EXHIBIT 4.3
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC.
as the Company
and
[___________________________]
as Trustee
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Form of
Subordinated Debt Indenture
Dated as of [ ], 1997
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▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇, Inc.
Reconciliation and Tie Between
Trust Indenture Act of 1939 and
indenture Provisions*/
Trust Indenture
Act Section Indenture Section
--------------- -----------------
ss.310 (a) (1) .................................................................. 7.10
(a) (2) .................................................................. 7.10
(a) (3) .................................................................. Not Applicable
(a) (4) .................................................................. Not Applicable
(b) .................................................................. 7.3
11.1
ss.311 (a) .................................................................. 7.3
(b) .................................................................. 7.3
(b)(2) .................................................................. 7.3
ss.312 (a) .................................................................. 11.1
(b) .................................................................. 11.1
(c) .................................................................. 11.1
ss.313 (a) .................................................................. 7.6
(b) .................................................................. 7.6
(c) .................................................................. 7.6
(d) .................................................................. 7.6
ss.314 (a) .................................................................. 4.4
4.5
(b) .................................................................. Not Applicable
(c)(1) .................................................................. 11.3
11.4
(c)(2) .................................................................. 11.3
11.4
(c)(3) .................................................................. Not Applicable
(d) .................................................................. Not Applicable
(e) .................................................................. 11.4
ss.315 (a) .................................................................. 7.1
7.2
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1/ This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Trust Indenture
Act Section Indenture Section
--------------- -----------------
(b) .................................................................. 7.5
(c) .................................................................. 7.2
(d) .................................................................. 7.2
(d)(1) .................................................................. 7.1
(d)(2) .................................................................. 7.2
(d)(3) .................................................................. 7.2
(e) .................................................................. 6.12
ss.316 (a) .................................................................. 1.1
(a)(1)(A) .................................................................. 6.2
6.5
(a)(1)(B) .................................................................. 6.4
(a)(2) .................................................................. Not Applicable
(b) .................................................................. 6.7
ss.317 (a)(1) .................................................................. 6.3
6.8
(a)(2) .................................................................. 6.9
(b) .................................................................. 2.6
ss.318 (a) .................................................................. 11.1
TABLE OF CONTENTS*
Page
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RECITALS OF THE COMPANY................................................................1
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE.............................................1
SECTION 1.1 Definitions...........................................................1
SECTION 1.2 Other Definitions.....................................................7
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.....................8
SECTION 1.4 Rules of Construction.................................................9
ARTICLE 2
THE SECURITIES.........................................................................9
SECTION 2.1 Form and Dating.......................................................9
SECTION 2.2 Execution and Authentication..........................................9
SECTION 2.3 Amount Unlimited; Issuable in Series.................................11
SECTION 2.4 Denomination and Date of Securities; Payments of Interest............14
SECTION 2.5 Agents Generally.....................................................15
SECTION 2.6 Paying Agent to Hold Money in Trust..................................15
SECTION 2.7 Transfer and Exchange................................................16
SECTION 2.8 Replacement Securities...............................................20
SECTION 2.9 Outstanding Securities...............................................20
SECTION 2.10 Temporary Securities.................................................21
SECTION 2.11 Cancellation.........................................................23
SECTION 2.12 CUSIP Numbers........................................................23
SECTION 2.13 Defaulted Interest...................................................24
SECTION 2.14 Series May Include Tranches..........................................24
SECTION 2.15 Computation of Interest..............................................24
SECTION 2.16 Currency and Manner of Payment in Respect of Securities..............24
ARTICLE 3
REDEMPTION............................................................................30
SECTION 3.1 Applicability of Article.............................................30
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*Note: The Table of Contents shall not for any purposes be deemed
to be a part of the Indenture.
i
SECTION 3.2 Notice of Redemption; Partial Redemptions............................30
SECTION 3.3 Payment of Securities Called for Redemption..........................32
SECTION 3.4 Exclusion of Certain Securities from Eligibility for Selection
for Redemption.......................................................33
SECTION 3.5 Mandatory and Optional Sinking Funds.................................33
ARTICLE 4
COVENANTS.............................................................................35
SECTION 4.1 Payment of Securities................................................35
SECTION 4.2 Maintenance of Office or Agency......................................36
SECTION 4.3 [Reserved]...........................................................
SECTION 4.4 Certificate to Trustee...............................................37
SECTION 4.5 Reports by the Company...............................................38
SECTION 4.6 Calculation of Original Issue Discount...............................38
ARTICLE 5
SUCCESSOR CORPORATION..................................................................38
SECTION 5.1 When Company May Merge, Etc..........................................38
SECTION 5.2 Successor Substituted................................................39
ARTICLE 6
DEFAULT AND REMEDIES..................................................................39
SECTION 6.1 Events of Default....................................................39
SECTION 6.2 Acceleration.........................................................41
SECTION 6.3 Other Remedies.......................................................43
SECTION 6.4 Waiver of Past Defaults..............................................43
SECTION 6.5 Control by Majority..................................................43
SECTION 6.6 Limitation on Suits..................................................43
SECTION 6.7 Rights of Holders to Receive Payment.................................44
SECTION 6.8 Collection Suit by Trustee...........................................44
SECTION 6.9 Trustee May File Proofs of Claim.....................................44
SECTION 6.10 Application of Proceeds..............................................45
SECTION 6.11 Restoration of Rights and Remedies...................................46
SECTION 6.12 Undertaking for Costs................................................46
SECTION 6.13 Rights and Remedies Cumulative.......................................46
SECTION 6.14 Delay or Omission Not Waiver.........................................46
ARTICLE 7
TRUSTEE...............................................................................47
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SECTION 7.1 General..............................................................47
SECTION 7.2 Certain Rights of Trustee............................................47
SECTION 7.3 Individual Rights of Trustee.........................................48
SECTION 7.4 Trustee's Disclaimer.................................................49
SECTION 7.5 Notice of Default....................................................49
SECTION 7.6 Reports by Trustee to Holders........................................49
SECTION 7.7 Compensation and Indemnity...........................................50
SECTION 7.8 Replacement of Trustee...............................................50
SECTION 7.9 Successor Trustee by Merger, Etc.....................................52
SECTION 7.10 Eligibility..........................................................52
SECTION 7.11 Money Held in Trust..................................................52
SECTION 7.12 Right of Trustee in Capacity of Registrar or Paying Agent............52
ARTICLE 8
DISCHARGE OF INDENTURE................................................................52
SECTION 8.1 Defeasance Within One Year of Payment................................52
SECTION 8.2 Defeasance...........................................................53
SECTION 8.3 Covenant Defeasance..................................................54
SECTION 8.4 Application of Trust Money...........................................55
SECTION 8.5 Repayment to Company.................................................55
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS...................................................56
SECTION 9.1 Without Consent of Holders...........................................56
SECTION 9.2 With Consent of Holders..............................................57
SECTION 9.3 Revocation and Effect of Consent.....................................58
SECTION 9.4 Notation on or Exchange of Securities................................59
SECTION 9.5 Trustee to Sign Amendments, Etc......................................59
SECTION 9.6 Conformity with Trust Indenture Act..................................59
ARTICLE 10
SUBORDINATION.........................................................................59
SECTION 10.1 Securities Subordinated to Senior Indebtedness.......................59
SECTION 10.2 No Payment on Securities in Certain Circumstances....................60
SECTION 10.3 Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization
of Company...........................................................61
SECTION 10.4 Securityholders to be Subrogated to Rights of Holders of
Senior Indebtedness..................................................62
iii
SECTION 10.5 Obligations of the Company Unconditional.............................63
SECTION 10.6 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice....................................................64
SECTION 10.7 Application by Trustee of Assets Deposited with It...................64
SECTION 10.8 Subordination Rights Not Impaired by Acts or Omissions of the
Company, the Trustee or Holders of Senior Indebtedness...............64
SECTION 10.9 Securityholders Authorize Trustee to Effectuate Subordination
of Securities........................................................65
SECTION 10.10 Right of Trustee to Hold Senior Indebtedness.........................65
SECTION 10.11 Article Ten Not to Prevent Events of Default.........................66
SECTION 10.12 No Fiduciary Duty of Trustee to Holders of Senior Indebtedness.......66
ARTICLE 11
MISCELLANEOUS.........................................................................66
SECTION 11.1 Trust Indenture Act of 1939..........................................66
SECTION 11.2 Notices..............................................................66
SECTION 11.3 Certificate and Opinion as to Conditions Precedent...................67
SECTION 11.4 Statements Required in Certificate or Opinion........................68
SECTION 11.5 Evidence of Ownership................................................68
SECTION 11.6 Rules by Trustee, Paying Agent or Registrar..........................69
SECTION 11.7 Payment Date Other Than a Business Day...............................69
SECTION 11.8 Governing Law........................................................69
SECTION 11.9 No Adverse Interpretation of Other Agreements........................69
SECTION 11.10 Successors...........................................................69
SECTION 11.11 Duplicate Originals..................................................69
SECTION 11.12 Separability.........................................................69
SECTION 11.13 Table of Contents, Headings, Etc.....................................70
SECTION 11.14 Incorporators, Stockholders, Officers and Directors of Company
Exempt from Individual Liability.....................................70
SECTION 11.15 Judgment Currency....................................................70
SECTION 11.16 Moneys of Different Currencies To Be Segregated......................70
SECTION 11.17 Language of Notices, etc.............................................71
SECTION 11.18 Changes in Exhibits..................................................71
SIGNATURES............................................................................72
EXHIBIT A Forms of Certification To Be Given by Euroclear and Cedel............68
iv
INDENTURE, dated as of _______ ____, 1997 between ▇▇▇▇▇▇▇▇▇, Lufkin &
▇▇▇▇▇▇▇▇, Inc., a Delaware corporation, as the Company, [____________________],
as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
debentures, notes or other evidences of indebtedness to be issued in one or
more series (the "Securities") up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of this Indenture
and to provide, among other things, for the authentication, delivery and
administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement of the Company according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Company and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the respective holders from
time to time of the Securities or of any and all series thereof and of the
coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Agent" means any Registrar, Paying Agent, transfer agent, Exchange
Rate Agent or Authenticating Agent.
"Authorized Newspaper" means a newspaper of general circulation in
the place of publication(which, in the case of The City of New York, will, if
practicable, be The Wall Street Journal (Eastern Edition) and in the case of
London, will, if practicable, be the Financial Times (London Edition))
published in an official language of the country of publication customarily
published each Business Day in the place of publication. If it shall be
impractical in the opinion of the Trustee to make any publication of any
notice required hereby in an Authorized Newspaper, any publication or other
notice in lieu thereof which is made or given with the approval of the Trustee
shall constitute a sufficient publication of such notice.
"Board Resolution" means one or more resolutions of the board of
directors of the Company or any authorized committee thereof certified by the
secretary or an assistant secretary of the Company to have been duly adopted
and to be in full force and effect on the date of certification, and delivered
to the Trustee.
"Business Day" means with respect to any Security 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, regulation or executive order to
close in The City of New York and (i) with respect to Securities denominated
in a currency other than Dollars or ECU, such day that is not a day on which
banking institutions are generally authorized or obligated by law, regulation
or executive order to close in the principal financial center of the country
of the currency, in which the Security is denominated or (ii) with respect to
Securities denominated in ECU, a day that is a non-ECU clearing day as
determined by the ECU Banking Association in Paris. "Business Day" means with
respect to any Authorized Newspaper 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, regulation or executive order to close in the place of
publication of such Authorized Newspaper.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or nonvoting) of such Person's capital stock or equity,
including, without limitation, all Common Stock and Preferred Stock.
"Cedel" means Cedel Bank, S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding
or issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in the first paragraph of
this Indenture until a successor replaces it pursuant to Article 5 of this
Indenture and thereafter means the successor.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at [______________________________].
2
"Default" means any Event of Default as defined in Section 6.1 and
any event that is, or after notice or passage of time or both would be, an
Event of Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities,
the Person designated as Depositary by the Company pursuant to Section 2.3
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or
include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Registered Global Securities of that series.
"Dollar" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and
private debts.
"DLJSC" means ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, a
Delaware corporation and wholly-owned subsidiary of the Company or any
Subsidiary of the Company which shall hereafter succeed by merger or otherwise
to all or substantially all of the business of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation.
"ECU" means the European Currency Unit that is from time to time used
as the unit of account of the European Communities. If changes are made by the
European Communities to the nature or composition of the ECU, references
herein to the ECU shall be construed as references to the ECU as so changed.
References herein to the ECU as a currency in its own right shall be construed
as including references to the Euro.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
Office, or its successor, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Rate Agent" means any entity appointed by the Company
pursuant to Section 2.5 to determine conversion rates and equivalents among
currencies or currency units.
"Exchange Rate Officers' Certificate" means a certificate setting
forth (i) the applicable Official Currency Unit Exchange Rate and (ii) the
Dollar or Foreign Currency or currency unit amounts of principal, premium, if
any, and interest, if any, respectively (on an aggregate basis and on the
basis of a Security having a principal amount of 1,000 units in the relevant
currency or currency unit), payable on the basis of such Official Currency
Unit Exchange Rate, sent (in the case of a telex) or executed (in the case of
a certificate) by the Controller or any Assistant Controller or by the
Treasurer or any Assistant Treasurer of the Company and delivered to the
Trustee; such certificate need not comply with Section 11.3.
3
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America and shall include the ECU and
the Euro and includes any currency unit.
"GAAP" means generally accepted accounting principles in the United
States of America at the date of any computation required or permitted
hereunder.
"Holder" or "Securityholder" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed or as it may
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established as contemplated pursuant to Sections 2.1
and 2.3.
"Non-U.S. person" means a non-U.S. person for purposes of the United
States Internal Revenue Code.
"Officer" means, with respect to the Company, the chairman of the
board of directors, the president, the executive vice president, any senior
vice president, the treasurer or any assistant treasurer, or the secretary or
any assistant secretary.
"Officers' Certificate" means a certificate signed in the name of the
Company (i) by the chairman of the board of directors, the president, the
executive vice president or any senior vice president and (ii) by the
treasurer or any assistant treasurer, or the secretary or any assistant
secretary, complying with Section 11.4 and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act and
include (except as otherwise expressly provided in this Indenture) the
statements provided in Section 11.4.
"Official Currency Unit Exchange Rate" means, with respect to any
payment to be made hereunder, the exchange rate between the relevant currency
unit and the currency or currency unit of payment calculated by the Exchange
Rate Agent for the Securities of the relevant series (in the case of ECU,
reported by the Commission of the European Communities and on the date hereof
based on the rates in effect at 2:30 p.m., Brussels time, on the exchange
markets of the Component Currencies of ECU), on the Business Day (in the city
in which such Exchange Rate Agent has its principal office) immediately
preceding delivery of any Exchange Rate Officers' Certificate.
"Opinion of Counsel" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company, complying with Section
11.4. Each such opinion shall
4
comply with Section 314 of the Trust Indenture Act and include the
statements provided in Section 11.4, if and to the extent required thereby.
"Original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of authentication of such Security or (b) the date of
any Security (or portion thereof) for which such Security was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable
upon redemption, repayment or a declaration of acceleration of the maturity
thereof pursuant to Section 6.2.
"Paying Agent" means any entity appointed by the Company pursuant to
Section 2.5 to accept Securities presented for payment and to pay interest, if
any, on Securities.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the Principal of and interest, if any,
on the Securities of that series are payable as specified in accordance with
Section 2.3.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of the Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"Principal" of a Security means the principal amount of, and, unless
the context indicates otherwise, includes any premium payable on, the
Security.
"Registered Global Security" means a Security evidencing all or a
part of a series of Registered Securities, issued to the Depositary for such
series in accordance with Section 2.2, and bearing the legend prescribed in
Section 2.2.
5
"Registered Security" means any Security registered on the Security
Register (as defined in Section 4.2) (including without limitation any
Security in temporary or definitive global registered form).
"Registrar" means the entity appointed by the Company pursuant to
Section 2.5 to accept Securities for registration of transfer or exchange.
"Responsible Officer" means, when used with respect to the Trustee,
any officer within the Corporate Trust Office including any Vice President,
Managing Director, Assistant Vice President,Secretary, Assistant Secretary or
Assistant Treasurer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above-designated officers
and also, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge and familiarity with
the particular subject.
"Securities" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture and, unless the context indicates otherwise, shall include any
coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means the principal of and premium, if any, and
interest on (a) all indebtedness of the Company, whether outstanding on the
date of this Indenture or thereafter created, (i) for money borrowed by the
Company, (ii) for money borrowed by, or obligations of, others and either
assumed or guaranteed, directly or indirectly, by the Company, (iii) in
respect of letters of credit and acceptances issued or made by banks, or (iv)
constituting purchase money indebtedness, or indebtedness secured by property
included in the property, plant and equipment accounts of the Company at the
time of the acquisition of such property by the Company, for the paymentof
which the Company is directly liable, and (b) all deferrals, renewals,
extensions and refunding of, and amendments, modifications and supplements to,
any such indebtedness. As used in the preceding sentence, the term "purchase
money indebtedness" means indebtedness evidenced by a note, debenture, bond or
other instrument (whether or not secured by any lien or other security
interest) issued or assumed as all or a part of the consideration for the
acquisition of property, whether by purchase, merger, consolidation or
otherwise, unless by its terms such indebtedness is subordinated to other
indebtedness of the Company. Notwithstanding anything to the contrary in this
Indenture or the Securities, Senior Indebtedness shall not include, (i) any
indebtedness of the Company which, by its terms or the terms of the instrument
creating or evidencing it, is subordinate in right of payment to or pari passu
with the Securities or (ii) any indebtedness of the Company to a Subsidiary of
the Company.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by such Person or one or more
other Subsidiaries of such Person, or by the Person and one or more
Subsidiaries.
6
"Trustee" means the party named as such in the first paragraph of
this Indenture until a successor replaces it in accordance with the provisions
of Article 7 and thereafter means such successor and if at any time there is
more than one such Trustee, "Trustee" as used with respect to the Securities
of any Series shall mean the Trustee with respect to Securities of that
Series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as it may be amended from time to time.
"UCC" means the Uniform Commercial Code, as in effect in each
applicable jurisdiction.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, and shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of
a depository receipt; provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest
on or principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Yield to Maturity" means, as the context may require, the yield to
maturity (i) on a series of Securities or (ii) if the Securities of a series
are issuable from time to time, on a Security of such series, calculated at
the time of issuance of such series in the case of clause (i) or at the time
of issuance of such Security of such series in the case of clause (ii), or, if
applicable, at the most recent redetermination of interest on such series or
on such Security, and calculated in accordance with the constant interest
method or such other accepted financial practice as is specified in the terms
of such Security.
SECTION 1.2 Other Definitions. Each of the following terms is defined
in the section set forth opposite such term:
7
Term Section
Authenticating Agent 2.2
cash transaction 7.3
Component Currency 2.16
Conversion Date 2.16(e)
Currency Equivalent 2.16(g)
Currency Unit Equivalent 2.16(h)
DLJSC 4.3
Event of Default 6.1
Exchange Date 2.10
Judgment Currency 11.15
mandatory sinking fund payment 3.5
Market Exchange Rate 2.16(i)
optional sinking fund payment 3.5
Permitted Liens 4.3
record date 2.4
Required Currency 11.15
Security Register 4.2
self-liquidating paper 7.3
sinking fund payment date 3.5
Specified Amount 2.16(i)
Substitute Currency 2.16(a)
tranche 2.14
Valuation Date 2.16(c)
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture.
The following terms used in this Indenture that are defined by the Trust
Indenture Act have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
8
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined
herein have the meanings assigned to them therein. If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
SECTION 1.4 Rules of Construction. Unless the context otherwise
requires:
(i) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(ii) words in the singular include the plural, and words in the
plural include the singular;
(iii) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision;
(iv) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated; and
(v) use of masculine, feminine or neuter pronouns should not be
deemed a limitation, and the use of any such pronouns should be construed to
include, where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating. The Securities of each series shall be
substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law, or
with any rules of any securities exchange or usage, all as may be determined
by the officers executing such Securities as evidenced by their execution of
the Securities. Unless otherwise so established, Unregistered Securities shall
have coupons attached.
SECTION 2.2 Execution and Authentication. The chairman of the board
of directors, the president, the executive vice president or any senior vice
president and the treasurer or any assistant treasurer or the secretary or any
assistant secretary shall execute the Securities (other
9
than coupons) for the Company by facsimile or manual signature in the name
and on behalf of the Company. The seal of the Company, if any, shall be
reproduced on the Securities. If an Officer whose signature is on a Security
no longer holds that office at the time the Security is authenticated, the
Security shall nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent (the "Authenticating Agent") to authenticate Securities
(other than coupons). The Authenticating Agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent.
A Security (other than coupons) shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on
the Security. The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series having
attached thereto appropriate coupons, if any, executed by the Company to the
Trustee for authentication together with the applicable documents referred to
below in this Section, and the Trustee shall thereupon authenticate and make
available for delivery such Securities to or upon the written order of the
Company. In authenticating any Securities of a series, the Trustee shall be
entitled to receive prior to the first authentication of any Securities of
such series, and (subject to Article 7) shall be fully protected in relying
upon, unless and until such documents have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental
indenture referred to in Sections 2.1 and 2.3 by or pursuant to which
the forms and terms of the Securities of that series were
established;
(2) an Officers' Certificate setting forth the form or forms
and terms of the Securities, stating that the form or forms and terms
of the Securities of such series have been, or will be when
established in accordance with such procedures as shall be referred
to therein, established in compliance with this Indenture; and
(3) an Opinion of Counsel substantially to the effect that
the form or forms and terms of the Securities of such series have
been, or will be when established in accordance with such procedures
as shall be referred to therein, established in compliance with this
Indenture and that the supplemental indenture, to the extent
applicable, and Securities have been duly authorized and, if executed
and authenticated in accordance with the provisions of the Indenture
and delivered to and duly paid for by the purchasers thereof on the
date of such opinion, would be entitled to the benefits of the
Indenture and would be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, subject to bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting creditors'
rights
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generally, general principles of equity, and such other matters as
shall be specified therein.
If the Company shall establish pursuant to Section 2.3 that the
Securities of a series or a portion thereof are to be issued in the form of
one or more Registered Global Securities, then the Company shall execute and
the Trustee shall authenticate and make available for delivery one or more
Registered Global Securities that (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 in such form and not yet canceled, (ii) shall be
registered in the name of the Depositary for such Registered Global Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by
the Trustee to such Depositary or its custodian or pursuant to such
Depositary's instructions and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary."
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and each such
series shall rank junior in right of payment, to the extent provided herein,
to all Senior Indebtedness. There shall be established in or pursuant to a
Board Resolution or one or more indentures supplemental hereto, prior to the
initial issuance of Securities of any series (subject to the last sentence of
this Section 2.3),
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the series from the Securities of
all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture and any limitation on the ability of the Company
to increase such aggregate principal amount after the initial
issuance of the Securities of that series (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, or upon redemption of, other Securities
of the series pursuant hereto);
(3) the date or dates on which the Principal of the
Securities of the series is payable (which date or dates may be fixed
or extendible);
(4) the rate or rates (which may be fixed or variable) per
annum at which the Securities of the series shall bear interest, if
any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered
Securities) on which a record shall be taken for the determination of
Holders
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to whom interest is payable and/or the method by which such rate or
rates or date or dates shall be determined;
(5) if other than as provided in Section 4.2, the place or
places where the Principal of and any interest on Securities of the
series shall be payable, any Registered Securities of the series may
be surrendered for exchange, notices, demands to or upon the Company
in respect of the Securities of the series and this Indenture may be
served and notice to Holders may be published;
(6) the right, if any, of the Company to redeem Securities
of the series, in whole or in part, at its option and the period or
periods within which, the price or prices at which and any terms and
conditions upon which Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem,
purchase or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of
a Holder thereof and the price or prices at which and the period or
periods within which and any of the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(9) if other than the entire principal amount thereof, the
portion of the principal amount of Securities of the series which
shall be payable upon declaration of acceleration of the maturity
thereof;
(10) the currency or currencies, or currency unit or units,
in which the Securities are denominated and in which the Principal of
or interest, if any, on the Securities is payable and, if the
Principal of or interest, if any, on any of the Securities of the
series is to be payable at the election of the Company or Holder
thereof, or under some or all other circumstances, in a currency or
currencies, or currency unit or 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, or the other circumstances under which any of the Securities
are to be so payable, including without limitation the application of
Section 2.16(b) and any deletions to, modifications of or additions
to the provisions thereof, and any provision requiring the Holder to
bear currency exchange costs by deduction from such payments;
(11) if the amount of payments of Principal of or interest,
if any, on any of the Securities of the series may be determined with
reference to an index based on (i) a currency or currencies or
currency unit or units other than that in which such Securities
12
are stated to be payable or (ii) any method, not inconsistent with
the provisions of this Indenture, specified in or pursuant to such
Board Resolution, then in each case (i) and (ii) the manner in which
such amounts shall be determined;
(12) if payment of the Principal of and interest on the
Securities of the series shall be payable in one or more Foreign
Currencies or currency units, the manner in which any such currency
shall be valued against other currencies in which any other
Securities shall be payable and the Exchange Rate Agent, if any, for
such series;
(13) whether the Securities of the series or any portion
thereof will be issuable as Registered Securities (and if so, whether
such Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without coupons), or any combination
of the foregoing, any restrictions applicable to the offer, sale or
delivery of Registered or Unregistered Securities or the payment of
interest thereon and, if other than as provided herein, the terms
upon which Unregistered Securities of any series may be exchanged for
Registered Securities of such series and vice versa; and whether any
Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be
issuable in definitive global form with or without coupons and, if
so, whether beneficial owners of interests in any such definitive
global Security may exchange such interests for Securities of such
series and of like tenor and, if so, the authorized form and
denomination and the circumstances under which and the place or
places where any such exchange may occur, if other than in the manner
provided in Section 2.7.
(14) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(15) whether and under what circumstances the Company will
pay additional amounts on the Securities of the series held by
non-U.S. persons in respect of any tax, assessment or governmental
charge withheld or deducted and, if so, whether the Company will have
the option to redeem such Securities rather than pay such additional
amounts;
(16) any trustees, depositaries, authenticating or paying
agents, transfer agents or the registrar or any other agents with
respect to the Securities of the series;
(17) provisions, if any, for the defeasance of the
Securities of the series (including provisions permitting defeasance
of less than all Securities of the series), which provisions may be
in addition to, in substitution for, or in modification of (or any
combination of the foregoing) the provisions of Article 8;
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(18) if the Securities of the series are issuable in whole
or in part as one or more Registered Global Securities, the identity
of the Depositary for such Registered Global Security or Securities;
(19) the Person to whom any interest on any Security of the
series shall be payable, if other than the Person in whose name that
Security is registered at the close of business on the record date
for such interest, the manner in which, or the person to whom, any
interest on any Unregistered Security of the series shall be payable,
if otherwise than uponpresentation and surrender of the coupons
appertaining thereto as they severally mature and the extent to
which, or the manner in which, any interest payable on a temporary
global Security on an interest payment date will be paid if other
than in the manner provided in Section 2.10;
(20) any other events of default or covenants with respect
to the Securities of the series; and
(21) any other terms of the Securities of the series (which
terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series and coupons, if any, appertaining
thereto shall be substantially identical, except in the case of Registered
Securities as to date and denomination, except in the case of any Periodic
Offering and except as may otherwise be provided by or pursuant to the Board
Resolution referred to above or as set forth in any such indenture
supplemental hereto. All Securities of any one series need not be issued at
the same time and may be issued from time to time, consistent with the terms
of this Indenture, if so provided by or pursuant to such Board Resolution or
in any such indenture supplemental hereto and any forms and terms of
Securities to be issued from time to time may be completed and established
from time to time prior to the issuance thereof by procedures described in
such Board Resolution or supplemental indenture.
SECTION 2.4 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any integral 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 Company executing the same may determine, as evidenced by
their execution thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest shall be payable on the dates, established as contemplated by Section
2.3.
14
Except as otherwise established pursuant to Section 2.3, the person
in whose name any Registered Security of any series is registered at the close
of business on any record date applicable to a particular series with respect
to any interest payment date for such series shall be entitled to receive the
interest, if any, payable on such interest payment date notwithstanding any
transfer or exchange of such Registered Security subsequent to the record date
and prior to such interest payment date, except if and to the extent the
Company shall default in the payment of the interestdue on such interest
payment date for such series, in which case the provisions of Section 2.13
shall apply. The term "record date" as used with respect to any interest
payment date (except a date for payment of defaulted interest) for the
Securities of any series shall mean the date specified as such in the terms of
the Registered Securities of such series established as contemplated by
Section 2.3, or, if no such date is so established, the fifteenth calendar day
immediately preceding such interest payment date, whether or not such record
date is a Business Day.
SECTION 2.5 Agents Generally. The Company shall enter into an
appropriate agency agreement with any Agent not a party to this Indenture. The
agreement shall implement the provisions of this Indenture and the Trust
Indenture Act that relate to such Agent. The Company shall give prompt written
notice to the Trustee of the name and address of any Agent and any change in
the name or address of an Agent. If the Company fails to maintain a Registrar
or Paying Agent, the Trustee shall act as such. The Company may remove any
Agent upon written noticeto such Agent and the Trustee; provided that no such
removal shall become effective until (i) the acceptance of an appointment by a
successor Agent to such Agent as evidenced by an appropriate agency agreement
entered into by the Company and such successor Agent and delivered to the
Trustee or (ii) notification to the Trustee that the Trustee shall serve as
such Agentuntil the appointment of a successor Agent in accordance with clause
(i) of this proviso. The Company or any affiliate of the Company may act as
Paying Agent or Registrar; provided that neither the Company nor an affiliate
of the Company shall act as Paying Agent in connection with the defeasance of
the Securities or the discharge of this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar, Paying
Agent, Authenticating Agent and Exchange Rate Agent. If, at any time, the
Trustee is not the Registrar, the Registrar shall make available to the
Trustee ten days prior to each interest payment date and at such other times
as the Trustee may reasonably request the names and addresses of the Holders
as they appear in the Security Register.
SECTION 2.6 Paying Agent to Hold Money in Trust. Not later than 10:00
a.m., each Paying Agent's local time, on each due date of any Principal or
interest on any Securities, the Company shall deposit with each Paying Agent
money in immediately available funds sufficient to pay any Principal or
interest payable through such Paying Agent. The Company shall require each
Paying Agent other than the Trustee to agree in writing that such Paying Agent
shall hold in trust for the benefit of the Holders of such Securities or the
Trustee all money held by the Paying Agent for the payment of Principal of and
interest on such Securities and shall promptly notify the Trustee of any
default by the Company in making any such payment. The Company at any
15
time may require a Paying Agent to pay all money held by it to the Trustee and
account for any funds disbursed, and the Trustee may at any time during the
continuance of any payment default, upon written request to a Paying Agent,
require such Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed. Upon doing so, the Paying Agent shall have no
further liability for the money so paid over to the Trustee. If the Company or
any affiliate of the Company acts as Paying Agent, it will, on or before each
due date of any Principal of or interest on any Securities, segregate and hold
in a separate trust fund for the benefit of the Holders thereof a sum of money
sufficient to pay such Principal or interest so becoming due until such sum of
money shall be paid to such Holders or otherwise disposed of as provided in
this Indenture, and will promptly notify the Trustee in writing of its action
or failure to act as required by this Section.
SECTION 2.7 Transfer and Exchange. Unregistered Securities (except
for any temporary global Unregistered Securities) and coupons (except for
coupons attached to any temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth below)
may be exchanged for a Registered Security or Registered Securities of such
series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be exchanged
at the agency of the Company that shall be maintained for such purpose in
accordance with Section 4.2 and upon payment, if the Company shall so require,
of the charges hereinafter provided. If the Securities of any series are
issued in both registered and unregistered form, except as otherwise
established pursuant to Section 2.3, at the option of the Holder thereof,
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and tenor having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be
maintained for such purpose in accordance with Section 4.2, with, in the case
of Unregistered Securities that have coupons attached, all unmatured coupons
and all matured coupons in default thereto appertaining, and upon payment, if
the Company shall so require, of the charges hereinafter provided. At the
option of the Holder thereof, if Unregistered Securities of any series,
maturity date, interest rate and original issue date are issued in more than
one authorized denomination, except as otherwise established pursuant to
Section 2.3, such Unregistered Securities may be exchanged for Unregistered
Securities of such series and tenor having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be
maintained for such purpose in accordance with Section 4.2, with, in the case
of Unregistered Securities that have coupons attached, all unmatured coupons
and all matured coupons in default thereto appertaining, and upon payment, if
the Company shall so require, of the charges hereinafter provided. If the
Holder of an Unregistered Security is unable to produce any such unmatured
coupon or coupons or matured coupon or coupons in default, an exchange of such
Unregistered Security may be effected if the Unregistered Securities are
accompanied by payment in funds acceptable to the Company in an amount equal
to the face amount of such
16
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there is furnished to the
Company and the Trustee such security or indemnity as they may require to hold
each Holder of such coupon or coupons and the Company, the Trustee and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing coupon in respect of which such
a payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that, interest represented by
coupons shall be payable only upon presentation and surrender of such coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case an Unregistered Security of any series is surrendered at
any such office or agency in exchange for a Registered Security of the same
series and like tenor after the close of business at such office or agency on
(i) any record date and before the opening of business at such office or
agency on the relevant interest payment date, or (ii) any special record date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Unregistered Security
shall be surrendered without the coupon relating to such interest payment date
or proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such interest payment
date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Unregistered Security, but
will be payable only to the Holderof such coupon when due in accordance with
the provisions of this Indenture. Registered Securities of any series may not
be exchanged for Unregistered Securities of such series. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Securities
which the Holder making the exchange is entitled to receive.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee duly executed by, the holder or his attorney duly
authorized in writing.
The Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
Notwithstanding the foregoing, except as otherwise established
pursuant to Section 2.3, any definitive global Unregistered Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a definitive global Unregistered Security are entitled to
exchange such interests for Securities of such series and of like tenor and
principal amount of another authorized form and denomination, as specified as
contemplated by Section 2.3, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged,
the Company shall deliver to the Trustee definitive Securities in aggregate
principal amount equal to the principal amount of such definitive global
Unregistered Security, executed by the Company. On or after the earliest date
on which such interests may be so exchanged, such definitive global
Unregistered Security shall be surrendered
17
by the Depositary with respect thereto to the Trustee, as the Company's agent
for such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such definitive global Unregistered
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such definitive global Unregistered Securities to be exchanged which, unless
the Securities of the series are not issuable both as Unregistered Securities
and as Registered Securities, as specified as contemplated by Section 2.3,
shall be in the form of Unregistered Securities or Registered Securities, or
any combination thereof, as shall be specified by the beneficial owner
thereof; provided, however, that no such exchanges may occur during a period
beginning at the opening of business 15 Business Days before any selection of
Securities of that series to be redeemed and ending on the relevant redemption
date; and provided further that no Unregistered Security delivered in exchange
for a portion of a definitive global Security shall be mailed or otherwise
delivered to any location in the United States. If a Registered Security is
issued in exchange for any portion of a definitive global Unregistered
Security after the close of business at the office or agency where such
exchange occurs on (i) any record date and before the opening of business at
such officeor agency on the relevant interest payment date, or (ii) any
special record date and before the opening of business at such office or
agency on the related proposed date for payment of DefaultedInterest, interest
or Defaulted Interest, as the case may be, will not be payable on such
interest payment date or proposed date for payment, as the case may be, in
respect of such Registered Security, but will be payable on such interest
payment date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such definitive global
Unregistered Security is payable in accordance with the provisions of this
Indenture.
Notwithstanding any other provision of this Section 2.7, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global Securities of
any series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary
eligible under applicable law with respect to such Registered Global
Securities. If a successor Depositary eligible under applicable law for such
Registered Global Securities is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility,
the Company will execute, and the Trustee, upon receipt of the Company's order
for theauthentication and delivery of definitive Registered Securities of such
series and tenor, will authenticate and make available for delivery Registered
Securities of such series and tenor, in
18
any authorized denominations, in an aggregate principal amount equal to the
principal amount of such Registered Global Securities, in exchange for such
Registered Global Securities.
The Company may at any time and in its sole discretion determine that
any Registered Global Securities of any series shall no longer be maintained
in global form. In such event the Company will execute, and the Trustee, upon
receipt of the Company's order for the authentication and delivery of
definitive Registered Securities of such series and tenor, will authenticate
and make available for delivery, Registered Securities of such series and
tenor in any authorized denominations, in an aggregate principal amount equal
to the principal amount of such Registered Global Securities, in exchange for
such Registered Global Securities.
Any time the Registered Securities of any series are not in the form
of Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
Registered Securities without the legend required by Section 2.2 and the
Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.3 with respect to
any Registered Global Security, the Depositary for such Registered Global
Security may surrender such Registered Global Security in exchange in whole or
in part for Registered Securities of the same series and tenor in definitive
registered form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, without service charge,
(i) to the Person specified by such Depositary new
Registered Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in
a denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the
aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Registered Securities issued in exchange for a Registered Global
Security pursuant to this Section 2.7 shall be registered in such names and in
such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Company or the
Trustee. The Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
19
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any agent of
the Company or the Trustee shall be required to exchange any Unregistered
Security for a Registered Security if such exchange would result in adverse
Federal income tax consequences to the Company (such as, for example, the
inability of the Company to deduct from its income, as computed for Federal
income tax purposes, the interest payable on the Unregistered Securities)
under then applicable United States Federal income tax laws. The Trustee and
any such agent shall be entitled to conclusively rely on an Officers'
Certificate or an Opinion of Counsel in determining such result.
The Registrar shall not be required (i) to issue, authenticate,
register the transfer of or exchange Securities of any series for a period of
15 days before a selection of such Securities to be redeemed or (ii) to
register the transfer of or exchange any Security selected for redemption in
whole or in part.
SECTION 2.8 Replacement Securities. If a defaced or mutilated
Security of any series is surrendered to the Trustee or if a Holder claims
that its Security of any series has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security of such series and tenor and principal amount bearing a number not
contemporaneously outstanding. An indemnity bond must be furnished that is
sufficient in the judgment of both the Trustee and the Company to protect the
Company, the Trustee and any Agent from any loss that any of them may suffer
if a Security is replaced. The Company may charge such Holder for its expenses
and the expenses of the Trustee (including without limitation attorneys' fees
and expenses) in replacing a Security. In case any such mutilated, defaced,
lost, destroyed or wrongfully taken Security has become or is about to become
due and payable, the Company in its discretion may pay such Security instead
of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture equally and
proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder.
To the extent permitted by law, the foregoing provisions of this
Section are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities.
SECTION 2.9 Outstanding Securities. Securities outstanding at any
time are all Securities that have been authenticated by the Trustee except for
those Securities canceled by it, those Securities delivered to it for
cancellation, those paid pursuant to Section 2.8 and those Securities
described in this Section as not outstanding.
20
If a Security is replaced pursuant to Section 2.8, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
If the Paying Agent (other than the Company or an affiliate of the
Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to
be redeemed or repurchased on such date, then on and after such date such
Securities shall cease to be outstanding and interest on them shall cease to
accrue.
In determining whether the Holders of the requisite principal amount
of the outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or whether a quorum is present
at a meeting of Holders of Securities or the number of votes entitled to be
cast by each Holder of a Security in respect of such Security at any such
meeting, the principal amount of a Security denominated in a Foreign Currency
or currency unit shall be the Dollar equivalent obtained by converting the
specified Foreign Currency or currency unit into Dollars at the Market
Exchange Rate on the date of such determination (or, in the case of a Security
denominated in a currency unit for which there is no Market Exchange Rate, the
Dollar equivalent obtained by adding together the results obtained by
converting the Specified Amount of each Component Currency into Dollars at the
Market Exchange Rate for each such Component Currency on the date of such
determination) of the principal amount of such Security.
A Security does not cease to be outstanding because the Company or
one of its affiliates holds such Security, provided, however, that, in
determining whether the Holders of the requisite principal amount of the
outstanding Securities shall have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the
Company or any affiliate of the Company shall be disregarded and deemed not to
be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities as to which a Responsible Officer
of the Trustee has received written notice to be so owned shall be so
disregarded. Any Securities so owned which are pledged by the Company, or by
any affiliate of the Company, as security for loans or other obligations,
otherwise than to another such affiliate of the Company, shall be deemed to be
outstanding, if the pledgee is entitled pursuant to the terms of its pledge
agreement and is free to exercise in its discretion the right to vote such
securities, uncontrolled by the Company or by any such affiliate.
SECTION 2.10 Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute, and the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions,
21
substitutions and other variations as the officers executing such Securities
may determine, as evidenced conclusively by their execution of such
Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company maintained
pursuant to Section 4.2 in a Place of Payment for such series for the purpose
of exchanges of Securities of such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons) the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
aggregate principal amount of definitive Securities of the same series and of
like tenor or authorized denominations; provided, however, that, unless
otherwise specified as contemplated by Section 2.3, no definitive Unregistered
Security shall be delivered in exchange for a temporary Registered Security;
and provided further that a definitive Unregistered Security shall be
delivered in exchange for a temporary Unregistered Security only in compliance
with the conditions set forth in Section 2.7.
If temporary Unregistered Securities of any series are issued in
global form, such temporary global Unregistered Security shall, unless
otherwise specified as contemplated by Section 2.3, be delivered to the London
office of a depositary, for the benefit of Euroclear and Cedel, for credit to
the respective accounts of the beneficial owners of interest in such
Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Company.
On or after the Exchange Date such temporary global Security shall be
surrendered by the Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series
of any authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in
bearer form, registered form, definitive global form, or any combination
thereof, as specified as contemplated by Section 2.3, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof;
provided, however, that, unless otherwise specified as contemplated by Section
2.3, upon such presentation by the Depositary, such temporary global Security
shall be accompanied by a certificate dated the Exchange Date or a
22
subsequent date and signed by Euroclear as to the portion of such temporary
global Security held for its account then to be exchanged and a certificate
dated the Exchange Date or a subsequent date and signed by Cedel as to the
portion of such temporary global Security held for its account then to be
exchanged, each in the form set forth in Exhibit A.2 to this Indenture; and
provided further that definitive Unregistered Securities (including a
definitive global Unregistered Security) shall be delivered in exchange for a
portion of a temporary global Security only in compliance with the
requirements of Section 2.7.
Unless otherwise specified as contemplated by Section 2.3, the
interest of a beneficial owner of Securities of a series in a temporary global
Unregistered Security shall be exchanged for definitive Unregistered
Securities of the same series and of like tenor following the Exchange Date
when the beneficial owner instructs Euroclear or Cedel, as the case may be, to
request such exchange on his behalf and delivers to Euroclear or Cedel, as the
case may be, a certificate substantially in the form set forth in Exhibit A.1
to this Indenture, dated no earlier than 15 days prior to the Exchange Date,
copies of which certificate shall be available from the offices of Euroclear,
Cedel, the Trustee, any Authenticating Agent appointed for such series of
Securities and any Paying Agent appointed for such series of Securities.
Unless otherwise specified as contemplated by Section 2.3, any such exchange
shall be made free of charge to the beneficial owners of such temporary global
Security, except that a Person receiving definitive Securities must bear the
cost of insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Securities in person at the
offices of Euroclear or Cedel. The definitive Unregistered Securities to be
delivered in exchange for any portion of a temporary global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series and
of like tenor authenticated and delivered hereunder.
SECTION 2.11 Cancellation. The Company at any time may deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and
may deliver to the Trustee for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold. The
Registrar, any transfer agent and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee shall cancel all Securities surrendered for transfer, exchange,
payment or cancellation and shall deliver such canceled Securities to the
Company. The Company may not issue new Securities to replace Securities it has
paid in full or delivered to the Trustee for cancellation.
SECTION 2.12 CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP," "CINS" and "ISIN" numbers (if then generally in use), and the
Trustee shall use CUSIP, CINS or ISIN numbers, as the case may be, in notices
of redemption or exchange as a convenience to Holders and no representation
shall be made as to the correctness of such
23
numbers either as printed on the Securities or as contained in any notice of
redemption or exchange.
SECTION 2.13 Defaulted Interest. If the Company defaults in a payment
of interest on the Securities, it shall pay, or shall deposit with the Paying
Agent money in immediately available funds sufficient to pay, the defaulted
interest plus (to the extent lawful) any interest payable on the defaulted
interest (as may be specified in the terms thereof, established pursuant to
Section 2.3) to the Persons who are Holders on a subsequent special record
date, which shall mean the 15th day next preceding the date fixed by the
Company for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before such special record date, the Company
shall mail to each Holder and to the Trustee a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
SECTION 2.14 Series May Include Tranches. A series of Securities may
include one or more tranches (each a "tranche") of Securities, including
Securities issued in a Periodic Offering. The Securities of different tranches
may have one or more different terms, including authentication dates and
public offering prices, but all the Securities within each such tranche shall
have identical terms, including authentication date and public offering price.
Notwithstanding any other provision of this Indenture, with respect to
Sections 2.2 (other than the fourth paragraph thereof) through 2.4, 2.7, 2.8,
2.10, 3.1 through 3.5, 4.2, 6.1 through 6.14, 8.1 through 8.5 and 9.2, if any
series of Securities includes more than one tranche, all provisions of such
sections applicable to any series of Securities shall be deemed equally
applicable to each tranche of any series of Securities in the same manner as
though originally designated a series unless otherwise provided with respect
to such series or tranche pursuant to Section 2.3. In particular, and without
limiting the scope of the next preceding sentence, any of the provisions of
such sections which provide for or permit action to be taken with respect to a
series of Securities shall also be deemed to provide for and permit such
action to be taken instead only with respect to Securities of one or more
tranches within that series (and such provisions shall be deemed satisfied
thereby), even if no comparable action is taken with respect to Securities in
the remaining tranches of that series.
SECTION 2.15 Computation of Interest. Except as otherwise specified
pursuant to Section 2.3 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 2.16 Currency and Manner of Payment in Respect of Securities.
The provisions of this Section shall apply to the Securities of any series
unless otherwise provided as contemplated by Section 2.3.
(a) The following payment provisions shall apply to any
Registered Security of any series denominated in a Foreign Currency
or any currency unit, including without limitation ECU, except as
provided in paragraph (b) below:
24
(1) Except as provided in subparagraph (a)(2) or in
paragraph (e) below, payment of Principal of such Registered
Security will be made at the Place of Payment by delivery of
a check in the currency or currency unit in which the
Security is denominated on the payment date against
surrender of such Registered Security,and any interest on
any Registered Security will be paid at the Place of Payment
by mailing a check in the currency or currency unit in which
such interest is payable (which shall be the same as that in
which the Security is denominated unless otherwise provided)
to the Person entitled thereto at the address of such Person
appearing on the Security Register.
(2) Payment of the Principal of, and interest, if
any, on such Security may also, subject to applicable laws
and regulations, be made at such other place or places as
may be designated by the Company by any appropriate method.
(b) With respect to any Registered Security of any series
denominated in any currency unit, including without limitation ECU,
if the following provisions (or any substitute therefore, or addition
thereto, not inconsistent with this Indenture) are established
pursuant to Section 2.3, and if the Company has not, before the
delivery of the election referred to in clause (1) below, deposited
funds or securities in compliance with clause (i) or (if specified
pursuant to Section 2.3) clause (ii) of Section 8.1 the following
payment provisions shall apply to any payment to be made prior to the
giving of any notice to Holders of any election to redeem pursuant to
Section 3.2, except as otherwise provided in paragraphs (e) and (f)
below:
(1) A Holder of Securities of a series shall have
the option to elect to receive payments of Principal of and
interest, if any, on such Securities in a currency or
currency unit (including Dollars), other than that in which
the Security is denominated, such election, as designated in
the certificates for such Securities (or as provided by
Section 2.3, or a supplemental indenture thereto with
respect to uncertificated securities), shall be made by
delivering to the Trustee a written election not later than
the close of business in New York, New York, on the day 15
days prior to the applicable payment date. Such election
will remain in effect for such Holder until changed by the
Holder by written notice to the Trustee (but any such
written notice must be received by the Trustee not later
than the close of business on the day 15 days prior to the
next payment date to be effective for the payment to be made
on such payment date and no such change may be made with
respect to payments to be made on any Security of such
series with respect to which notice of redemption has been
given by the Company pursuant to Article Three). Any Holder
of any such Security who shall not have delivered any such
election to the Trustee in accordance with this paragraph
(b) will be paid the amount due on the applicable payment
date in the relevant currency unit as provided in paragraph
(a) of this Section. Payment of Principal shall be made on
the payment date therefor against surrender of such
Security. Payment of
25
Principal and interest, if any, shall be made at the Place
of Payment by mailing at such location a check, in the
applicable currency or currency unit, to the Holder entitled
thereto at the address of such Holder appearing on the
Security Register.
(2) Payment of the Principal of, and interest, if
any, on such Security may also, subject to applicable laws
and regulations, be made at such other place or places as
may be designated by the Company by any appropriate method.
(c) Payment of the Principal of and interest, if any, on any
Unregistered Security will be made, except as provided in Section
2.10 with respect to temporary global Securities, unless otherwise
specified pursuant to Section 2.3, and/or Section 9.1(7), at such
place or places outside the United States as may be designated by the
Company pursuant to any applicable laws or regulations by any
appropriate method in the currency or currencies or currency unit or
units in which the Security is payable (except as provided in
paragraph (e) below) on the payment date therefor against surrender
of the Unregistered Security, in the case of payment of Principal or
the relevant coupon, in the case of payment of interest, if any, to a
Paying Agent designated for such series pursuant to Section 4.1.
(d) Not later than 10 Business Days (with respect to any
Place of Payment) prior to each payment date, the Trustee shall
deliver to the Company a copy of its record of the respective
aggregate amounts of Principal of, and interest, if any, on the
Securities to be made on such payment date, in the currency or
currency unit in which each of the Securities is payable, specifying
the amounts so payable in respect of Registered Securities and
Unregistered Securities and in respect of the Registered Securities
as to which the Holders of Securities denominated in any currency
unit shall have elected to be paid in another currency or currency
unit as provided in paragraph (b) above. If the election referred to
in paragraph (b) above has been provided for pursuant to Section 2.3,
and if at least one Holder has made such election, then, not later
than the fifth Business Day (with respect to any Place of Payment)
prior to the applicable payment date the Company will deliver to the
Trustee an Exchange Rate Officers' Certificate in respect of the
Dollar or Foreign Currency or currency unit payments to be made on
such payment date. The Dollar or Foreign Currency or currency unit
amount receivable by Holders of Registered Securities denominated in
a currency unit who have elected payment in another currency or
currency unit as provided in paragraph (b) above shall be determined
by the Company on the basis of the applicable Official Currency Unit
Exchange Rate set forth in the applicable Exchange Rate Officers'
Certificate.
(e)(i) Except as set forth in clause (ii) below, if a
Foreign Currency in which an applicable Security is denominated or
payable (x) ceases to be recognized by the government of the country
which issued such currency or for the settlement of transactions by
public institutions of or within the international banking community,
(y) is a currency unit and such currency unit ceases to be used for
the purposes for which
26
it was established, or (z) is not available to the Company for making
payments thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Company, in each such case as
determined in good faith by the Company, then with respect to each
date for the payment of Principal of and interest, if any, on the
applicable Security denominated or payable in such Foreign Currency
occurring after the last date on which such Foreign Currency was so
used (the "Conversion Date"), the Dollar or such Foreign Currency as
may be specified by the Company (the "Substitute Currency") shall
become the currency of payment for use on each such payment date (but
such Foreign Currency shall, at the Company's election, resume being
the currency of payment on the first such payment date preceded by 15
Business Days during which the circumstances which gave rise to the
change of currency no longer prevail, in each case as determined in
good faith by the Company). The Substitute Currency amount to be paid
by the Company to the Trustee and by the Trustee or any Paying Agent
to the Holder of such Security with respect to such payment date
shall be the Currency Equivalent or Currency Unit Equivalent (as
determined pursuant to paragraphs (g) and (h) below) of the Foreign
Currency as determined by the Exchange Rate Agent (which
determination shall be delivered in writing to the Trustee not later
than the fifth Business Day prior to the applicable payment date) as
of the Conversion Date or, if later, the date most recently preceding
the payment date in question on which such determination is possible
of performance, but not more than 15 days before such payment date
(such Conversion Date or date preceding a payment date as aforesaid
being called the "Valuation Date"). Any payment in a Substitute
Currency under the circumstances described above will not constitute
an Event of Default.
(ii) If, pursuant to the treaty establishing the European
Communities, as amended by the treaty on European Union (the
"Treaty"), one or more of the Austrian ▇▇▇▇▇▇▇▇▇, Belgian franc,
Danish krone, Dutch guilder, Finish markka, French franc, German
▇▇▇▇, Greek drachma, Irish pound, Italian lire, Luxembourg franc,
Pound sterling, Portuguese escudo, Spanish peseta or Swedish krona is
replaced by the ECU as a currency in its own right, then all payments
in respect of the applicable Security required to be made in any such
currency shall be effected in ECU as a currency in its own right in
conformity with legally applicable measures taken pursuant to, or by
virtue of, the Treaty and such payment will not constitute an Event
of Default. If a Foreign Currency in which an applicable Security is
denominated or payable is ECU and if the ECU is no longer used as
either the unit of account of the European Communities or a currency
in its own right, replacing all or some of the currencies of the
member countries of the European Communities, then the Substitute
Currency shall be a component currency of the ECU or Dollars. If
changes are made by the European Communities to the nature or
composition of the ECU, references herein to the ECU shall be
construed as references to the ECU as so changed. References herein
to the ECU as a currency in its own right shall be construed as
including references to the Euro.
27
(f) If the Holder of a Registered Security denominated in a
currency unit elects payment in a specified Foreign Currency or
currency unit as provided for by paragraph (b) and such Foreign
Currency (x) ceases to be recognized by the government of the country
which issued such currency or for the settlement of transactions by
public institutions of or within the international banking community,
(y) is a currency unit and such currency unit ceases to be used for
the purposes for which it was established, or (z) is not available to
the Company for making payments thereof due to the imposition of
exchange controls or other circumstances beyond the control of the
Company, in each such case as determined in good faith by the
Company, then such Holder shall (subject to paragraph (e) above)
receive payment in the currency or currency unit in which the
Security is denominated. Each payment covered by an election pursuant
to paragraph (b) above shall be governed by the provisions of this
paragraph (f) (but, subject to any contravening valid election
pursuant to paragraph (b) above, the specified Foreign Currency
shall, at the Company's election, resume being the currency or
currency unit, as applicable, of payment with respect to Holders who
have so elected, but only with respect to payments on payment dates
preceded by 15 Business Days during which the circumstances which
gave rise to such currency or currency unit becoming the currency or
currency unit of payment, no longer prevail, in each case as
determined in good faith by the Company).
(g) The "Currency Equivalent" shall be determined by the
Exchange Rate Agent as of each Valuation Date and shall be obtained
by converting the initial Foreign Currency (unless such Foreign
Currency is a currency unit) into the Substitute Currency at the
Market Exchange Rate on the Valuation Date.
(h) The "Currency Unit Equivalent" shall be determined by
the Exchange Rate Agent as of each Valuation Date and shall be the
sum obtained by adding together the results obtained by converting
the Specified Amount of each initial Component Currency into the
Substitute Currency at the Market Exchange Rate on the Valuation Date
for such Component Currency.
(i) For purposes of this Section 2.16 the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency
which, on the Conversion Date, was a component currency of
the relevant currency unit, including without limitation
ECU.
A "Specified Amount" of a Component Currency shall
mean the number of units (including decimals) which such
Component Currency represented in the relevant currency
unit, on the Conversion Date or, if ECU and such currency
unit is being used for settlement of transactions by public
institutions of or within the European Communities or was so
used after the Conversion Date, the Valuation
28
Date or the last date the currency unit was so
used, whichever is later. If after such date the official
unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such
Component Currency shall be divided or multiplied in the
same proportion. If after such date two or more Component
Currencies are consolidated into a single currency, the
respective Specified Amounts of such Component Currencies
shall be replaced by an amount in such single currency equal
to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single
currency, and such amount shall thereafter be a Specified
Amount and such single currency shall thereafter be a
Component Currency. If after such date any Component
Currency shall be divided into two or more currencies, the
Specified Amount of such Component Currency shall be
replaced by specified amounts of such two or more
currencies, the sum of which, at the Market Exchange Rate of
such two or more currencies on the date of such replacement,
shall be equal to the Specified Amount of such former
Component Currency and such amounts shall thereafter be
Specified Amounts an such currencies shall thereafter be
Component Currencies.
"Market Exchange Rate" shall mean, as of any date,
for any currency or currency unit the noon Dollar buying
rate for that currency or currency unit, as the case may be,
for cable transfers quoted in New York City on such date as
certified for customs purposes by the Federal Reserve Bank
of New York or such other rate as may be established
pursuant to Section 2.3. If such rates are not available for
any reason with respect to one or more currencies or
currency units for which an Exchange Rate is required, the
Exchange Rate Agent shall use, in its sole discretion and
without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available
date, or quotations from one or more major banks in New York
City or in the country of issue of the currency or currency
unit in question, or such other quotations as the Exchange
Rate Agent shall deem appropriate. Unless otherwise
specified by the Exchange Rate Agent if there is more than
one market for dealing in any currency or currency unit by
reason of foreign exchange regulations or otherwise, the
market to be used in respect of such currency or currency
unit shall be that upon which a nonresident issuer of
securities designated in such currency or currency unit
would, as determined in its sole discretion and without
liability on the part of the Exchange Rate Agent, purchase
such currency or currency unit in order to make payments in
respect of such securities.
All decisions and determinations of the Exchange Rate Agent
regarding the Currency Equivalent, the Currency Unit Equivalent and
the Market Exchange Rate shall be in its sole discretion and shall,
in the absence of manifest error, be conclusive for all purposes and
irrevocably binding upon the Company, all Holders of the Securities
and coupons denominated or payable in the relevant currency or
currency units and the
29
Trustee. In the event that a Foreign Currency ceases to be used by
the government of the country which issued such currency or for the
settlement of transactions by public institutions of or within the
international banking community, the Company, after learning thereof,
will immediately give notice thereof to the Trustee (and the Trustee
will promptly thereafter give notice to the Holders) specifying the
Conversion Date. In the event the ECU ceases to be used within the
European Monetary System, or any other currency unit in which
Securities or coupons are denominated or payable, ceases to be used
for the purposes for which it was established, the Company, after
learning thereof, will immediately give notice thereof to the Trustee
(and the Trustee will promptly thereafter give notice to the Holders)
specifying the Conversion Date. Any actions taken pursuant to the
parentheticals at the end of the first sentence of Section 2.16(e)
and at the end of Section 2.16(f) shall be promptly set forth in like
notices from the Company to the Trustee and then from the Trustee to
the Holders (which notice may be mailed with payment to the Holders).
Subject to the provisions of Sections 7.1, 7.2 and 7.3, the
Trustee shall be fully justified and protected in relying and acting
upon information received by it from the Company and the Exchange
Rate Agent, and shall not otherwise have any duty or obligation to
determine such information independently.
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
SECTION 3.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be
redeemed as a whole or in part at the option of the Company shall be given by
mailing notice of such redemption by first class mail, postage prepaid or sent
by overnight courier, at least 30 days and not more than 60 days prior to the
date fixed for redemption to such Holders of Registered Securities of such
series at their last addresses as they shall appear upon the Security Register
of the Company. Notice of redemption to the Holders of Unregistered Securities
of any series to be redeemed as a whole or in part, who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act, shall be given by mailing notice of such redemption, by first
class mail, postage prepaid or sent by overnight courier, at least 30 days and
not more than 60 days prior to the date fixed for redemption, to such Holders
at such addresses as were so furnished to the Trustee (and, in the case of any
such notice given by the Company, the Trustee shall make such information
available to the Company for such purpose). Notice of redemption to all other
Holders of
30
Unregistered Securities of any series to be redeemed as a whole or in part
shall be published in an Authorized Newspaper in The City of New York and in
an Authorized Newspaper in London and, if applicable, in Luxembourg or such
other place of publication as may be required pursuant to the rules and
regulations of any securities exchange on which such Securities are listed, in
each case, once in each of three successive calendar weeks, the first
publication to be not less than 30 days nor more than 60 days prior to the
date fixed for redemption. Any notice which is mailed or published in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice. Failure to give notice by mail,
or any defect in the notice to the Holder of any Security of a series
designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP, CINS or ISIN numbers of the Securities to be redeemed,
the date fixed for redemption, the redemption price, the place or places of
payment, that payment will be made upon presentation and surrender of such
Securities and, in the case of Securities with coupons attached thereto, of
all coupons appertaining thereto maturing after the date fixed for redemption,
that such redemption is pursuant to the mandatory or optional sinking fund, or
both, if such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. In case any Security of a series is to be redeemed in part only, the
notice of redemption shall state the portion of the principal amount thereof
to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
such series and tenor in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any series to be redeemed
at the option of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the
Company.
Not later than 10:00 a.m. each Paying Agent's local time on the
redemption date specified in the notice of redemption given as provided in
this Section, the Company will deposit with the Trustee or with one or more
Paying Agents (or, if the Company is acting as its own Paying Agent, set
aside, segregate and hold in trust as provided in Section 2.6) an amount of
money sufficient to redeem on the redemption date all the Securities of such
series so called for redemption at the appropriate redemption price, together
with accrued interest to the date fixed for redemption. If all of the
outstanding Securities of a series are to be redeemed, the Company will
deliver to the Trustee at least 10 days prior to the last date on which notice
of redemption may be given to Holders pursuant to the first paragraph of this
Section 3.2 (or such shorter period as shall be acceptable to the Trustee) an
Officers' Certificate stating that all such Securities are to be redeemed. If
less than all the outstanding Securities of a series are to be redeemed, the
Company will deliver to the Trustee at least 15 days prior to the last date on
which notice of redemption may be given to Holders pursuant to the first
paragraph of this Section 3.2 (or such
31
shorter period as shall be acceptable to the Trustee) an Officers' Certificate
stating the aggregate principal amount of such Securities to be redeemed. In
case of a redemption at the election of the Company prior to the expiration of
any restriction on such redemption, the Company shall deliver to the Trustee,
prior to the giving of any notice of redemption to Holders pursuant to this
Section, an Officers' Certificate stating that such redemption is not
prohibited by such restriction.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Company in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
SECTION 3.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date
and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and on and
after such date (unless the Company shall default in the payment of such
Securities at the redemption price, together with-interest accrued to such
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue, and the unmatured coupons, if any,
appertaining thereto shall be void and, except as provided in Sections 7.11
and 8.4, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with coupons attached thereto, to the Holders of the
coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered Securities registered
as such on the relevant record date subject to the terms and provisions of
Sections 2.4 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
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If any Security with coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant coupons maturing after
the date fixed for redemption, the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee, if there be furnished to each of
them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Security of any series redeemed in part
only, the Company shall execute and the Trustee shall authenticate and make
available for delivery to or on the order of the Holder thereof, at the
expense of the Company, a new Security or Securities of such series and tenor
(with any unmatured coupons attached), of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
SECTION 3.4 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 in a written statement signed by an Officer of the Company
and delivered to the Trustee at least 40 days prior to the last date on which
notice of redemption may be given as being owned of record and beneficially
by, and not pledged or hypothecated by either (a) the Company or (b) an entity
specifically identified in such written statement as directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company.
SECTION 3.5 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the Securities of any
series is herein referred to as a "mandatory sinking fund payment," and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation
pursuant to Section 2.11, (b) receive credit for optional sinking fund
payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Company through any optional sinking fund payment. Securities
so delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, or such shorter period as shall be acceptable to
the Trustee, the Company will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund
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payment to be satisfied by payment of cash and the portion to be satisfied by
credit of specified Securities of such series and the basis for such credit,
(b) stating that none of the specified Securities of such series has
theretofore been so credited, (c) stating that no defaults in the payment of
interest or Events of Default with respect to such series have occurred (which
have not been waived or cured) and are continuing and (d) stating whether or
not the Company intends to exercise its right to make an optional sinking fund
payment with respect to such series and, if so, specifying the amount of such
optional sinking fund payment which the Company intends to pay on or before
the next succeeding sinking fund payment date. Any Securities of such series
to be credited and required to be delivered to the Trustee in order for the
Company to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.11 to the Trustee with such Officers' Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officers'
Certificate shall be irrevocable and upon its receipt by the Trustee the
Company shall become unconditionally obligated to make all the cash payments
or delivery of Securities therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company, on or before any
such sixtieth day, to deliver such Officer's 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 Company
(i) that the mandatory sinking fund payment for such series due on the next
succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof
and (ii) that the Company will make no optional sinking fund payment with
respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or a lesser sum if the Company shall so request with respect
to the Securities of any series), such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price thereof together with accrued
interest thereon to the date fixed for redemption. If such amount shall be
$50,000 (or such lesser sum) or less and the Company makes no such request
then it shall be carried over until a sum in excess of $50,000 (or such lesser
sum) is available. The Trustee shall select, in the manner provided in Section
3.2, for redemption on such sinking fund payment date a sufficient principal
amount of Securities of such series to absorb said cash, as nearly as may be,
and shall (if requested in writing by the Company) inform the Company of the
serial numbers of the Securities of such series (or portions thereof) so
selected. Securities shall be excluded from eligibility for redemption under
this Section if they are identified by registration and certificate number in
an Officers' Certificate delivered to the Trustee at least 60 days prior to
the sinking fund payment date as being owned of record and beneficially by,
and not pledged or hypothecated by either (a) the Company or (b) an entity
specifically identified in such Officers' Certificate as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company. The Trustee, in the nameand at the expense of the
Company (or the Company, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 3.2 (and with the effect provided
in Section 3.3) for
34
the redemption of Securities of such series in part at the option of the
Company. The amount of any sinking fund payments not so applied or allocated
to the redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment, shall be
applied in accordance with the provisions of this Section. Any and all sinking
fund moneys held on the stated maturity date of the Securities of any
particular series (or earlier, if such maturity is accelerated), which are not
held for the payment or redemption of particular Securities of such series
shall be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the Principal of, and interest on, the Securities
of such series at maturity.
Not later than 10:00 a.m. New York City time on each sinking fund
payment date, the Company shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed any Securities
of a series with sinking fund moneys or mail any notice of redemption of
Securities of such series by operation of the sinking fund during the
continuance of a Default in payment of interest on such Securities or of any
Event of Default except that, where the mailing of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities, provided that it shall have received from the
Company a sum sufficient for such redemption. Except as aforesaid, any moneys
in the sinking fund for such series at the time when any such Default or Event
of Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default, be deemed
to have been collected under Article 6 and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided
in Section 6.4 or the Default cured on or before the sixtieth day preceding
the sinking fund payment date in any year, such moneys shall thereafter be
applied on the next succeeding sinking fund payment date in accordance with
this Section to the redemption of such Securities.
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities. The Company shall pay the
Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities with
coupons attached (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. The interest on any temporary
Unregistered Securities (together with any additional amounts payable pursuant
to the terms of such Securities) shall be paid, as to the installments of
interest evidenced by coupons attached thereto, if any, only upon presentation
and surrender thereof, and, as to the other installments of interest, if any,
only upon
35
presentation of such Unregistered Securities for notation thereon of the
payment of such interest. The interest on Registered Securities (together with
any additional amounts payable pursuant to the terms of such Securities) shall
be payable only to the Holders thereof and at the option of the Company may be
paid by mailing checks for such interest payable to or upon the written order
of such Holders at their last addresses as they appear on the Security
Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities
of any series to the contrary, if the Company and a Holder of any Registered
Security so agree or if expressly provided pursuant to Section 2.3, payments
of interest on, and any portion of the Principal of, such Holder's Registered
Security (other than interest payable at maturity or on any redemption or
repayment date or the final payment of Principal on such Security) shall be
made by the Paying Agent, upon receipt from the Company of immediately
available funds by 11:00 a.m., New York City time (or such other time as may
be agreed to between the Company and the Paying Agent), directly to the Holder
of such Security (by Federal funds wire transfer or otherwise) if the Holder
has delivered written instructions to the Trustee 10 days prior to such
payment date requesting that such payment will be so made and designating the
bank account to which such payments shall be so made and in the case of
payments of Principal surrenders the same to the Trustee in exchange for a
Security or Securities aggregating the same principal amount as the unredeemed
principal amount of the Securities surrendered. The Trustee shall be entitled
to rely on the last instruction delivered by the Holder pursuant to this
Section 4.1 unless a new instruction is delivered 10 days prior to a payment
date. The Company will indemnify and hold each of the Trustee, its officers,
directors, employees and agents and any Paying Agent harmless against any
loss, liability or expense (including attorneys' fees and expenses) resulting
from any act or omission to act on the part of the Company or any such Holder
in connection with any such agreement or from making any payment in accordance
with any such agreement.
The Company shall pay interest on overdue Principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities.
SECTION 4.2 Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or
agency for a Registrar and Paying Agent where Securities may be surrendered
for registration of transfer or exchange or for presentation for payment and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company hereby initially designates the
Corporate Trust Office of the Trustee, located in the Borough of Manhattan,
The City of New York, as such office or agency of the Company. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the address of the Trustee set forth in
Section 11.2.
The Company shall cause the Registrar to keep a register of the
Registered Securities and of their registration, transfer and exchange (the
"Security Register").
36
The Company will also maintain one or more Paying Agents in each
Place of Payment in a city or cities located outside the United States
(including any city in which such an agency is required to be maintained under
the rules of any stock exchange on which the Securities of any series are
listed) where the Unregistered Securities, if any, of each series and coupons,
if any, appertaining thereto may be presented for payment. No payment on any
Unregistered Security or coupon will be made upon presentation of such
Unregistered Security or coupon at an agency of the Company within the United
States nor will any payment be made by transfer to an account in, or by mail
to an address in, the United States unless, pursuant to applicable United
States laws and regulations then in effect, such payment can be made without
adverse tax consequences to the Company. Notwithstanding the foregoing, if
full payment in Dollars at each agency maintained by the Company outside the
United States for payment on such Unregistered Securities or coupons
appertaining thereto is illegal or effectively precluded by exchange controls
or other similar restrictions, payments in Dollars of Unregistered Securities
of any series and coupons appertaining thereto which are payable in Dollars
may be made at an agency of the Company maintained in the Borough of
Manhattan, The City of New York.
The Company may also from time to time designate one or more other
Places of Payment where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an
office or agency in the Borough of Manhattan, The City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other Place of Payment.
SECTION 4.3
[Reserved]
SECTION 4.4 Certificate to Trustee. The Company will furnish to the
Trustee annually, on or before a date not more than four months after the end
of its fiscal year (which, on the date hereof,is a calendar year), a brief
certificate (which need not contain the statements required by Section 11.4)
from its principal executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company with all conditions and covenants
under this
37
Indenture (such compliance to be determined without regard to any period of
grace or requirement of notice provided under this Indenture) which
certificate shall comply with the requirements of the Trust Indenture Act.
SECTION 4.5 Reports by the Company. The Company covenants to file
with the Trustee, within 30 days after the Company is required to file the
same with the Commission, copies of the annual reports and of the information,
documents and other reports which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of the covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.6 Calculation of Original Issue Discount. The Company shall
file with the Trustee promptly at the end of each calendar year a written
notice specifying the amount of original issue discount (including daily rates
and accrual periods) accrued on outstanding Securities as of the end of such
year.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as
an entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person (other than a consolidation with or
merger with or into a Subsidiary or a sale, conveyance, transfer, lease or
other disposition to a Subsidiary) or permit any Person to merge with or into
the Company unless:
(i) either (x) the Company shall be the continuing Person or
(y) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or that acquired or
leased such property and assets of the Company shall be a corporation
organized and validly existing under the laws of the United States of
America or any jurisdiction thereof and shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, all of
the obligations of the Company on all of the Securities and under
this Indenture and the Company shall have delivered to the Trustee an
Opinion of Counsel stating that such consolidation, merger or
transfer and such supplemental indenture complies with this provision
and that all conditions precedent provided for herein relating to
such transaction have been complied with and that such supplemental
indenture constitutes the legal, valid and binding obligation of the
Company or such successor enforceable against such entity in
accordance with its terms, subject to customary exceptions; and
38
(ii) the Company shall have delivered to the Trustee an
Officers' Certificate to the effect that immediately after giving
effect to such transaction, no Default shall have occurred and be
continuing and an Opinion of Counsel as to the matters set forth in
Section 5.1(i).
SECTION 5.2 Successor Substituted. Upon any consolidation or merger,
or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.1 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default. An "Event of Default" shall occur with
respect to the Securities of any series if:
(a) the Company defaults in the payment of all or any part
of the Principal of any Security of such series when the same becomes
due and payable at maturity, upon acceleration, redemption or
mandatory repurchase, including as a sinking fund installment, or
otherwise;
(b) the Company defaults in the payment of any interest on
any Security of such series when the same becomes due and payable,
and such default continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches
any other covenant or agreement of the Company in this Indenture with
respect to any Security of such series or in the Securities of such
series and such default or breach continues for a period of 60 days
after written notice thereof has been given to the Company by the
Trustee or to the Company and the Trustee by the Holders of 25% or
more in aggregate principal amount of the Securities of all series
affected thereby;
(d) an involuntary case or other proceeding shall be
commenced against the Company or DLJSC with respect to the Company or
DLJSC or their respective debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar
official of the Company or DLJSC or for any substantial part of the
property and assets of the Company or DLJSC, and such involuntary
case or other proceeding shall remain undismissed and
39
unstayed for a period of 60 days; or an order for relief shall be
entered against the Company or DLJSC under any bankruptcy, insolvency
or other similar law now or hereafter in effect;
(e) the Company or DLJSC (A) commences a voluntary case
under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Company or DLJSC or for all or substantially all of the property and
assets of the Company or DLJSC or (C) effects any general assignment
for the benefit of creditors;
(f) an event of default, as defined in any one or more
indentures or instruments evidencing or under which the Company has
at the date of this Indenture or shall hereafter have outstanding an
aggregate of at least $25,000,000 aggregate principal amount of
indebtedness for borrowed money, shall happen and be continuing and
such indebtedness shall have been accelerated so that the same shall
be or become due and payable prior to the date on which the same
would otherwise have become due and payable, and such acceleration
shall not be rescinded or annulled within ten days after notice
thereof shall have been given to the Company by the Trustee (if such
event be known to it), or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the
Securities at the time outstanding; provided, however, that if such
event of default under such indentures or instruments shall be
remedied or cured by the Company or waived by the holders of such
indebtedness, then the Event of Default hereunder by reason thereof
shall be deemed likewise to have been thereupon remedied, cured or
waived without further action upon the part of either the Trustee or
any of the Securityholders, and provided further, however, that the
Trustee shall not be charged with knowledge of any such default
unless written notice thereof shall have been given to the Trustee by
the Company, by the holder or an agent of the holder of any such
indebtedness, by the trustee then acting under any indenture or other
instrument under which such default shall have occurred, or by the
Holders of not less than 25% in the aggregate principal amount of the
Securities at the time outstanding;
(g) failure by the Company to make any payment at maturity,
including any applicable grace period, in respect of at least
$25,000,000 aggregate principal amount of indebtedness for borrowed
money and such failure shall have continued for a period of ten days
after notice thereof shall have been given to the Company by the
Trustee (if such eventbe known to it), or to the Company and the
Trustee by the holders of at least 25% in aggregate principal amount
of the Securities at the time outstanding; provided, however, that if
such failure shall be remedied or cured by the Company or waived by
the holders of such indebtedness, then the Event of Default under
this Indenture by reason thereof shall be deemed likewise to have
been thereupon remedied, cured or waived without further action upon
the part of either the Trustee or any of the Securityholders; or
40
(h) any other Event of Default established pursuant to
Section 2.3 with respect to the Securities of such series occurs.
SECTION 6.2 Acceleration. (a) If an Event of Default described in
clauses (a) or (b) of Section 6.1 with respect to the Securities of any series
then outstanding occurs and is continuing, then, and in each and every such
case, except for any series of Securities the Principal of which shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Securities of any such affected
series then outstanding hereunder (each such series treated as a separate
class) by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal amount (or, if the
Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series established pursuant to Section 2.3) of all Securities of such affected
series, and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable.
(b) If an Event of Default described in clauses (c) or (h) of Section
6.1 with respect to the Securities of one or more but not all series then
outstanding, occurs and is continuing, then, andin each and every such case,
except for any series of Securities the Principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount (or, if the Securities of any such series are
Original Issue Discount Securities, the amount thereof accelerable under this
Section) of the Securities of all such affectedseries then outstanding
hereunder (treated as a single class) by notice in writing to the Company (and
to the Trustee if given by Securityholders), may declare the entire principal
amount (or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to Section 2.3) of all Securities of
all such affected series, and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
(c) If an Event of Default described in clauses (d) or (e) of Section
6.1 occurs and is continuing, then the principal amount (or, if any Securities
are Original Issue Discount Securities, such portion of the Principal as may
be specified in the terms thereof established pursuant to Section 2.3) of all
the Securities then outstanding and interest accrued thereon, if any, shall be
and become immediately due and payable, without any notice or other action by
any Holder or the Trustee, to the full extent permitted by applicable law.
(d) If an Event of Default described in clauses (f) or (g) of Section
6.1 or in clauses (c) or (h) of Section 6.1 with respect to the Securities of
all series then outstanding, occurs and is continuing, then, and in each and
every such case, either the Trustee or the Holders of not less than 25% in
aggregate principal amount (or, if the Securities of any outstanding series
are Original Issue Discount Securities, the amount thereof accelerable under
this Section) of all
41
Securities of any series then outstanding hereunder except for any series of
Securities the Principal of which shall have already become due and payable
(treated as a single class) by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire principal amount
(or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to Section 2.3) of all Securities of
any series then outstanding, and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall
become immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal amount (or, if the Securities are Original
Issue Discount Securities, such portion of the Principal as may be specified
in the terms thereof established pursuant to Section 2.3) of the Securities of
any series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided,
the Company shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities of each such
series (or of all the Securities, as the case may be) and the Principal of any
and all Securities of each such series (or of all the Securities, as the case
may be) which shall have become due otherwise than by acceleration (with
interest upon such Principal and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest, at
the same rate as the rate of interest or Yield to Maturity (in the case of
Original IssueDiscount Securities) specified in the Securities of each such
series to the date of such payment or deposit) and such amount as shall be
sufficient to cover all amounts owing the Trustee under Section 7.7, and if
any and all Events of Default under the Indenture, other than the non-payment
of the Principal of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein, then
and in every such case the Holders of a majority in aggregate principal amount
of all the then outstanding Securities of all such series that have been
accelerated (voting as a single class), by written notice to the Company and
to the Trustee, may waive all defaults with respect to all such series (or
with respect to all the Securities, as the case may be) and rescind and annul
such declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the Principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities
shall be deemed, for all purposes hereunder, to be such portion of the
Principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the Principal thereof as shall be
due and payable as a result of such acceleration together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
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SECTION 6.3 Other Remedies. If a payment default or an Event of
Default with respect to the Securities of any series occurs and is continuing,
the Trustee may pursue, in its own name or as trustee of an express trust, any
available remedy by proceeding at law or in equity to collect the payment of
Principal of and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding.
SECTION 6.4 Waiver of Past Defaults. Subject to Sections 6.2, 6.7 and
9.2, the Holders of at least a majority in principal amount (or, if the
Securities are Original Issue Discount Securities, such portion of the
Principal as is then accelerable under Section 6.2) of the outstanding
Securities of all series affected (voting as a single class), by notice to the
Trustee, may waive an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a Default in the
payment of Principal of or interest on any Security as specified in clauses
(a) or (b) of Section 6.1 or in respect of a covenant or provision of this
Indenture which cannot be modified or amended without the consent of the
Holder of each outstanding Security affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default with respect to the
Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 6.5 Control by Majority. Subject to Sections 7.1 and 7.2(v),
the Holders of at least a majority in aggregate principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
Principal as is then accelerable under Section 6.2) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method andplace of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided, however,
that the Trustee may refuse to follow any direction that conflicts with law or
this Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further,
that the Trustee may take any other action it deems proper that is not
inconsistent with any directions received from Holders of Securities pursuant
to this Section 6.5.
SECTION 6.6 Limitation on Suits. No Holder of any Security of any
series may institute any proceeding, judicial or otherwise, with respect to
this Indenture or the Securities of such series, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given to the Trustee written
notice of a continuing Event of Default with respect to the
Securities of such series;
43
(ii) the Holders of at least 25% in aggregate principal
amount of outstanding Securities of all such series affected shall
have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(iii) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against any costs,
liabilities or expenses to be incurred in compliance with such
request;
(iv) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of all such
affected series have not given the Trustee a direction that is
inconsistent with such written request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.7 Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Security to
receive payment of Principal or interest, if any, on such Holder's Security on
or after the respective due dates expressed on such Security, or to bring suit
for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event of Default with
respect to the Securities of any series in payment of Principal or interest
specified in clause (a) or (b) of Section 6.1 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount (or such portion thereof as
specified in the terms established pursuant to Section 2.3 of Original Issue
Discount Securities) of Principal of, and accrued interest remaining unpaid
on, together with interest on overdue Principal of, and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest on, the Securities of such series, in each case at the rate or Yield
to Maturity (in the case of Original Issue Discount Securities) specified in
such Securities, and such further amount as shall be sufficient to cover all
amounts owing the Trustee under Section 7.7.
SECTION 6.9 Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
amounts due the Trustee under Section 7.7) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian,
44
receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it under Section 7.7. Nothing herein contained shall
be deemed to empower the Trustee to authorize or consent to, or accept or
adopt on behalf of any Holder, any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 6.10 Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of
Principal or interest, upon presentation of the several Securities and coupons
appertaining to such Securities in respect of which moneys have been collected
and noting thereon the payment, or issuing Securities of such series and tenor
in reduced principal amounts in exchange for the presented Securities of such
series and tenor if only partially paid, or upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.7 applicable to the Securities of such series in respect of
which moneys have been collected;
SECOND: In case the Principal of the Securities of such
series in respect of which moneys have been collected shall not have
become and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the Principal of the Securities of such
series in respect of which moneys have been collected shall have
become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Securities of such series
for Principal and interest, with interest upon the overdue Principal,
and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the same rate as
the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such
series; and in case such moneys shall be insufficient to pay in full
the whole amount so due and unpaid upon the Securities of such
series, then to the payment of such Principal and interest or Yield
to Maturity, without preference or priority of Principal over
interest or Yield to Maturity, or of interest or Yield to Maturity
over Principal, or of any installment of interest over any other
installment of interest, or of any Security of such series over any
other Security of
45
such series, ratably to the aggregate of such Principal and accrued
and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other person lawfully entitled thereto.
SECTION 6.11 Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder,
then, and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored to their former
positions hereunder and thereafter all rights and remedies of the Company,
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 6.12 Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, in either case in respect to
the Securities of any series, a court may require any party litigant in such
suit (other than the Trustee) to file an undertaking to pay the costs of the
suit, and the court may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant (other than the
Trustee) in the suit having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.12 does not
apply to a suit by a Holder pursuant to Section 6.7 or a suit by Holders of
more than 10% in principal amount of the outstanding Securities of such
series.
SECTION 6.13 Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Securities in Section 2.8, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.14 Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article 6 or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.
46
ARTICLE 7
TRUSTEE
SECTION 7.1 General. The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, unless it receives indemnity
satisfactory to it against any loss, liability or expense. Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Article 7.
SECTION 7.2 Certain Rights of Trustee. Subject to Trust Indenture Act
Sections 315(a) through (d):
(i) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any Officers'
Certificate, Opinion of Counsel (or both), resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper person or persons. The Trustee
need not investigate any fact or matter stated in the document, but
the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/or an Opinion of Counsel, which
shall conform to Section 11.4. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on
such certificate or opinion. Subject to Sections 7.1 and 7.2,
whenever in the administration of the trusts of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved
or established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted to
be taken by it under the provisions of this Indenture upon the faith
thereof;
(iii) the Trustee may act through its attorneys and agents,
custodians and nominees not regularly in its employ and shall not be
responsible for the misconduct or negligence of any agent or attorney
appointed with due care;
47
(iv) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced
to the Trustee by a copy thereof certified by the secretary or an
assistant secretary of the Company;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by or pursuant to this Indenture
at the request, order or direction of any of the Holders, unless such
Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that
might be incurred by it in compliance with such request, order or
direction;
(vi) the Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or
within its rights or powers or for any action it takes or omits to
take in accordance with the direction of the Holders in accordance
with Section 6.5 relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture;
(vii)the Trustee may consult with counsel of its selection
and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by it hereunder in good
faith and in reliance thereon; and
(viii)prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of Default,
the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, Officers'
Certificate, Opinion of Counsel, Board Resolution, statement,
instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or
other paper or document unless requested in writing so to do by the
Holders of not less than a majority in aggregate principal amount of
the Securities of all series affected then outstanding; provided,
however, that, if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it
by the terms of this Indenture, the Trustee may require indemnity
satisfactory to it against such expenses or liabilities as a
condition to proceeding.
SECTION 7.3 Individual Rights of Trustee. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its affiliates with the
same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Trust Indenture Act
48
Sections 310(b) and 311. For purposes of Trust Indenture Act Section 311(b)(4)
and (6), the following terms shall mean:
(a) "cash transaction" means any transaction in which full payment
for goods or securities sold is made within seven days after delivery of the
goods or securities in currency or in checks or other orders drawn upon banks
or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, ▇▇▇▇ of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured
by documents evidencing title to, possession of, or a lien upon, the goods,
wares or merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security, provided
the security is received by the Trustee simultaneously with the creation of
the creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, ▇▇▇▇ of exchange, acceptance or
obligation.
SECTION 7.4 Trustee's Disclaimer. The recitals contained herein and
in the Securities (except the Trustee's certificate of authentication) shall
be taken as statements of the Company and not of the Trustee and the Trustee
assumes no responsibility for the correctness of the same. Neither the Trustee
nor any of its agents (i) makes any representation as to the validity or
adequacyof this Indenture or the Securities and (ii) shall be accountable for
the Company's use or application of the proceeds from the Securities or for
monies paid over to the Company pursuant to the Indenture.
SECTION 7.5 Notice of Default. If any Default with respect to the
Securities of any series occurs and is continuing and if such Default is known
to the actual knowledge of a Responsible Officer with the corporate trust
department of the Trustee, the Trustee shall give to each Holder of Securities
of such series notice of such Default within 90 days after it occurs (i) if
any Unregistered Securities of such series are then outstanding, to the
Holders thereof, by publication at least once in an Authorized Newspaper in
the Borough of Manhattan, The City of New York and at least once in an
Authorized Newspaper in London and, if applicable, in Luxembourg or such other
place of publication as may be required pursuant to the rules and regulations
of any securities exchange on which such Securities are listed, and (ii) to
all Holders of Securities of such series in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, unless such Default
shall have been cured or waived before the mailing or publication of such
notice; provided, however, that, except in the case of a Default in the
payment of the Principal of or interest on any Security, the Trustee shall be
protected in withholding such notice if the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
SECTION 7.6 Reports by Trustee to Holders. Within 60 days after each
September 15, beginning with September 15, 1998, the Trustee shall mail to
each Holder as and to the extent
49
provided in Trust Indenture Act Section 313(c) a brief report dated as of such
September 15, if required by Trust Indenture Act Section 313(a).
SECTION 7.7 Compensation and Indemnity. The Company shall pay to the
Trustee such compensation as shall be agreed upon in writing from time to time
for its services. The compensation of the Trustee shall not be limited by any
law on compensation of a Trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of- pocket expenses,
disbursements and advances incurred or made by the Trustee. Such expenses
shall include the reasonable compensation and expenses of the Trustee's
agents, counsel and other persons not regularly in its employ.
The Company shall indemnify the Trustee for, and hold the Trustee,
its officers, directors, employees and agents harmless against, any and all
loss, damage, claim or liability or expense including taxes (other than taxes
based on the income of the Trustee) incurred by it without negligence or bad
faith on its part arising out of or in connection with the acceptance or
administration of this Indenture and the Securities or the issuance of the
Securities or a series thereof or the trusts hereunder and the performance of
its duties under this Indenture and the Securities, including the costs and
expenses of defending itself against or investigating any claim or liability
and of complying with any process served upon it or any of its officers in
connection with the exercise or performance of any of its powers or duties
under this Indenture and the Securities.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay Principal of, and interest on particular
Securities.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture or the rejection or termination
of this Indenture under bankruptcy law. Such additional indebtedness shall be
a senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit
of the Holders of particular Securities or coupons, and the Securities are
hereby subordinated to such senior claim. If the Trustee renders services and
incurs expenses following an Event of Default under Section 6.1(d) or Section
6.1(e) hereof, the parties hereto and the Holders by their acceptance of the
Securities hereby agree that such expenses are intended to constitute expenses
of administration under any bankruptcy law.
SECTION 7.8 Replacement of Trustee. A resignation or removal of the
Trustee as Trustee with respect to the Securities of any series and
appointment of a successor Trustee as
50
Trustee with respect to the Securities of any series shall become effective
only upon the successor Trustee's acceptance of appointment as provided in
this Section 7.8.
The Trustee may resign as Trustee with respect to the Securities of
any series at any time by so notifying the Company in writing. The Holders of
a majority in principal amount of the outstanding Securities of any series may
remove the Trustee as Trustee with respect to the Securities of such series by
so notifying the Trustee in writing and may appoint a successor Trustee with
respect thereto with the consent of the Company. The Company may remove the
Trustee as Trustee with respect to the Securities of any series if: (i) the
Trustee is no longer eligible under Section 7.10 of this Indenture; (ii) the
Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other public
officer takes charge of the Trustee or its property; or (iv) the Trustee
becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee with
respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the outstanding Securities of such series may appoint a
successor Trustee in respect of such Securities to replace the successor
Trustee appointed by the Company. If the successor Trustee with respect to the
Securities of any series does not deliver its written acceptance required by
the next succeeding paragraph of this Section 7.8 within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in principal amount of the outstanding Securities of
such series may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any series
shall deliver a written acceptance of its appointment to the retiring Trustee
and to the Company. Immediately after the delivery of such written acceptance,
subject to the lien provided for in Section 7.7, and subject to the payment of
any and all amounts then due and owing to the Trustee, (i) the retiring
Trustee shall transfer all property held by it as Trustee in respect of the
Securities of such series to the successor Trustee, (ii) the resignation or
removal of the retiring Trustee in respect of the Securities of such series
shall become effective and (iii) the successor Trustee shall have all the
rights, powers and duties of the Trustee in respect of the Securities of such
series under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities of such series.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
the preceding paragraph.
The Company shall give notice of any resignation and any removal of
the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee in respect of
51
the Securities of such series to all Holders of Securities of such series.
Each notice shall include the name of the successor Trustee and the address
of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.8, the Company's
obligations under Section 7.7 shall continue for the benefit of the retiring
Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national
banking association, the resulting, surviving or transferee corporation or
national banking association without any further act shall be the successor
Trustee withthe same effect as if the successor Trustee had been named as the
Trustee herein; provided that such successor Trustee shall be otherwise
qualified and eligible under this Article 7.
SECTION 7.10 Eligibility. This Indenture shall always have a Trustee
who satisfies the requirements of Trust Indenture Act Section 310(a). The
Trustee shall have a combined capital and surplus of at least $25,000,000 as
set forth in its most recent published annual report of condition.
SECTION 7.11 Money Held in Trust. The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree in
writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law and except
for money held in trust under Article 8 of this Indenture.
SECTION 7.12 Right of Trustee in Capacity of Registrar or Paying
Agent. In the event that the Trustee is also acting in the capacity of Paying
Agent or Registrar hereunder, the rights and protections afforded to the
Trustee pursuant to this Article 7 shall also be afforded to the Trustee in
its capacity as Paying Agent or Registrar.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment. Except as
otherwise provided in this Section 8.1, the Company may terminate its
obligations under the Securities of any series and this Indenture with respect
to Securities of such series if:
(i) all Securities of such series previously authenticated
and delivered (other than destroyed, lost or wrongfully taken
Securities of such series that have been replaced or Securities of
such series that are paid pursuant to Section 4.1 or Securities of
such series for whose payment money or securities have theretofore
been held in trust and thereafter repaid to the Company, as provided
in Section 8.5) have been delivered to the Trustee for cancellation
and the Company has paid all sums payable by it hereunder; or
52
(ii) (A) the Securities of such series mature within one
year or all of them are to be called for redemption within one year
under arrangements satisfactory to the Trustee for giving the notice
of redemption, (B) the Company irrevocably deposits in trust with the
Trustee, as trust funds solely for the benefit of the Holders of such
Securities for that purpose, money or U.S. Government Obligations or
a combination thereof sufficient (unless such funds consist solely of
money, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any reinvestment,
to pay the Principal of and interest on the Securities of such series
to maturity or redemption, as the case may be, and to pay all other
sums payable by it hereunder, and (C) the Company delivers to the
Trustee an Officers' Certificate and an Opinion of Counsel, in each
case stating that all conditions precedent provided for herein
relating to the satisfaction and discharge of this Indenture with
respect to the Securities of such series have been complied with.
(iii) With respect to the foregoing clause (i), only the
Company's obligations under Section 7.7 in respect of the Securities
of such series shall survive. With respect to the foregoing clause
(ii), only the Company's obligations in Sections 2.2 through 2.12,
4.2, 7.7, 7.8 and 8.5 in respect of the Securities of such series
shall survive until such Securities of such series are no longer
outstanding. Thereafter, only the Company's obligations in Sections
7.7 and 8.5 in respect of the Securities of such series shall
survive. After any such irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's
obligations under the Securities of such series and this Indenture
with respect to the Securities of such series except for those
surviving obligations specified above.
SECTION 8.2 Defeasance. Except as provided below, the Company will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Securities of any series and the provisions of this Indenture
will no longer be in effect with respect to the Securities of such series (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same); provided that the following conditions shall have
been satisfied:
(A) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the Principal of and
interest on the Securities of such series, money or U.S. Government
Obligations or a combination thereof sufficient (unless such funds
consist solely of money, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee) without consideration
of any reinvestment and after payment of all federal, state and local
taxes or other charges and assessments in respect thereof payable by
the Trustee, to pay and discharge the Principal of and accrued
interest on the outstanding Securities of such series to maturity
53
or earlier redemption (irrevocably provided for under arrangements
satisfactory to the Trustee), as the case may be;
(B) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company is a party or
by which it is bound;
(C) no Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit;
(D) the Company shall have delivered to the Trustee (1)
either (x) a ruling directed to the Trustee received from the
Internal Revenue Service to the effect that the Holders of the
Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of the Company's exercise of
its option under this Section 8.2 and will be subject to federal
income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit and defeasance had
not occurred or (y) an Opinion of Counsel to the same effect as the
ruling described in clause (x) above and (2) an Opinion of Counsel to
the effect that the Holders of the Securities of such series have a
valid security interest in the trust funds subject to no prior liens
under the UCC; and
(E) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.2 of the Securities of such series
have been complied with.
The Company's obligations in Sections 2.2 through 2.12, 4.1, 4.2,
7.7, 7.8 and 8.5 with respect to the Securities of such series shall survive
until such Securities are no longer outstanding. Thereafter, only the
Company's obligations in Sections 7.7 and 8.5 shall survive.
SECTION 8.3 Covenant Defeasance. The Company may omit to comply with
any term, provision or condition set forth in Section 4.3 (or any other
specific covenant relating to such series provided for in a Board Resolution
or supplemental indenture pursuant to Section 2.3 which may by its terms be
defeased pursuant to this Section 8.3), and such omission shall be deemed not
to be an Event of Default under clauses (c) or (h) of Section 6.1, with
respect to the outstanding Securities of a series if:
(i) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the Principal of and
interest, if any, on the Securities of such series, money or U.S.
Government Obligations or a combination thereof in an amount
sufficient (unless such funds consist solely of money, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to
54
the Trustee) without consideration of any reinvestment and after
payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, to pay and
discharge the Principal of and interest on the outstanding Securities
of such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as the
case may be;
(ii) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company is a party or
by which it is bound;
(iii) no Default with respect to the Securities of such
series shall have occurred and be continuing on the date of such
deposit;
(iv) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (A) the Holders of the Securities of such
series have a valid security interest in the trust funds subject to
no prior liens under the UCC and (B) such Holders will not recognize
income, gain or loss for federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to federal
income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit and defeasance had
not occurred; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the covenant
defeasance contemplated by this Section 8.3 of the Securities of such
series have been complied with.
SECTION 8.4 Application of Trust Money. Subject to Section 8.5, the
Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.1, 8.2 or 8.3, as the case
may be, in respect of the Securities of any series and shall apply the
deposited money and the proceeds from deposited U.S. Government Obligations in
accordance with the Securities of such series and this Indenture to the
payment of Principal of and interest on the Securities of such series; but
such money need not be segregated from other funds except to the extent
required by law. The Company shall pay and indemnify the Trustee and its
officers, directors, agents and employees against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 8.1, 8.2 or 8.3 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of outstanding Securities.
SECTION 8.5 Repayment to Company. Subject to Sections 7.7, 8.1, 8.2
and 8.3, the Trustee and the Paying Agent shall promptly pay to the Company
upon request set forth in an Officers' Certificate any money held by them at
any time and not required to make payments hereunder and thereupon shall be
relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
55
them and required to make payments hereunder under this Indenture that remains
unclaimed for two years; provided that the Trustee or such Paying Agent before
being required to make any payment may cause to be published at the expense of
the Company once in an Authorized Newspaper in The City of New York and once
in an Authorized Newspaper in London and, if applicable, in Luxembourg or such
other place of publication as may be required pursuant to the rules and
regulations of any securities exchange on which such Securities are listed or
mail to each Holder entitled to such money at such Holder's address (as set
forth in the Security Register) notice that such money remains unclaimed and
that after a date specified therein (which shall be atleast 30 days from the
date of such publication or mailing) any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the Company, Holders
entitled to such money must look to the Company for payment as general
creditors unless an applicable law designates another Person, and all
liability of the Trustee and such Paying Agent with respect to such money
shall cease.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders. The Company and the Trustee may amend
or supplement this Indenture or the Securities of any series without notice to
or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
materially and adversely affect the interests of the Holders;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act;
(4) to evidence and provide for the acceptance of
appointment hereunder with respect to the Securities of any or all
series by a successor Trustee;
(5) to establish the form or forms or terms of Securities of
any series or of the coupons appertaining to such Securities as
permitted by Section 2.3;
(6) to provide for uncertificated or Unregistered Securities
and to make all appropriate changes for such purpose;
(7) if allowed under applicable laws and regulations to
permit payment in the United States of Principal or interest on
Unregistered Securities or coupons, if any; or
56
(8) to make any change that does not materially and
adversely affect the rights of any Holder.
SECTION 9.2 With Consent of Holders. Subject to Sections 6.4 and 6.7,
without prior notice to any Holders, the Company and the Trustee may amend
this Indenture and the Securities of any series with the written consent of
the Holders of a majority in principal amount of the outstanding Securities of
all series affected by such amendment (all such series voting as one class),
and the Holders of a majority in principal amount of the outstanding
Securities of all series affected thereby (all such series voting as one
class) by written notice to the Trustee may waive future compliance by the
Company with any provision of this Indenture or the Securities of such series.
Notwithstanding the provisions of this Section 9.2, without the
consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.4, may not:
(i) extend the stated maturity of the Principal of, or any
sinking fund obligation or any installment of interest on, such
Holder's Security, or reduce the Principal thereof or the rate of
interest thereon (including any amount in respect of original issue
discount), or any premium payable with respect thereto, or adversely
affect the rights of such Holder under any mandatory redemption or
repurchase provision or any right of redemption or repurchase at the
option of such Holder, or reduce the amount of the Principal of an
OriginalIssue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 6.2 or the
amount thereof provable in bankruptcy, or change any place of payment
where, or the currency in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the due date
therefor;
(ii) reduce the percentage in principal amount of
outstanding Securities of the relevant series the consent of whose
Holders is required for any such supplemental indenture, for any
waiver of compliance with certain provisions of this Indenture or
certain Defaults and their consequences provided for in this
Indenture;
(iii) waive a Default in the payment of Principal of or
interest on any Security of such Holder; or
(iv) modify any of the provisions of this Section 9.2,
except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each outstanding Security
affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of Holders of Securities of such series with
57
respect to such covenant or provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other series
or of the coupons appertaining to such Securities.
It shall not be necessary for the consent of any Holder under this
Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company
will mail supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or
waiver.
SECTION 9.3 Revocation and Effect of Consent. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the Security of the consenting
Holder, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to its Security
or portion of its Security. Such revocation shall be effective only if the
Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective. An amendment, supplement or waiver
shall become effective with respect to any Securities affected thereby on
receipt by the Trustee of written consents from the requisite Holders of
outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record date
(which may be not less than 10 nor more than 60 days prior to the solicitation
of consents) for the purpose of determining the Holders of the Securities of
any series affected entitled to consent to any amendment, supplement or
waiver. If a record date is fixed, then, notwithstanding the immediately
preceding paragraph, those Persons who were such Holders at such record date
(or their duly designated proxies) and only those Persons shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such Persons continue to be such Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of clauses
(i) through (iv) of Section 9.2. In case of an amendment or waiver of the type
described in clauses (i) through (iv) of Section 9.2, the amendment or waiver
shall bind each such Holder who has consented to it and every subsequent
Holder of a Security that evidences the same indebtedness as the Security of
the consenting Holder.
58
SECTION 9.4 Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of any Security, the Trustee may
require the Holder thereof to deliver it to the Trustee. The Trustee may place
an appropriate notation on the Security about the changed terms and return it
to the Holder and the Trustee may place an appropriate notation on any
Security of such series thereafter authenticated. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security of the same
series and tenor that reflects the changed terms.
SECTION 9.5 Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 9 is authorized or permitted by this
Indenture, stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture constitutes
the legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to customary exceptions.
Subject to the preceding sentence, the Trustee shall sign such amendment,
supplement or waiver if the same does not adversely affect the rights of the
Trustee. The Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver that affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
SECTION 9.6 Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article 9 shall conform to the
requirements of the Trust Indenture Act as then in effect.
ARTICLE 10
SUBORDINATION
SECTION 10.1 Securities Subordinated to Senior Indebtedness. The
Company, for itself and its successors, and each Holder, by his or her
acceptance of Securities, agrees that the payment of the Principal of if any,
and interest on the Securities is subordinated, to the extent and in the
manner provided in this Article Ten, to the right of payment in full to all
present and future Senior Indebtedness, and that these subordination
provisions are for the benefit of the holders of Senior Indebtedness.
The provisions of this Article Ten are for the benefit of the holders
of the Senior Indebtedness from time to time (and their successors and
assigns) and shall be enforceable directly by them and their respective
Representatives directly against the Company, the Trustee and the Holders (and
their successors and assigns). The provisions of this Article Ten shall be a
continuing agreement and shall be irrevocable and shall remain in full force
and effect until payment in the full of the Senior Indebtedness in cash or
cash equivalents, and shall constitute a continuing and irrevocable offer to
all Persons who become holders of, or continue to hold, Senior Indebtedness
(whether such Senior Indebtedness was created or acquired before or after
59
the issuance of the Securities), each of which holders shall be deemed for the
purposes hereof to have acquired Senior Indebtedness in reliance upon the
provisions of this Article Ten. The provision of this Article Ten shall
survive the commencement of any reorganization or other proceedings with
respect to the Company or any other Person and the discharge of any claim in
connection with such reorganization or other proceedings, including, without
limitation, the discharge of any Senior Indebtedness.
The holders of the Senior Indebtedness and their respective
representatives are hereby authorized to demand specific performance of the
provisions of this Article Ten at any time when the Company or any Holder
shall have failed to comply with any provision of this Article Ten applicable
to it, and the Company and each Holder hereby irrevocably waives any defense
based on the adequacy of a remedy at law that might be asserted as a bar to
the remedy of specific performance hereof in any action brought therefor by
the holders of the Senior Indebtedness and their respective representatives.
SECTION 10.2 No Payment on Securities in Certain Circumstances. (a)
No payment shall be made by or on behalf of the Company on account of any
obligation or, to the extent the subordination thereof is permitted by
applicable law, claim in respect of the Securities, including the Principal
of, or interest on the Securities, or to redeem (or make a deposit in
redemption of), defease (other than payments made by the Trustee pursuant to
Article Eight with respect to a defeasance permitted by this Indenture,
including the subordination provisions herein) or acquire any of the
Securities for cash, property or securities, (i) upon the maturity of the
Designated Senior Indebtedness or any other Senior Indebtedness with an
aggregate principal amount in excess of $1 million by lapse of time,
acceleration or otherwise, unless and until all Principal of, and interest on
such Senior Indebtedness and all other obligations in respect thereof shall
first be paid in full in cash or cash equivalents or such payment is duly
provided for, or unless and until any such maturity by acceleration has been
rescinded or waived or (ii) in the event of default in payment of any
Principal of, or interest on or any other amount payable in respect of the
Designated Senior Indebtedness or any other Senior Indebtedness with an
aggregate principal amount in excess of $1 million when it becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise, unless and until such payment default has been cured
or waived or has otherwise ceased to exist.
(b) Upon the happening of a default (any event that, after notice or
passage of time would be an event of default) or an event of default (any
event that permits the holders of Senior Indebtedness or their representative
or representatives immediately to accelerate its maturity) with respect to any
Senior Indebtedness, other than a default in payment of the Principal of, or
interest on such Senior Indebtedness, upon written notice of such default or
event of default given to the Company and the Trustee by the holders of a
majority of the principal amount outstanding of such Designated Senior
Indebtedness or their representative or at such time as there is no Designated
Senior Indebtedness by the holders of a majority of the principal amount
outstandingof all Senior Indebtedness or their representative or
representatives, or if such default or event of default results from the
acceleration of the Securities, immediately upon such
60
acceleration, then, unless and until such default or event of default
has been cured or waived or otherwise has ceased to exist, no payment may be
made by or on behalf of the Company with respect to any obligation or claim in
respect of the Securities, including the Principal of, or interest on the
Securities or to redeem (or make a deposit in redemption of), defease or
acquire any of the Securities for cash, property or securities.
Notwithstanding the foregoing, unless the Senior Indebtedness in respect of
which such default or event of default exists has been declared due and
payable in its entirety within 180 days after the date written notice of such
default or event of default is delivered as set forth above or the date of
such acceleration, as the case may be (the "Payment Blockage Period"), and
such declaration or acceleration has not been rescinded, the Company shall be
required then to pay all sums not paid to the Holders of the Securities during
the Payment Blockage Period due to the foregoing prohibitions and to resume
all other payments as and when due on the Securities. Any number of such
notices may be given; provided, however, that (i) during any 360 consecutive
days, only one Payment Blockage Period shall commence and (ii) any such
default or event of default that existed upon the commencement of a Payment
Blockage Period may not be the basis for the commencement of any other Payment
Blockage Period, unless such default or event of default shall have been cured
or waived for a period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing provisions of
this Section 10.2, any payment or distribution of assets of the Company from
any source whether in cash, property or securities, shall be received by the
Trustee or the Holders on account of any obligation or claim in respect of the
Securities at a time when such payment or distribution is prohibited by the
foregoing provisions, such payment or distribution shall be held in trust for
the benefit of the holders of Senior Indebtedness, and shall be paid or
delivered by the Trustee or such Holders, as the case may be, to the holders
of the Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or represented by
each, for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay or to provide for the payment in full
in cash or cash equivalents of all such Senior Indebtedness, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness.
The Company shall give prompt written notice to the Trustee of any
default or event of default, and any cure or waiver thereof, or any
acceleration under any Senior Indebtedness or under any agreement pursuant to
which Senior Indebtedness may have been issued.
SECTION 10.3 Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of Company. Upon
any distribution of assets of the Company upon any dissolution, winding up,
total or partial liquidation or reorganization or readjustment of the Company,
whether voluntary or involuntary, in bankruptcy, insolvency, receivership or
similar proceeding or upon assignment for the benefit of creditors, or any
other marshaling of the assets and liabilities of the Company or otherwise:
61
(a)the holders of all Senior Indebtedness would first be entitled to
receive payment in full in cash or cash equivalents (or have such payment duly
provided for) of the Principal, and interest payable in respect thereof before
the Holders would be entitled to receive any payment on account of the
Principal of, and interest on the Securities;
(b) any payment or distribution of assets of the Company of any kind
or character, from any source, whether in cash, property or securities to
which the Holders or the Trustee on behalf of the Holders would be entitled,
except for the subordination provisions of this Article Ten, would be paid by
the liquidating trustee or agent or other person making such a payment or
distribution directly to the holders of Senior Indebtedness remaining unpaid
or unprovided for or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, for application to the payment of
all Senior Indebtedness remaining unpaid, to the extent necessary to pay or
provide for the payment in full in cash or cash equivalents of all such Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company from any source, whether in cash,
property or securities, shall be received by the Trustee or the Holders on
account of principal of or interest on the Securities before all Senior
Indebtedness is paid in full in cash or cash equivalents (or such payment is
duly provided for), such payment or distribution (subject to the provision of
Section 10.6 and 10.7) shall be held in trust by the Trustee or such Holders
for the benefit of the holders of the Senior Indebtedness, or their
representative, ratably according to the respective amounts of Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full (except as such payment otherwise shall have been provided
for) of all Senior Indebtedness remaining unpaid after giving effect to all
concurrent payments and distributions and all provisions therefor to the
holders of such Senior Indebtedness, but only to the extent that as to any
holder of Senior Indebtedness, as promptly as practicable following notice
from the Trustee to the holders of Senior Indebtedness that such prohibited
payment has been received by the Trustee or Holder(s), such holder (or a
representative therefor) notifies the Trustee of the amounts then due and
owing on the Senior Indebtedness, if any, held by such holder and only the
amounts specified in such notices to the Trustee shall be paid to the holders
of Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company or
assignment for the benefit of creditors by the Company.
SECTION 10.4 Securityholders to be Subrogated to Rights of Holders of
Senior Indebtedness. Subject to the payment in full in cash or cash
equivalents of all Senior Indebtedness (or provision made for its payment),
the Holders of Securities shall be subrogated
62
to the rights of the holders of such Senior Indebtedness to receive payments
or distributions of assets of the Company applicable to the Senior
Indebtedness until all amounts owing on the Securities shall be paid in full,
in cash or cash equivalents and for the purpose of such subrogation no such
payments or distributions to the holders of Senior Indebtedness by or on
behalf of the Company, or by or on behalf of the Holders by virtue of this
Article Ten, which otherwise would have been made to the Holders shall, as
between the Company and the Holders, be deemed to be payment by the Company to
or on account of the Senior Indebtedness, it being understoodthat the
provisions of this Article Ten are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders
of Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article Ten shall have been
applied, pursuant to the provisions of this Article Ten, to the payment of
amounts payable under Senior Indebtedness, then the Holders shall be entitled
to receive from the holders of such Senior Indebtedness any payments or
distributions received by such holders of Senior Indebtedness in excess of the
amount sufficient to pay all amounts payable under or in respect of the Senior
Indebtedness in full in cash or cash equivalents.
SECTION 10.5 Obligations of the Company Unconditional. Nothing
contained in this Article Ten or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company and the
Holders, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders the principal of, and interest on the Securities as and
when the same shall become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the Holders and
creditors of the Company other than the holders of the Senior Indebtedness,
nor shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article Ten,
of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Notwithstanding anything to the contrary in this Article Ten or elsewhere in
thisIndenture or in the Securities, upon any distribution of assets of the
Company referred to in this Article Ten, the Trustee, subject to the
provisions of Sections 8.1, 8.2 and 8.3, and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding up, liquidation or reorganization proceeding
are pending, or a certificate of the liquidating trustee or agent or other
person making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereonand all other facts pertinent thereto or to this Article
Ten. Nothing in this Section 10.5 shall apply to the claims of, or payments
to, the Trustee under or pursuant to Section 7.7.
Except as otherwise provided in this Section 10.5, in the event of
any inconsistency between the provisions of this Article Ten, on the one part,
and any other provision of this
63
Indenture or any provision of the Securities, on the other part, the
provisions of this Article Ten shall govern.
SECTION 10.6 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice. The Trustee shall not at any time be charged with knowledge
of the existence of any facts which would prohibit the making of any payment
to or by the Trustee unless and until a Trust Officer of the Trustee shall
have received, no later than three Business Days prior to such payment,
written notice thereof from the Company or from one or more holders of Senior
Indebtedness or from any representative therefor and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Section 8.1
and 8.2, shall be entitled in all respects conclusively to assume that no such
fact exists.
SECTION 10.7 Application by Trustee of Assets Deposited with It.
Money or U.S. Government Obligations deposited in trust with the Trustee
pursuant to and in accordance with Section 8.1 shall be for the sole benefit
of Securityholders and, to the extent (i) the making of such deposit by the
Company shall not have been in contravention of any term or provision of any
agreement creating or evidencing Senior Indebtedness and (ii) allocated for
the payment of Securities, shall not be subject to the subordination
provisions of this Article Ten. Otherwise, any deposit of assets by the
Company with the Trustee or any Paying Agent (whether or not in trust) for the
payment of Principal of or interest on any Securities shall be subject to the
provisions of Sections 10.1, 10.2, 10.3 and 10.4; provided, that, if prior to
the second Business Day preceding the date on which by the terms of this
Indenture any such assets may become distributable for any purpose (including
without limitation, the payment of either Principal of or interest on any
Securities) the Trustee or such Paying Agent shall not have received with
respect to such assets thewritten notice provided for in Section 10.6, then
the Trustee or such Paying Agent shall have full power and authority to
receive such assets and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date.
SECTION 10.8 Subordination Rights Not Impaired by Acts or Omissions
of the Company, the Trustee or Holders of Senior Indebtedness. No act, or
failure to act, of any holder of the Senior Indebtedness or their respective
representatives (including without limitation, any actionreferred to in this
Section 10.8), the Company, the Trustee, any Holder or any other Person with
the terms, covenants or the provisions of this Article Ten (regardless of any
knowledge thereof which any such holder of the Senior Indebtedness may have or
otherwise be charged with) or any reorganization or similar proceeding with
respect to the Company shall affect the provisions of this Article Ten, the
obligations owed by the Company, the Trustee or any Holder to the holders of
the Senior Indebtedness under this Article Ten or the rights of any holder of
Senior Indebtedness under this Article Ten.
The Company, the Trustee and each Holder each hereby agrees that the
taking of any of the following actions, with or without notice, by the holders
of the Senior Indebtedness and their respective representatives, will not in
any way affect the provisions of this Article Ten: (i)
64
changing the manner, place or terms of payment or extending the time of
payment of, or renewing or altering, any agreement or instrument creating,
evidencing or governing any Senior Indebtedness, or consenting to any
amendment or change of any terms of any such agreement or instrument, each as
amended from time to time; (ii) granting extensions or renewals of any such
agreement or instrument and any other indulgence with respect thereto, or
effecting any release, compromise or settlement with respect thereto; (iii)
releasing any Person liable in any manner for the payment or collection of any
Senior Indebtedness; (iv) substituting, exchanging or releasing or otherwise
disposing of any item of security at any time securing any Senior
Indebtedness, whether or not the collateral, if any, received upon the
exercise of such power shall be of a character or value the same as or
different from the character or value of the item of security released; (v)
exercising or refraining from exercising any rights or remedies against the
Company or any other Person; and (vi) taking any other action, or refraining
from taking any action, that, in the absence of authority granted hereby,
could have the effect of impairing, invalidating or rendering unenforceable,
in whole or in part, or otherwise affecting, any of the provisions of this
Article Ten.
SECTION 10.9 Securityholders Authorize Trustee to Effectuate
Subordination of Securities. Each Holder of the Securities by his or her
acceptance thereof authorizes and expressly directs the Trustee on his or her
behalf to take such action in accordance with the terms of this Indenture as
may be necessary or appropriate to effectuate the subordination provisions
contained in this Article Ten and to protect the rights of the Holders
pursuant to this Indenture, and appoints the Trustee his or her
attorney-in-fact for such purpose, including, in the event of any dissolution,
winding up, liquidation or any reorganization or similar preceding with
respect to the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Company) tending towards
liquidation of the business and assets of the Company, the immediate filing of
a claim for the unpaid balance of his or her Securities in the form required
in said proceedings and cause said claim to be approved. If the Trustee does
not file a proper claim or proof of debt in the form required in such
proceeding prior to 30 days before the expiration of the time to file such
claim or claims, then the holders of the Senior Indebtedness or their
respective representatives are hereby authorized to have the right to file and
are hereby authorized to file an appropriate claim for and on behalf of the
Holders of said Securities. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Indebtedness or their
respective representatives to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee or the holders of Senior Indebtedness or
their respective representatives to vote in respect of the claim of any
Securityholder in any such proceeding.
SECTION 10.10 Right of Trustee to Hold Senior Indebtedness. The
Trustee shall be entitled to all of the rights set forth in this Article Ten
in respect of any Senior Indebtedness at any time held by it to the same
extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as
such holder.
65
SECTION 10.11 Article Ten Not to Prevent Events of Default. The
failure to make a payment on account of Principal of or interest on the
Securities by reason of any provision of this Article Ten shall not be
construed as preventing the occurrence of a Default or an Event of Default
under Section 6.1 or in any way prevent the Holders from exercising any right
hereunder other than the right to receive payment on the Securities.
SECTION 10.12 No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct, bad faith or negligence) if it shall
in good faith mistakenly pay over or distribute to the Holders of Securities
or the Company or any other person, cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article Ten
or otherwise. Nothing in this Section 10.12 shall affect the obligation of any
other such person to hold such payment for the benefit of, and to pay such
payment over to, the holders of Senior Indebtedness or their representative.
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 Trust Indenture Act of 1939. This Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act.
SECTION 11.2 Notices. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person, when received or
(b) if mailed by first class mail, 5 days after mailing, or (c) as between the
Company and the Trustee if sent by facsimile transmission, when transmission
is confirmed, in each case addressed as follows:
if to the Company:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
if to the Trustee:
[___________________________]
66
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to Holders of
any Unregistered Securities by publication at least once in an Authorized
Newspaper in The City of New York and atleast once in an Authorized Newspaper
in London and, if applicable, in Luxembourg or such other place of publication
as may be required pursuant to the rules and regulations of any securities
exchange on which such Securities are listed, and by mailing to the Holders
thereof who have filed their names and addresses with the Trustee pursuant to
Section 313(c)(2) of the Trust Indenture Act at such addresses as were so
furnished to the Trustee and to Holders of Registered Securities by mailing to
such Holders at their addresses as they shall appear on the Security Register.
Notice mailed shall be sufficiently given if so mailed within the time
prescribed. Copies of any such communication or notice to a Holder shall also
be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. Except
as otherwise provided in this Indenture, if a notice or communication is
mailed in the manner provided in this Section 11.2, it is duly given, whether
or not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 11.3 Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and
(ii) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
67
SECTION 11.4 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(iii) a statement that, in the opinion of each such person,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of
each such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion
of Counsel may rely on an Officers' Certificate or certificates of
public officials.
SECTION 11.5 Evidence of Ownership. The Company, the Trustee and any
agent of the Company or the Trustee may deem and treat the Holder of any
Unregistered Security and the Holder of any coupon as the absolute owner of
such Unregistered Security or coupon (whether or not such Unregistered
Security or coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes, and neither the
Company, the Trustee, nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary. The fact of the holding by any Holder
of an Unregistered Security, and the identifying number of such Security and
the date of his holding the same, may be proved by the production of such
Security or by a certificate executed by any trust company, bank, banker or
recognized securities dealer wherever situated satisfactory to the Trustee, if
such certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
bearing a specified identifying number was deposited with or exhibited to such
trust company, bank, banker or recognized securities dealer by the person
named in such certificate. Any such certificate may be issued in respect of
one or more Unregistered Securities specified therein. The holding by the
person named in any such certificate of any Unregistered Securities specified
therein shall be presumed to continue for a period of one year from the date
of such certificate unless at the time of any determination of such holding
(1) another certificate bearing a later date issued in respect of the same
Securities shall be produced or (2) the Security specified in such certificate
shall be produced by some other Person, or (3) the Security specified in such
certificate shall have ceased to be outstanding. Subject to Article 7, the
fact and date of the execution of any such instrument and the amount and
numbers of Securities held by the Person so executing such instrument may also
be proven
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in accordance with such reasonable rules and regulations as may be prescribed
by the Trustee or in any other manner which the Trustee may deem sufficient.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the person in whose name any Registered Security shall be
registered upon the Security Register for such series as the absolute owner of
such Registered Security (whether or not such Registered Security shall be
overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the
Principal of and, subject to the provisions of this Indenture, interest on
such Registered Security and for all other purposes; and neither the Company
nor the Trustee nor any agent of the Company or the Trustee shall be affected
by any notice to the contrary.
SECTION 11.6 Rules by Trustee, Paying Agent or Registrar. The Trustee
may make reasonable rules for action by or at a meeting of Holders. The Paying
Agent or Registrar may make reasonable rules for its functions.
SECTION 11.7 Payment Date Other Than a Business Day. If any date for
payment of Principal or interest on any Security shall not be a Business Day
at any place of payment, then payment of Principal of or interest on such
Security, as the case may be, need not be made on such date, but may be made
on the next succeeding Business Day at any place of payment with the same
force and effect as if made on such date and no interest shall accrue in
respect of such payment for the period from and after such date.
SECTION 11.8 Governing Law. The laws of the State of New York
(without regard to conflicts of laws principles thereof) shall govern this
Indenture and the Securities.
SECTION 11.9 No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture
or agreement may not be used to interpret this Indenture.
SECTION 11.10 Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 11.11 Duplicate Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
SECTION 11.12 Separability. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
69
SECTION 11.13 Table of Contents, Headings, Etc. The Table of Contents
and headings of the Articles and Sections of this Indenture have been inserted
for convenience of reference only and are not to be considered a part hereof
and shall in no way modify or restrict any of the terms and provisions hereof.
SECTION 11.14 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or any indenture
supplemental hereto, or in any Security or any coupons appertaining thereto,
or because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer, director or employee, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of
law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities and the coupons appertaining thereto by the holders thereof and as
part of the consideration for the issue of the Securities and the coupons
appertaining thereto.
SECTION 11.15 Judgment Currency. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the Principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the Market
Exchange Rate on the day on which final unappealable judgment is entered,
unless such day is not a Business Day in The City of New York, in which case
the rate of exchange used shall be the Market Exchange Rate on the Business
Day preceding the day on which final unappealable judgment is entered and (b)
its obligations under this Indenture to make payments in the Required Currency
(i) shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by the payee,
of the full amount of the Required Currency expressed to be payable in respect
of such payments, (ii) shall be enforceable as an alternative or additional
cause of action for the purpose of recovering in the Required Currency the
amount, if any, by which such actual receipt shall fall short of the full
amount of the Required Currency so expressed to be payable and (iii) shall not
be affected by judgment being obtained for any other sum due under this
Indenture.
SECTION 11.16 Moneys of Different Currencies To Be Segregated. The
Trustee shall segregate moneys, funds and accounts held by the Trustee
hereunder in one currency (or currency unit) from any moneys, funds or
accounts in any other currencies (or currency units), notwithstanding any
provision herein which would otherwise permit the Trustee to commingle such
amounts.
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SECTION 11.17 Language of Notices, etc. Any request, demand,
authorization, direction, notice, consent or waiver required or permitted
under this Indenture shall be in the English language, except that any
published notice may be in an official language of the country of publication.
SECTION 11.18 Changes in Exhibits. At any time and from time to time,
the Company may substitute a new form, or add new forms, of the Exhibits
hereto. Such substitution shall be effective upon receipt by the Trustee of
such new form of Exhibit and a Board Resolution or Officers' Certificate
adopting such new form of Exhibit, and thereafter all references in this
Indenture to such Exhibit shall be deemed to refer to such new form of
Exhibit.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
(SEAL) ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC.,
Attest: as the Company
By:
------------------------- ---------------------------------
Name:
Title:
(SEAL) [_________________________],
Attest: as Trustee
By:
------------------------- ---------------------------------
Name:
Title:
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On the _______________ day of ________________1997, before me
personally came _______________________, to me known, who, being by me duly
sworn, did depose and say that he is ________________________ of ▇▇▇▇▇▇▇▇▇,
LUFKIN & ▇▇▇▇▇▇▇▇, INC., one of the corporations described in and which
executed the foregoing instrument; that he knows the sealof said corporation;
that the seal affixed to said instrument is such corporate seal; that it was
so affixed by authority of the Board of Directors of said corporation; and
that he signed his name thereto by like authority.
---------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _______________ day of ________________1997, before me
personally came _______________________, to me known, who, being by me duly
sworn, did depose and say that he is ________________________ of [____________
____________________], one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was
so affixed by authority of the Board of Directors of said corporation; and that
he signed his name thereto by like authority.
---------------------------
Notary Public
73
EXHIBIT A
[FORMS OF CERTIFICATION]
EXHIBIT A.1
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE UNREGISTERED SECURITY]
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that, as of the date hereof, the above-captioned
Securities (i) are owned by persons that are not United States persons, (ii)
are owned by United States person(s) that (a) are foreign branches of a United
States financial institution (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution hereby agrees, on
its own behalf or through its agent, that you may advise the issuer or the
issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period
(as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and
in addition if the owner of the Securities is a United States or foreign
financial institution described in clause (iii) above (whether or not also
described in clause (i) or (ii)) this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States or any political
subdivision thereof, an estate the income of which is subject to United States
Federal income taxation regardless of its source, or a trust with respect to
the administration of which a court within the United States is able to
exercise primary supervision and one or more United States fiduciaries have
the authority to control all substantial decisions of the trust.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on
74
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certification excepts and does not relate to $__________ of
such interest in the above Securities in respect of which we are not able to
certify and as to which we understand exchange and delivery of definitive
Securities (or, if relevant, exercise of any rights or collection of any
interest) cannot be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or
would be relevant, we irrevocably authorize you to produce this certification
to any interested party in such proceedings.
Dated: _______________, 19___
[To be dated on or after
________________ , 19 (the date
determined as provided in the
Indenture)]
[Name of Person Entitled to
Receive Unregistered Security]
-----------------------------
(Authorized Signatory)
Name:
Title:
75
EXHIBIT A.2
[FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY ON THE EARLIER OF
THE FIRST ACTUAL PAYMENT OF INTEREST
OR THE DATE OF DELIVERY OF THE
OBLIGATION IN DEFINITIVE FORM]
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify, based solely on certifications we have received
in writing, by tested telex or by electronic transmission from member
organizations (Our "Member Organizations") with respect to $_____________
principal amount of the above-captioned Securities that such obligation (i) is
owned by persons that are not United States persons, (ii) is owned by United
States persons that (a) are foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v) ("financial institutions")) purchasing for their own account
or for resale, or (b) acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution has agreed, on its
own behalf or through its agent, that we may advise the Issuer or the Issuer's
agent that it will comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institutions for purposes of resale during the restricted period (as defined
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the
further effect that United States or foreign financial institutions described
in clause (iii) above (whether or not also described in clause (i) or (ii))
have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any
interest) any portion of the Temporary Global Security excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of
the part submitted herewith for exchange (or, if relevant, exercise of any
rights or collection of any interest) are no longer true and cannot be relied
upon as of the date hereof.
76
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or
would be relevant, we irrevocably authorize you to produce this certification
to any interested party in such proceedings.
Date: _________________, 19____
[To be dated no earlier than
the Exchange Date]
[▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE, as
Operator of the Euroclear System]
[CEDEL]
By
------------------------------
77