such particular series and its
consequences, except a default in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the holder of each
Outstanding Security affected as provided in Section 7.2 hereof. In the case of
any such waiver, the Issuer, the Trustee and the holders of the Securities of
each series affected shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Reliance on Documents, Opinions, etc.; No
Requirement for Expenditure of Own Funds. Subject to the requirements of the
Trust Indenture Act of 1939:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, direction or other paper or document believed
by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Resolution may be evidenced to the
Trustee by a copy thereof certified by the secretary or an assistant
secretary or attesting secretary of the Issuer;
(c) the Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or
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omitted to be taken by it hereunder in good faith and in accordance
with such 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 might be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, (1) the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) 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,
direction, note, or other paper or document unless requested in writing
so to do by the holders of not less than a majority in aggregate
principal amount of the Securities of any series affected then
Outstanding; provided that, if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a
condition to proceeding; and the reasonable expenses of every such
investigation shall be paid by the Issuer or, if paid by the Trustee,
shall be repaid by the Issuer 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 not regularly in its employ and the Trustee
shall not be responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care by it hereunder.
(h) notwithstanding the provisions of Section 315(d) of the
Trust Indenture Act of 1939, the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer;
provided, however, that the Trustee's conduct does not constitute
willful misconduct or negligence.
(i) the Trustee is not required to take notice or deemed to
have notice of any default or Event of Default, unless a Responsible
Officer of the Trustee has received notice in writing of such default
or Event of Default from the Issuer or from the holders of at least 25%
in aggregate principal amount of the Outstanding Securities of the
series so affected, and in absence of any such notice, the Trustee may
conclusively assume that no default or Event of Default exists.
(j) the Trustee is not required to give any bond or surety
with respect to the performance of its duties or the exercise of its
powers under this Indenture.
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(k) the Trustee's immunities and protections from liability and its
rights to compensation and indemnification in connection with the
performance of its duties under this Indenture shall extend to the
Trustee's officers, directors, agents and employees. Such immunities and
protections and right to indemnification, together with the Trustee's
right to compensation, shall survive the Trustee's resignation or removal
and final payment of the Securities.
(l) the Trustee shall have no responsibility for any information in
any offering memorandum or other disclosure material distributed with
respect to any series of Securities other than that information which it
provides in writing to the Issuer expressly for the purpose of being
included in any such offering memorandum or other disclosure material, and
the Trustee shall have no responsibility for compliance with any state or
federal securities laws in connection with the Securities, other than the
filing of any documents required to be filed by an indenture trustee
pursuant to the Trust Indenture Act.
(m) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its sole discretion, may make such further
inquiry or investigations into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Issuer and its Restricted Subsidiaries, personally or by
one or more agents and attorneys.
None of the provisions contained in this Indenture shall be
construed as requiring the Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers if there shall be reasonable grounds
for believing that the repayment of such funds or adequate 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 requirements of the Trust Indenture Act of 1939.
SECTION 5.2 No Responsibility for Recitals, etc. The recitals
contained herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities, provided that the Trustee shall not be relieved of its duty to
authenticate Securities only as authorized by this Indenture. The Trustee shall
not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 5.3 Trustee and Agents May Hold Securities. The Trustee or
any agent of the Issuer or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities with the same rights it would have
if it were not the Trustee or such agent and, subject to the requirements of the
Trust Indenture Act of 1939, may otherwise deal with the
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Issuer and receive, collect, hold and retain collections from the Issuer with
the same rights it would have if it were not the Trustee or such agent.
SECTION 5.4 Moneys to Be Held in Trust. Subject to the provisions of
Sections 9.3 and 9.4 hereof, all moneys received by the Trustee or any paying
agent, all money and U.S. Government Obligations deposited with the Trustee
pursuant to Section 11.2 or Section 11.3 and all money received by the Trustee
in respect of U.S. Government Obligations deposited with the Trustee pursuant to
Section 11.2 or Section 11.3, 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 mandatory
provisions of law. Neither the Trustee nor any paying agent shall be under any
liability for interest on any moneys received by it hereunder, except such as it
may agree with the Issuer to pay thereon. So long as no Event of Default shall
have occurred and be continuing, all interest allowed on any such moneys shall
be paid from time to time upon the written order of the Issuer signed by one of
its officers, who is one of the officers who may sign an Officers' Certificate.
SECTION 5.5 Compensation and Expenses of Trustee. The Issuer
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation (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, the Issuer will pay or reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by or on behalf of it pursuant to any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Issuer also covenants to indemnify the Trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including the costs and expenses of defending itself
against any claim of liability in the premises. The obligations of the Issuer
under this Section to compensate and indemnify the Trustee and to pay or
reimburse the Trustee for reasonable expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. Such additional indebtedness, if any, shall be
secured by a lien prior to that of the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
benefit of the holders of particular Securities.
SECTION 5.6 Right of Trustee to Rely on Officers' Certificate, etc..
Subject to the requirements of the Trust Indenture Act of 1939, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action to be taken hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the faith
thereof.
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SECTION 5.7 Eligibility of Trustee. The Trustee for each series of
Securities hereunder shall at all times be a corporation which complies with the
requirements of the Trust Indenture Act of 1939, having a combined capital and
surplus of at least $10,000,000. If such corporation files reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation at any time shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so filed. In case at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 5.8.
SECTION 5.8 Resignation or Removal of Trustee; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer and by mailing
notice thereof to holders of the applicable series of Securities at their last
addresses as they shall appear in the Register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning trustee 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 the applicable series for at least six months may, subject to the
requirements of the Trust Indenture Act of 1939, on behalf of such
Securityholder and all others similarly situated, petition any such court for
the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 5.7 with respect to any series of Securities and
shall fail to resign after written request therefor by the Issuer or by
any Securityholder; or
(ii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent, or
a receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities (or all series, if required) and appoint a
successor trustee for such series by written instrument, in duplicate, executed
by authority of the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the requirements of the Trust Indenture Act of 1939, any
Securityholder who has been a bona fide holder of a Security or Securities of
such series for at least six months may on behalf of such Securityholder and all
others similarly situated, petition any court of competent jurisdiction
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for the removal of the Trustee and the appointment of a successor trustee with
respect to such series. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee with respect to such series.
(c) The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 6.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 5.8 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
5.9.
SECTION 5.9 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 5.8 shall execute,
acknowledge and deliver to the Issuer and to its predecessor Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee with respect to all or any applicable
series shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Issuer or of the successor trustee,
upon payment (or due provision therefor) of any amounts then due it pursuant to
Section 5.5, the predecessor Trustee ceasing to act shall, subject to Section
9.4, pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any such successor trustee, the Issuer 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 lien upon all property or funds held or collected by such
trustee to secure any amounts then due it pursuant to the provisions of Section
5.5.
If a successor trustee is appointed with respect to the Securities
of one or more (but not all) series, the Issuer, the predecessor Trustee and
each successor trustee with respect to the Securities of any applicable series
shall execute and deliver an indenture supplemental hereto which 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 any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and 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 make 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.
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No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 5.9 unless at the time of such
acceptance such successor trustee shall, with respect to such series, be
qualified under the provisions of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 5.7.
Upon acceptance of appointment by any successor trustee as provided
in this Section 5.9, the Issuer shall mail notice thereof to the holders of
Securities of any series for which such successor trustee is acting as trustee
at their last addresses as they shall appear in the Register. If the acceptance
of appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 5.8. If the Issuer fails to mail such notice within ten
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Issuer.
SECTION 5.10 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified under the
provisions of the Trust Indenture Act of 1939 and eligible under the provisions
of Section 5.7, 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 any of the Securities of any series shall
have been authenticated but not delivered, any such successor to the Trustee by
merger, conversion, consolidation or succession 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 of any series
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of such successor to the Trustee or, if such
successor to the Trustee is a successor by merger, conversion, consolidation or
succession in the name of any predecessor hereunder; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have.
SECTION 5.11 Reports by Trustee to Securityholders. Within 60 days
after March 15 in each year, beginning with the March 15 following the date of
this Indenture, the Trustee shall mail to the Securityholders a brief report
dated as of such reporting date in compliance with Section 313(a) of the Trust
Indenture Act of 1939, but only to the extent required by such Section 313(a).
The Trustee also shall comply with Section 313(b) of the Trust Indenture Act of
1939. The Trustee shall also transmit by mail all reports as required by Section
313(c) of the Trust Indenture Act of 1939. The Issuer shall promptly notify the
Trustee when the Securities are listed on any stock exchange.
SECTION 5.12 Compliance with Backup Withholding and Information
Reporting. Notwithstanding anything else herein contained, the Trustee, or its
agent, shall comply with all U.S. federal backup withholding and information
reporting requirements applicable to any payment under the Securities of any
series.
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ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Action by Securityholders. Whenever in this Indenture it
is provided that the holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action) the fact that at the time of taking any such
action the holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Securityholders in person or by agent or proxy appointed in
writing, or (b) by the record of such holders of Securities voting in favor
thereof at any meeting of such Securityholders duly called and held in
accordance with the provisions of this Article, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments and/or such record
are delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent or proxy shall be sufficient for any purpose
of this Indenture and (subject to the requirements of the Trust Indenture Act of
1939 and Section 5.1) conclusive in favor of the Trustee and the Issuer, if made
in the manner provided in this Article.
In determining whether the holders of the requisite principal amount
of Outstanding Securities of any or all series have taken any action (including
the making of any demand or request), the giving of any notice, consent or
waiver (or the taking of any other action) hereunder and in determining voting
rights of any holder of a Security hereunder (i) the principal amount of
Original Issue Discount Securities 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 4.1 and (ii) the principal amount of
any Security, the principal amount of which is denominated in a currency other
than U.S. dollars or in units of currencies or in a composite currency (the
"Specified Currency") shall be deemed to be that amount of U.S. dollars which
could have been obtained by the principal amount of such Specified Currency at
the Market Exchange Rate. For purposes of this Section 6.1, "Market Exchange
Rate" means, unless otherwise specified for a Specified Currency with respect to
any series of Securities pursuant to Section 2.5, the noon U.S. dollar buying
rate in the Borough of Manhattan, The City of New York for cable transfers of
the Specified Currency published by the Federal Reserve Bank of New York.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Securityholders.
If the Issuer shall solicit from the Securityholders any demand,
request, notice, consent, waiver or the taking of any other action (other than
in accordance with the Securityholders' voting provisions set forth in Sections
6.6 through 6.14 of this Article), the
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Issuer may, at its option, by a Resolution, fix in advance a record date for the
determination of holders entitled to give such demand, request, notice, consent,
or waiver or to take such other action, but the Issuer shall have no obligation
to do so. If such a record date is fixed, such demand, request, notice, consent,
waiver or such other action may be given before or after the record date, but
only the Securityholders of record at the close of business on the record date
shall be deemed to be holders for the purposes of determining whether holders of
the requisite percentage of Securities Outstanding have authorized or agreed or
consented to such demand, request, notice, consent, waiver or taking of any
other action, and for that purpose the Securities Outstanding shall be computed
as of the record date; provided, that no such demand, request, notice, consent,
waiver or taking of any other action by the holders on the record date shall be
deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
SECTION 6.2 Proof of Execution by Securityholders. Subject to the
requirements of the Trust Indenture Act of 1939 and Sections 5.1 and 6.11, proof
of the execution of any instrument by a Securityholder or his or her agent or
proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Securities shall be proved by the
Register or by a certificate of the Person designated by the Issuer to keep the
Register and to act as repository in accordance with the provisions of Section
2.10.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 6.12.
SECTION 6.3 Holders to Be Treated as Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the Person in
whose name any Security shall be registered in the Register for such series as
the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest, if any, on such Security
and for all other purposes; and neither the Issuer nor the Trustee nor any agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
All such payments so made to any such Person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Security.
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any demand,
request, notice, direction, consent or waiver under this Indenture, Securities
which are owned by the Issuer or any other obligor on the Securities with
respect to which such determination is being made or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer or any other obligor on the Securities with respect to
which such determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such demand, request, notice, direction, consent or waiver only Securities which
a Responsible Officer of the Trustee knows are so owned shall be so disregarded.
Securities so
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owned which have been pledged in good faith may be regarded as Outstanding for
purposes of this Section 6.4 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 Issuer or any other obligor upon the Securities or
any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to the requirements
of the Trust Indenture Act of 1939 and Section 5.1, the Trustee shall, in the
absence of manifest error, accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not
listed therein are Outstanding for the purpose of any such determination.
SECTION 6.5 Right of Revocation of Action Taken. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 6.1, of
the taking of any action by the holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any holder of a Security the
serial number or other distinguishing symbol of which is shown by the evidence
to be included among the serial numbers or other distinguishing symbols of the
Securities the holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of holding as
provided in this Article, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security and of any Securities issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon any such Security. Any action taken by the holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the holders of all the
Securities affected by such action.
SECTION 6.6 Securityholders' Meetings; Purposes. A meeting of
holders of Securities of any series or all series, as the case may be, may be
called at any time and from time to time pursuant to the provisions of this
Article Six for any of the following purposes:
(1) to give any notice to the Issuer or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
or Event of 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 Four;
(2) to remove the Trustee and nominate a successor trustee pursuant
to the provisions of Article Five;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 7.2; or
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(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 any series or all series, as the case may be, under any
other provision of this Indenture or under applicable law.
SECTION 6.7 Call of Meetings by Trustee. The Trustee may at any time
call a meeting of holders of Securities of any series or all series, as the case
may be, to take any action specified in Section 6.6, to be held at such time and
at such place in the Borough of Manhattan, The City of New York, as the Trustee
shall determine. Notice of every meeting of the holders of Securities of any
series or all series, as the case may be, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed to holders of Securities of each series affected at
their addresses as they shall appear in the Register as of a date not more than
15 days prior to the mailing of such notice. Such notice shall be mailed not
less than 20 nor more than 90 days prior to the date fixed for the meeting.
Any meeting of the holders of Securities of any series or all
series, as the case may be, shall be valid without notice if the holders of all
Securities of any series then Outstanding are present in person or by proxy, or,
if notice is waived before or after the meeting by the holders of all Securities
of any series outstanding, and if the Issuer and the Trustee are either present
by duly authorized representatives or have, before or after the meeting waived
notice.
SECTION 6.8 Call of Meetings by Issuer or Securityholders. In case
at any time the Issuer, pursuant to a Resolution, or the holders of at least 10%
in aggregate principal amount of the Securities then Outstanding of any or all
series, as the case may be, shall have requested the Trustee to call a meeting
of the holders of Securities of such series or all series, as the case may be,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed the notice of such
meeting within 20 days after receipt of such request, then the Issuer or such
Securityholders, in the amount specified above, may determine the time and the
place in the Borough of Manhattan, the City of New York, for such meeting and
may call such meeting to take any action authorized in Section 6.6, by mailing
notice thereof as provided in Section 6.7.
SECTION 6.9 Qualifications for Voting. To be entitled to vote at any
meeting of Securityholders a Person shall (a) be a holder of one or more
Securities with respect to which such meeting is being held or (b) be a Person
appointed by an instrument in writing as proxy by a holder of one or more of
such Securities. The only Persons who shall be entitled to be present or to
speak at any meeting of Securityholders 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 Issuer and its counsel.
SECTION 6.10 Quorum; Adjourned Meetings. The Persons entitled to
vote a majority in aggregate principal amount of the Securities of the relevant
series at the time Outstanding shall constitute a quorum for the transaction of
all business specified in Section 6.6. No business shall be transacted in the
absence of a quorum (determined as provided in this Section 6.10). In the
absence of a quorum within 30 minutes after the time appointed for any such
meeting, the meeting shall, if convened at the request of the holders of
Securities (as provided in
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Section 6.8), be dissolved. In any other case, the meeting shall be adjourned
for a period of not less than ten days as determined by the chairman of the
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting shall be further adjourned for a period of not less than ten
days as determined by the chairman of the meeting. Notice of the reconvening of
any adjourned meeting shall be given as provided in Section 6.7, except that
such notice must be mailed not less than five days prior to the date on which
the meeting is scheduled to be reconvened.
Any holder of a Security who has executed in person or by proxy and
delivered to the Trustee an instrument in writing complying with the provisions
of Section 6.2 shall be deemed to be present for the purposes of determining a
quorum and be deemed to have voted; provided that such holder of a Security
shall be considered as present or voting only with respect to the matters
covered by such instrument in writing.
SECTION 6.11 Regulations. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof of the holding
of Securities 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 determine.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the Issuer
or by Securityholders as provided in Section 6.8, in which case the Issuer or
the Securityholders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the holders of a
majority of the principal amount of the Outstanding Securities present at the
meeting.
Subject to the provisions of Section 6.4, at any meeting each holder
of Securities, with respect to which such meeting is being held, or such
holder's representative by proxy, shall be entitled to one vote for each U.S.
$1,000 (or if any Securities are denominated in a currency other than U.S.
dollars or in a composite currency, the equivalent of U.S. $1,000 in the
applicable currency or composite currency) principal amount (in the case of
Original Issue Discount Securities, such principal amount to be determined as
provided in the definition of "Outstanding" in Section 1.1) of such Securities
held or represented by him or her; provided, however, that no vote shall be cast
or counted at any meeting in respect of any such Security 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 such
Securities held by him or her or instruments in writing as aforesaid duly
designating him or her as the Person to vote on behalf of other such
Securityholders. Any meeting of holders of Securities with respect to which a
meeting was duly called pursuant to the provisions of Section 6.7 or 6.8 may be
adjourned from time to time by a majority of those present, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
SECTION 6.12 Voting. The vote upon any resolution submitted to any
meeting of holders of Securities with respect to which such meeting is being
held shall be by written
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ballots on which shall be subscribed the signatures of such holders of
Securities or of their representatives by proxy and the principal amount (in the
case of Original Issue Discount Securities, such principal amount to be
determined as provided in the definition of "Outstanding" in Section 1.1) and
number or numbers or other distinguishing symbol or symbols of such Securities
held or represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of
Securityholders 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 6.7. The record shall
show the principal amount of the Securities (in the case of Original Issue
Discount Securities, such principal amount to be determined as provided in the
definition of "Outstanding" in Section 1.1) voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Issuer and the other 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 6.13 No Delay of Rights by Meeting. Nothing in this Article
Six shall be deemed or construed to authorize or permit, by reason of any call
of a meeting of Securityholders of any or all series or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Securityholders of any or all such series under any of the provisions of
this Indenture or of the Securities.
SECTION 6.14 Written Consent in Lieu of Meeting. The written
authorization or consent by the holders of the requisite percentage in aggregate
principal amount of Outstanding Securities of one or more series herein
provided, entitled to vote at any such meeting, evidenced as provided in Section
6.1 and filed with the Trustee, shall be effective in lieu of a meeting of the
holders of Securities of such series, with respect to any matter provided for in
this Article Six.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by, or pursuant to a Resolution,
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:
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(a) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Securities of one or more series any property or
assets;
(b) to evidence the succession of another Person to the Issuer, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Issuer pursuant to Article
Eight;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the benefit of the holders of one or more series of
Securities (and if such covenants, restrictions, conditions or provisions
are to be 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 Issuer;
(d) to add additional Events of Default and to provide with respect
thereto for any particular periods of grace after default (which may be
shorter or longer than that allowed in the case of other defaults) or for
immediate enforcement upon such default or for any limitation of the
remedies available to the Trustee upon such default;
(e) to provide for the issuance under this Indenture of Securities
in bearer form (including Securities registrable as to principal only)
with or without interest coupons and to provide for exchangeability of
such Securities with the Securities of the same series issued hereunder in
fully registered form and to make all appropriate changes for such
purpose;
(f) 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 provision contained herein or in any
supplemental indenture; or to change or eliminate any provision or to make
such other provisions in regard to matters or questions arising under this
Indenture or under any supplemental indenture as the Issuer may deem
necessary or desirable and which shall not adversely affect the interests
of the holders of the Securities at the time Outstanding;
(g) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.5; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, pursuant
to the requirements of Section 5.9.
Upon the request of the Issuer, accompanied by a copy of a
Resolution certified by the secretary or an assistant secretary or attesting
secretary of the Issuer authorizing the execution of any such supplemental
indenture and an Officers' Certificate and Opinion of Counsel meeting
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the requirements of Section 12.5 hereof, the Trustee shall join with the Issuer
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 (but may in its
discretion) enter into any such supplemental indenture which adversely affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Issuer and the Trustee without the consent of the
holders of any of the Securities at the time Outstanding, notwithstanding any of
the provisions of Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article Six) of the holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected by such supplemental indenture (all such series voting as a
single class) at the time Outstanding, the Issuer, when authorized by, or
pursuant to a Resolution, 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 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 and
obligations of the Issuer and the rights of the holders of the Securities of all
such series; provided that no such supplemental indenture shall (a) extend the
fixed maturity of any Security, or reduce the principal amount thereof, or
reduce the rate or change the manner of calculation of interest thereon or
extend the time of payment of interest thereon, change any obligation of the
Issuer to pay Additional Amounts pursuant to Section 3.7 or reduce any
Additional Amount payable thereon (except as contemplated by Section 10.6), or
reduce any amount payable on redemption or reduce the Overdue Rate thereof or
make the principal thereof or interest thereon payable in any coin or currency
other than that provided in the Security or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 4.1 or the amount
thereof provable in bankruptcy pursuant to Section 4.2, or impair, if the
Securities provide therefor, any right of repayment at the option of the
Securityholder, or impair the right of any Securityholder to institute suit for
the enforcement of any required payment in respect of any Security on or after
the fixed maturity thereof, without the consent of the holder of each Security
so affected, or (b) reduce the aforesaid percentage of Securities the consent of
the holders of which is required for any such supplemental indenture or for the
waiver of certain provisions of this Indenture or certain defaults under the
Indenture, without the consent of the holders of each Security so affected.
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 Securityholders of such series with respect to such covenant
or provision, shall be deemed not to affect the rights under this Indenture of
the Securityholders of any other series. The preceding sentence shall not,
however, raise any inference as to whether or not a particular series is
affected by any supplemental indenture not referred to in such sentence.
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Upon the request of the Issuer, accompanied by a copy of a
Resolution certified by the secretary or an assistant secretary or attesting
secretary of the Issuer authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any, required by Section
6.1, the Trustee shall join with the Issuer in the execution of such
supplemental indenture unless such supplemental indenture adversely affects the
Trustee's open 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.
It shall not be necessary for the consent of the Securityholders
under this Section 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 Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 7.2, the
Issuer shall mail a notice thereof to the holders of Securities of each series
affected thereby at their addresses as they shall appear in the Register,
setting forth in general terms the substance of such supplemental indenture. Any
failure of the Issuer 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 7.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, 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 Issuer and the holders of Securities of
each series affected thereby 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 and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 7.4 Certain Documents to Be Given to Trustee. The Trustee,
subject to the requirements of the Trust Indenture Act of 1939 and Section 5.1,
may request an Officers' Certificate and an Opinion of Counsel as a condition to
entering into any supplemental indenture pursuant to this Article 7 and the
delivery thereof to the Trustee shall constitute conclusive evidence that any
supplemental indenture to be executed pursuant to this Article Seven complies
with the requirements of this Article.
SECTION 7.5 Notation on Securities. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article may bear a notation in form approved
by the Trustee for such series as to any matter provided for by such
supplemental indenture or as to any action taken at any such meeting. If the
Issuer or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Issuer, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Issuer, authenticated by the Trustee and
delivered in exchange for the Securities of such series then Outstanding.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 8.1 Issuer May Consolidate, etc., on Certain Terms. Nothing
contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of the Issuer with or into any other Person or Persons
(whether or not affiliated with the Issuer), or successive consolidations or
mergers in which the Issuer or its successor or successors shall be a party or
parties, or shall prevent any sale, conveyance, transfer or lease of all or
substantially all the property of the Issuer, to any other Person (whether or
not affiliated with the Issuer) authorized to acquire and operate the same;
provided, however, the Issuer hereby covenants and agrees, that upon any such
consolidation, merger, sale, conveyance, transfer or lease, (i) the due and
punctual payment of the principal of and interest, if any, on all of the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Issuer, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee by
the Person (if other than the Issuer) formed by such consolidation, or into
which the Issuer shall have been merged, or by the Person which shall have
acquired or leased such property and (ii) after giving effect to such
transaction, no Event of Default and no event which, after notice or lapse of
time or both, would become an Event of Default shall have occurred and be
continuing.
SECTION 8.2 Successor Person to Be Substituted. (a) In case of any
consolidation, merger, sale, conveyance, transfer or lease referred to in
Section 8.l and upon the assumption by the successor Person, by 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, if
any, on all of the Securities and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Issuer, such
successor Person shall succeed to and be substituted for the Issuer with the
same effect as if it had been named herein as the party of the first part. Such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
(b) In the case of a successor Person to the Issuer, such successor
Person thereupon may cause to be signed, and may issue either in its own name or
in the name of the Issuer any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor Person instead of the Issuer and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
which previously shall have been signed and delivered by the officers of the
Issuer to the Trustee for authentication, and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof. In the event of any such sale, conveyance or transfer, but not any such
lease, the Issuer or any successor Person which shall theretofore have become
such in the manner described in this Article Eight shall be discharged from all
obligations and covenants under this Indenture and the Securities and may be
dissolved and liquidated.
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SECTION 8.3 Opinion of Counsel and Officers' Certificate to Be Given
to Trustee. The Trustee, subject to the requirements of the Trust Indenture Act
of 1939 and Section 5.1, may require delivery of an Opinion of Counsel and
Officers' Certificate as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or lease complies with the provisions of this
Article Eight.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture. If at any time
(a) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any particular series Outstanding hereunder
(other than Securities which have been mutilated, defaced, destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.11 or in
lieu of or in substitution for which other Securities shall have been
authenticated and delivered) as and when the same shall have become due and
payable, or (b) the Issuer shall have delivered to the Trustee for cancellation
all Securities of such series theretofore authenticated (other than any
Securities of such series which shall have been mutilated, defaced, destroyed,
lost or stolen and which shall have been replaced or paid as provided in Section
2.11 or in lieu of or in substitution for which other Securities shall have been
authenticated and delivered) and not theretofore canceled, or (c)(i) all the
Securities of such series not theretofore canceled or delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and (ii) the Issuer shall have irrevocably deposited or caused to
be deposited with the Trustee as trust funds the entire amount in cash (other
than moneys repaid by the Trustee or any paying agent to the Issuer in
accordance with Section 9.4) sufficient to pay at maturity or upon redemption
all Securities of such series not theretofore delivered to the Trustee for
cancellation (other than any Securities of such series which shall have been
mutilated, defaced, destroyed, lost or stolen which have been replaced or paid
as provided in Section 2.11 or in lieu of or in substitution for which other
Securities shall have been authenticated and delivered), including principal and
interest, if any, due or to become due to such date of maturity or the date
fixed for redemption, as the case may be, and if, in any such case, the Issuer
shall also pay or make arrangements satisfactory in the reasonable opinion of
the Trustee for the payment thereof all other sums payable hereunder by the
Issuer with respect to Securities of such series, then this Indenture shall
cease to be of further effect with respect to Securities of such series (except
as to (i) rights of registration of transfer and exchange, and the Issuer's
right of optional redemption, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities, (iii) rights of Securityholders to receive
payments of principal thereof and interest, if any, thereon, and remaining
rights of the Securityholders to receive mandatory sinking fund payments, if
any, (iv) the rights, obligations and immunities of the Trustee hereunder,
including its rights under Section 5.5 and (v) the rights of the Securityholders
of such series as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them), and the Trustee, on demand of
the Issuer accompanied by an Officers' Certificate and an Opinion of Counsel and
at the cost and expense of the Issuer, shall
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execute proper instruments acknowledging such satisfaction of and discharging
this Indenture with respect to such series.
SECTION 9.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 9.4, all moneys deposited with the Trustee
pursuant to Section 9.1 shall be held in trust and applied by it to the payment,
either directly or through any paying agent (including the Issuer acting as its
own paying agent), to the holders of the particular Securities of such series
for the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest,
if any.
SECTION 9.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent, other than the Trustee,
under the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of or interest, if any, on any
Security of any series and not applied but remaining unclaimed for two years
after the date upon which such principal, premium or interest, as the case may
be, shall have become due and payable, shall, upon the written request of the
Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the holder of such Security of
such series shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look only
to the Issuer for any payment which such holder may be entitled to collect.
ARTICLE TEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 10.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are redeemable
before their maturity and to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 2.5 for
Securities of such series.
SECTION 10.2 Notice of Redemption; Selection of Securities. In case
the Issuer shall desire to exercise any right to redeem all or any part of the
Securities of any series in accordance with their terms, the Issuer shall fix a
date for redemption and the Issuer, or at the request and at the expense of the
Issuer, the Trustee, shall mail a notice of such redemption, at least 30 days
and not more than 60 days prior to the date fixed for redemption, to the holders
of Securities of such series so to be redeemed in whole or in part at their last
addresses as they shall appear in the Register. Any notice which is mailed in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the holder receives the notice.
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Failure to give notice by mail, or any defect in the notice, to the holder of
any Security of a series designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of any other
Security of such series.
The notice of redemption to each such holder shall specify the date
fixed for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities, that
any interest accrued to the date fixed for redemption will be paid as specified
in such notice and that on and after said date any interest thereon or on the
portions thereof to be redeemed will cease to accrue. If less than all of the
Outstanding Securities of a series are to be redeemed, the notice of redemption
shall specify the number or numbers or distinguishing symbol or symbols of the
Securities to be redeemed. In case any Security of a series is to be redeemed in
part, only the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the date fixed
for redemption, upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion thereof will be
issued.
Prior to the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee or
with one or more paying agents (or, if the Issuer is acting as its own paying
agent, segregate and hold in trust as required by the Trust Indenture Act of
1939) an amount of money (in the currency or units of currency in which the
Securities so called for redemption are denominated or an appropriate equivalent
thereof) sufficient to redeem on the redemption date all the Securities of such
series or portions thereof so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. If less than all the Outstanding Securities of a series are to be
redeemed (or less than the full principal amount of each Security in such series
is to be redeemed), the Issuer will deliver to the Trustee at least 60 days
prior to the date fixed for redemption (or such shorter period if acceptable to
the Trustee) an Officers' Certificate stating the aggregate principal amount of
Securities to be redeemed and, if the Trustee is not acting as the repository of
the Register for such series, a current list of all Outstanding Securities of
such series.
If less than all the Outstanding Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem appropriate
and fair, Securities of such series to be redeemed in whole or in part. Except
as otherwise specified for Securities of a particular series pursuant to Section
2.5, Securities may be redeemed in part in amounts equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Issuer in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities of any series
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 10.3 Payment of Securities Called for Redemption. If notice
of redemption has been given as provided in Section 10.2 above, the Securities
or portions of
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Securities specified in such notice shall become due and payable on the date and
at the place or places stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and on and
after said date (unless the Issuer shall default in the payment of such
Securities or portions thereof at the redemption price, together with interest
accrued to said date) interest on the Securities or portions of Securities so
called for redemption shall cease to accrue and, except as provided in Sections
5.4 and 9.4, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this Indenture, and
the holders of such Securities shall have no right in respect of such Securities
except the right to receive the redemption price thereof and unpaid interest to
the date fixed for redemption. On presentation and surrender of such Securities
at a place of payment specified in said notice, said Securities or the specified
portions thereof shall be paid and redeemed by the Issuer at the applicable
redemption price, together with interest accrued thereon to the date fixed for
redemption; provided that if the date fixed for redemption is an interest
payment date, the interest due on that date shall be payable to the holders of
such Securities registered as such on the relevant record date according to
their terms.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof so to be redeemed shall,
until paid or duly provided for, bear interest from the date fixed for
redemption at the Overdue Rate applicable to such series.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 10.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number or other distinguishing symbol in a written statement signed by an
authorized officer of the Issuer and delivered to the Trustee at least 10 days
prior to the date on which Securities are to be selected for redemption as being
owned of record and beneficially by, and not pledged or hypothecated by, either
(a) the Issuer or (b) an entity specifically identified in such written
statement directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer.
SECTION 10.5 Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of Securities of
any series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an "optional sinking fund payment". The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as
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aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.12, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities, and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
On or before the sixtieth day next preceding each sinking fund
payment date for any series of Securities, the Issuer will deliver to the
Trustee a certificate of the Issuer (which need not contain the statements
required by the Trust Indenture Act of 1939) signed by an officer of the Issuer
who is one of the officers authorized to sign an Officers' Certificate (a)
specifying the portion, if any, of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion, if any, to be satisfied by credit
of Securities of such series, (b) stating that none of such Securities has
theretofore been so credited, (c) stating that no Event of Default with respect
to such series has occurred (which has not been waived or cured) and is
continuing, and (d) stating whether or not the Issuer intends to exercise its
right to make an optional sinking fund payment with respect to such series and,
if so, specifying the amount of such optional sinking fund payment which the
Issuer intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be delivered
to the Trustee in order for the Issuer to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.12 to the Trustee with such
certificate. Such certificate shall be irrevocable and upon its receipt by the
Trustee the Issuer shall become obligated to make all the cash payments or
payments therein referred to, if any (which cash may be deposited with the
Trustee or with one or more paying agents, or, if the Issuer is acting as its
own paying agent, segregated and held in trust as required by the Trust
Indenture Act of 1939), on or before the next succeeding sinking fund payment
date. Failure of the Issuer, on or before any such sixtieth day, to deliver such
certificate and securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof, and (ii) that the Issuer will make no optional
sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed U.S.$100,000 or, if payments on Securities of such series are to be made
in a currency other than Dollars or in units or composites of two more
currencies, the equivalent thereof in the relevant currency or unit or composite
currency (or such other amount as is specified for a particular series of
Securities pursuant to Section 2.5), or a lesser sum if the Issuer shall so
request, with respect to the Securities of any particular series, such cash
shall be applied by the Trustee (or by the Issuer if the Issuer is acting as its
own paying agent) on the sinking fund payment date on which such payment is made
(or, if such payment is made before a sinking fund payment date, on the next
sinking fund payment date following the date of such payment) to the redemption
of such Securities at the sinking fund redemption price specified in such
Securities for operation of the sinking fund together with
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accrued interest, if any, to the date fixed for redemption. If such amount shall
be U.S.$100,000 or if payments on Securities of such series are to be made in a
currency other than Dollars or in units or composites of two more currencies,
the equivalent thereof in the relevant currency or unit or composite currency
(or such other amount as is specified for the particular series pursuant to
Section 2.5), or less and the Issuer makes no such request then it shall be
carried over until a sum in excess of U.S.$100,000, or the equivalent thereof in
the relevant currency or unit or composite currency, is available.
The Trustee shall select, in the manner provided in Section 10.2,
for redemption on such sinking fund payment date Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by the
Issuer) inform the Issuer of the serial numbers or other distinguishing symbols
of the Securities of such series (or portions thereof) so selected. If the
Trustee shall be required to select Securities of any series for the sinking
fund and is not acting as repository of the Register for such series, at least
60 days prior to the sinking fund payment date, the Issuer shall furnish to the
Trustee a current list of all Outstanding Securities of such series. Securities
of any series which are (a) owned by the Issuer or an entity known by the
Trustee to be directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer, as shown by the Register, and
not known to the Trustee to have been pledged or hypothecated by the Issuer or
any such entity, or (b) identified in an Officers' Certificate at least 60 days
prior to the sinking fund payment date as being beneficially owned by, and not
pledged or hypothecated by, the Issuer or an entity directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Issuer, shall be excluded from Securities of such series eligible for selection
for redemption. The Trustee, in the name and at the expense of the Issuer (or
the Issuer, if it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the
manner provided in Section 10.2, except that the notice of redemption shall also
state that the Securities are being redeemed by operation of the sinking fund
(and with the effect provided in Section 10.3) for the redemption of Securities
of such series in part at the option of the Issuer. The amount of any sinking
fund payments not so applied or allocated by the Trustee (or by the Issuer if
the Issuer is acting as its own paying agent) to the redemption of Securities of
such series shall be added to the next cash sinking fund payment received by the
Trustee (or if the Issuer is acting as its own paying agent, segregated and held
in trust as required by the Trust Indenture Act of 1939) for such series and,
together with such payment (or such amount so segregated), shall be applied in
accordance with the provisions of this Section 10.5. Any and all sinking fund
moneys held by the Trustee (or if the Issuer is acting as its own paying agent,
segregated and held in trust as required by the Trust Indenture Act of 1939) on
the stated maturity date of the Securities of any particular series (or earlier,
if such maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such series shall be applied by the
Trustee (or by the Issuer if the Issuer is acting as its own paying agent),
together with other moneys, if necessary, sufficient for the purpose, to the
payment of the principal of, and interest on, the Securities of such series at
maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash (or if the Issuer is acting as its own paying agent will
segregate and hold in trust as required by the Trust Indenture Act of 1939) or
shall otherwise provide for the payment of all interest accrued to the date
fixed for redemption on Securities (or portions thereof) to be redeemed on such
sinking fund payment date.
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Neither the Issuer nor the Trustee shall redeem or cause to be
redeemed any Securities of a series with sinking fund moneys or mail any notice
of redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest, if any, on such
Securities or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph, with respect to such Securities) except
that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee (or the Issuer if the Issuer is acting
as its own paying agent) shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Issuer (or the Issuer shall have
segregated) a sum sufficient for such redemption. Except as aforesaid, any
moneys in the sinking fund for such series at the time when any such default or
Event of Default shall occur, and any moneys thereafter paid into the sinking
fund, shall, during the continuance of such default or Event of Default, be
deemed to have been collected under Article Four and held for the payment of all
such Securities. Notwithstanding anything in the foregoing to the contrary, in
case such default or Event of Default shall have been waived as provided in
Section 4.9 or the default or Event of Default cured on or before the sixtieth
day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section 10.5 to the redemption of such Securities.
SECTION 10.6 Redemption for Tax Reasons. If, with respect to
Securities of any series it is specified pursuant to Section 2.5 that Section
3.7 shall be applicable to Securities of such series, at any time after the date
of issuance of Securities of such series pursuant to this Indenture, as a result
of any change in, or amendment to, the laws, including any regulations or
rulings promulgated thereunder, of the United States or any political
subdivision thereof or any authority therein or thereof having power to tax or
as a result of any change in the application or official interpretation of such
laws, including any proposals for change, amendment or application or
interpretation of such laws, where the amendment or change becomes effective on
or after the date on which the underwriting, subscription, distribution, or
similar agreement (an "Issuance Agreement") is executed for such series of
Securities and if no such Issuance Agreement is executed, the date on which such
series of Securities are first offered for sale, or which proposal is made after
such date, or as a result of any action taken by any taxing authority of the
United States which action is taken or becomes generally known after such date,
or any commencement of a proceeding in a court of competent jurisdiction in the
United States after such date, whether or not such action was taken or such
proceeding was brought with respect to us, the Issuer becomes, or will become,
obligated to pay any Additional Amounts with respect to Securities of such
series, then the Securities of such series will be redeemable as a whole (but
not in part), at the option of the Issuer, at any time upon not less than thirty
(30) nor more than sixty (60) days' notice given to the holders at their
principal amount together with accrued interest thereon (and any Additional
Amounts payable with respect thereto) to the date fixed for redemption (the "Tax
Redemption Date"). The Issuer will also pay to the holders of Securities of such
series on the Tax Redemption Date any Additional Amounts which would otherwise
be payable. In order to effect a redemption of Securities of any such series as
described in this Section 10.6, the Issuer shall deliver to the Trustee at least
forty-five (45) days prior to the Tax Redemption Date: (i) a written notice
stating that the Securities of such series are to be redeemed as a whole,
specifying the redemption date and other pertinent information and (ii) an
Opinion of Counsel to the effect that the Issuer has or will become obligated to
pay Additional Amounts as a result of any such change or amendment. No notice of
redemption may be given earlier than ninety (90) days prior to the earliest date
on which the Issuer would be obligated to pay such
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Additional Amounts were a payment in respect of the Securities of such series
then due. The notice shall additionally specify the Tax Redemption Date and all
other information necessary to the mailing by the Trustee of notices of such
redemption. The Trustee shall be entitled to rely conclusively upon the
information so furnished by the Issuer in such notice and shall be under no duty
to check the accuracy or completeness thereof. Such notice shall be irrevocable
and upon its delivery the Issuer shall be obligated to make the payment or
payments referred to therein to the Trustee.
ARTICLE ELEVEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 11.1 Applicability of Article; Issuer's Option to Effect
Defeasance or Covenant Defeasance. The Issuer may at its option, by or pursuant
to a Resolution, at any time, with respect to the Securities of any series elect
to have either Section 11.2 or Section 11.3 be applied to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article Eleven.
SECTION 11.2 Defeasance and Discharge. Upon the Issuer's exercise of
the above option applicable to this Section, the Issuer shall be deemed to have
been discharged from its obligations with respect to the Outstanding Securities
of such series on the date the conditions set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Issuer shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the Issuer,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of holders of Outstanding Securities of such series to
receive, solely from the trust fund described in Section 11.4 and as more fully
set forth in such Section, payments in respect of the principal of and interest
on such Securities when such payments are due, (b) the Issuer's obligations with
respect to such Securities under Sections 2.10, 2.11, 2.13, 3.2 and 3.3, (c) the
rights, powers, trusts, duties, and immunities of the Trustee under Sections
2.11, 2.12, 2.13, 4.3, 5.5 and Article 9, and otherwise the duty of the Trustee
to authenticate Securities of such series issued on registration of transfer or
exchange and (d) this Article Eleven. Subject to compliance with this Article
Eleven, the Issuer may exercise its option under this Section 11.2
notwithstanding the prior exercise of its option under Section 11.3 with respect
to the Securities of such series.
SECTION 11.3 Covenant Defeasance. Upon the Issuer's exercise of the
above option applicable to this Section, the Issuer shall be released from its
obligations under Section 3.4 and Section 4.1(c) with respect to the Outstanding
Securities of such series on and after the date the conditions set forth below
are satisfied (hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities of
such series, the Issuer may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section with
respect to it, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any
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reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 11.4 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 11.2 or
Section 11.3 to the Outstanding Securities of such series:
(a) the Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 5.7 who shall agree to comply with the provisions of this
Article Eleven applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the holders of such Securities,
(A) money in an amount, or (B) U.S. Government Obligations which through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge,
(i) the principal of and each installment of principal of and interest on
the Outstanding Securities of such series on the stated maturity of such
principal or installment of principal or interest, and (ii) any mandatory
sinking fund payments or analogous payments applicable to the Outstanding
Securities of such series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of America
for the payment of which its full faith and credit is pledged or (y)
obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of
which is unconditionally guaranteed, as a full faith and credit obligation
by the United States of America, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also include
a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any
such U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian for
the account of the holder of such depositary 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 depositary receipt
from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal of or interest
on the U.S. Government Obligation evidenced by such depositary receipt.
(b) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit.
(c) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities of such series to have a conflicting interest
for purposes of the Trust Indenture Act of 1939 with respect to any
securities of the Issuer.
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(d) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Issuer is a party or by
which it is bound.
(e) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national
securities exchange under the Securities Exchange Act of 1934, as amended,
to be delisted.
(f) In the case of an election under Section 11.2, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Issuer has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there
has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm that, the
holders of the Outstanding Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such defeasance had not occurred.
(g) In the case of an election under Section 11.3, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
holders of the Outstanding Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(h) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
11.2 or the covenant defeasance under Section 11.3 (as the case may be)
have been complied with, and shall have paid (or made arrangements
satisfactory to the Trustee for the payment thereof) of all amounts
payable to the Trustee hereunder which have accrued or will accrue until
the Securities have been paid in full.
SECTION 11.5 Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of
Section 9.4, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee --
collectively, for purposes of this Section 11.5, the "Trustee") pursuant to
Section 11.4 in respect of the Outstanding Securities of such series shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Securities and this Indenture, to the payment, either directly or through
any paying agent (including the Issuer acting as its own paying agent) as the
Trustee may determine, to the holders of such Securities, of all sums due and to
become due thereon in respect of principal and interest, but such money need not
be segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section
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11.4 or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the holders of
the Outstanding Securities of such series.
Anything in this Article Eleven to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon the Issuer's
request any money or U.S. Government Obligations held by it as provided in
Section 11.4 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
ARTICLE TWELVE
MISCELLANEOUS PROVISIONS
SECTION 12.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
official or director, as such, of the Issuer or of any successor, either
directly or through the Issuer or any successor, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the holders thereof
and as part of the consideration for the issue of the Securities.
SECTION 12.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any Person, firm or
corporation, other than the parties hereto and their successors and assigns and
the holders of the Securities, any legal or equitable right, remedy or claim
under this Indenture or under any covenant, condition or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and of the holders of the Securities.
SECTION 12.3 Successors and Assigns of Issuer Bound by Indenture.
All the covenants, stipulations, promises and agreements contained in this
Indenture by the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 12.4 Notices and Demands on Issuer, Trustee and
Securityholders. 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 to or on the Issuer may be given or served by being deposited
postage prepaid, first-class mail, in a post office letter box (except as
otherwise specifically provided herein) addressed (until another address of the
Issuer is furnished by the Issuer to the Trustee) to Textron Financial
Corporation, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, P.O. Box 6687, Providence, Rhode Island
02940-6687, Attention: Treasurer and General Counsel. Any notice, direction,
request or demand by the Issuer or any Securityholder to or upon
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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.
Where this Indenture provides for notice to Securityholders, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Securityholder
entitled thereto, at his last address as it appears in the Register. In any case
where notice to Securityholders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular
Securityholder shall affect the sufficiency of such notice with respect to other
Securityholders. 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 Securityholders 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. Notwithstanding anything to the
contrary elsewhere in this Indenture as to the giving of notice, any other form
of written notice is sufficient, if received.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then notwithstanding anything to the contrary
elsewhere in this Indenture as to the giving of notice, any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
SECTION 12.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent have been complied
with, except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
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 shall include (a) a statement that the Person
making such certificate or opinion has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (c) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with, and (d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the
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matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous. Any certificate, statement or Opinion of Counsel may be
based, insofar as it relates to factual matters or information in the possession
of the Issuer, upon the certificate, statement or opinion of or representations
by an officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his or her certificate, statement or opinion may be based as
aforesaid are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his or her certificate, statement
or opinion may be based as aforesaid are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
All such certificates, statements or opinions shall otherwise be in
form and substance reasonably satisfactory to the Trustee.
SECTION 12.6 Official Acts by Successor Entity. 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 Issuer shall and may be
done and performed with like force and effect by the like board, committee or
officer of any entity that shall at the time be the lawful sole successor of the
Issuer.
SECTION 12.7 Payments Due on Saturdays, Sundays and Legal Holidays.
If the date of maturity of interest on or principal of the Securities of any
series or the date fixed for redemption or repayment of any such Security shall
not be a Business Day, then payment of such interest, if any, or principal need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the date of maturity or the date
fixed for redemption or repayment, and no interest shall accrue for the period
from and after such date.
SECTION 12.8 New York Law to Govern. This Indenture and each
Security shall be governed by and construed in accordance with the laws of the
State of New York, without regard to conflict of law principles.
SECTION 12.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 12.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience of reference only, are not
to be considered a part hereof and shall not affect the construction hereof.
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SECTION 12.11 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act of 1939 that is required under such Act to be a part of and govern this
Indenture, the latter provisions shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act of 1939
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or excluded, as the case may be.
SECTION 12.12 Severability. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, as of the date first written above.
TEXTRON FINANCIAL CORPORATION,
as Issuer
By:___________________________
Name:
Title:
SUNTRUST BANK, ATLANTA,
as Trustee
By:____________________________
Name:
Title:
(1)