Exhibit 4(c)
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CITIGROUP FUNDING INC.
Issuer
CITIGROUP INC.
Guarantor
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INDENTURE
Dated as of June 1, 2005
Subordinated Securities
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DEUTSCHE BANK TRUST COMPANY AMERICAS
Trustee
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TABLE OF CONTENTS*
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ARTICLE ONE
DEFINITIONS
Section 101. Definitions.............................................. 2
ARTICLE TWO
FORMS OF SECURITIES
Section 201. Terms of the Securities.................................. 13
Section 202. Form of Bearer Security.................................. 14
Section 203. Form of Trustee's Certificate of Authentication.......... 14
Section 204. Form of Trustee's Certificate of Authentication by an
Authenticating Agent.................................. 15
ARTICLE THREE
THE DEBT SECURITIES
Section 301. Amount Unlimited; Issuable in Series..................... 15
Section 302. Denominations............................................ 18
Section 303. Execution, Authentication, Delivery and Dating........... 18
Section 304. Temporary Securities..................................... 21
Section 305. Registrar and Paying Agent............................... 22
Section 306. Transfer and Exchange.................................... 23
Section 307. Mutilated, Destroyed, Lost and Stolen Securities......... 27
Section 308. Payment of Interest; Interest Rights Preserved........... 28
Section 309. Cancellation............................................. 31
Section 310. Computation of Interest.................................. 31
Section 311. Currency of Payments in Respect of Securities............ 31
Section 312. Judgments................................................ 32
Section 313. CUSIP Numbers............................................ 32
ARTICLE FOUR
REDEMPTION OF SECURITIES
Section 401. Applicability of Right of Redemption..................... 32
Section 402. Tax Redemption; Special Tax Redemption................... 33
Section 403. Selection of Securities to be Redeemed................... 35
Section 404. Notice of Redemption..................................... 35
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* The Table of Contents is not a part of the Indenture.
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Section 405. Deposit of Redemption Price.............................. 36
Section 406. Securities Payable on Redemption Date.................... 37
Section 407. Securities Redeemed in Part.............................. 37
ARTICLE FIVE
SINKING FUNDS
Section 501. Applicability of Sinking Fund............................ 38
Section 502. Mandatory Sinking Fund Obligation........................ 38
Section 503. Optional Redemption at Sinking Fund Redemption Price..... 38
Section 504. Application of Sinking Fund Payment...................... 39
ARTICLE SIX
PARTICULAR COVENANTS OF THE COMPANY
Section 601. Payments of Securities................................... 40
Section 602. Payment of Additional Interest........................... 40
Section 603. Paying Agent............................................. 42
Section 604. To Hold Payment in Trust................................. 43
Section 605. Merger, Consolidation and Sale of Assets................. 44
Section 606. Compliance Certificate................................... 45
Section 607. Conditional Waiver by Holders of Securities.............. 45
Section 608. Statement by Officers as to Default...................... 45
Section 609. Issuances of Securities under this Indenture............. 45
ARTICLE SEVEN
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
Section 701. Events of Default........................................ 46
Section 702. Acceleration; Recission and Annulment.................... 47
Section 703. Other Remedies........................................... 49
Section 704. Trustee as Attorney-in-Fact.............................. 49
Section 705. Priorities............................................... 50
Section 706. Control by Holders; Waiver of Past Defaults.............. 51
Section 707. Limitation on Suits...................................... 51
Section 708. Undertaking for Costs.................................... 52
Section 709. Remedies Cumulative...................................... 52
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ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 801. Evidence of Action of Securityholders.................... 52
Section 802. Proof of Execution or Holding of Securities.............. 53
Section 803. Persons Deemed Owners.................................... 54
Section 804. Revocation of Consents................................... 54
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
Section 901. Purposes of Meetings..................................... 55
Section 902. Call of Meetings by Trustee.............................. 55
Section 903. Call of Meetings by Company or Securityholders........... 55
Section 904. Qualifications for Voting................................ 55
Section 905. Regulation of Meetings................................... 56
Section 906. Voting................................................... 56
Section 907. No Relay of Rights by Meeting............................ 57
ARTICLE TEN
REPORTS BY THE COMPANY, THE GUARANTOR AND THE TRUSTEE AND
SECURITYHOLDERS' LISTS
Section 1001. Reports by Trustee....................................... 57
Section 1002. Reports by the Company and the Guarantor................. 57
Section 1003. Securityholders' Lists................................... 58
ARTICLE ELEVEN
CONCERNING THE TRUSTEE
Section 1101. Rights of Trustees; Compensation and Indemnity........... 58
Section 1102. Duties of Trustee........................................ 61
Section 1103. Notice of Defaults....................................... 62
Section 1104. Eligibility; Disqualification............................ 62
Section 1105. Registration and Notice; Removal......................... 63
Section 1106. Successor Trustee by Appointment......................... 63
Section 1107. Successor Trustee by Merger.............................. 65
Section 1108. Right to Rely on Officer's Certificate................... 65
Section 1109. Appointment of Authenticating Agent...................... 65
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Section 1110. Communications by Holders with Other Holders............. 66
ARTICLE TWELVE
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 1201. Applicability of Article................................. 66
Section 1202. Satisfaction and Discharge of Indenture.................. 66
Section 1203. Defeasance upon Deposit of Moneys or U.S Government
Obligations........................................... 67
Section 1204. Repayment to Company..................................... 69
Section 1205. Indemnity for U.S. Government Obligations................ 69
Section 1206. Deposits to Be Held in Escrow............................ 69
Section 1207. Application of Trust Money............................... 70
Section 1208. Deposits of Non-U.S. Currencies.......................... 70
Section 1209. Subordination Provisions Inapplicable.................... 70
ARTICLE THIRTEEN
IMMUNITY OF CERTAIN PERSONS
Section 1301. No Personal Liability.................................... 70
ARTICLE FOURTEEN
SUPPLEMENTAL INDENTURES
Section 1401. Without Consent of Holders............................... 71
Section 1402. With Consent of Holders; Limitations..................... 73
Section 1403. Trustee Protected........................................ 74
Section 1404. Effect of Execution of Supplemental Indenture............ 75
Section 1405. Notation on or Exchange of Securities.................... 75
Section 1406. Conformity with TIA...................................... 75
Section 1407. Subordination Unimpaired................................. 75
ARTICLE FIFTEEN
GUARANTEE
Section 1501. Unconditional Guarantee.................................. 76
Section 1502. Execution and Delivery of Guarantee...................... 77
Section 1503. Waiver of Subrogation.................................... 78
Section 1504. Limitation on Liens...................................... 78
Section 1505. Merger, Consolidation and Sale of Assets................. 79
Section 1506. Assumption by Guarantor.................................. 80
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Section 1507. Article Fifteen Applicable to Paying Agent............... 80
Section 1508. No Suspension of Remedies................................ 80
ARTICLE SIXTEEN
SUBORDINATION
Section 1601. Securities and Coupons Subordinated to Citigroup Funding
Senior Indebtedness................................... 80
Section 1602. Disputes with Holders of Certain Citigroup Funding Senior
Indebtedness.......................................... 82
Section 1603. Subrogation With Respect to Citigroup Funding Senior
Indebtedness.......................................... 82
Section 1604. Obligation of the Company Unconditional.................. 83
Section 1605. Payments by the Company on Securities and Coupons
Permitted............................................. 83
Section 1606. Guarantee Subordinated to Citigroup Senior Indebtedness.. 83
Section 1607. Disputes with Holders of Certain Citigroup Senior
Indebtedness.......................................... 85
Section 1608. Subrogation With Respect to Citigroup Senior
Indebtedness.......................................... 85
Section 1609. Obligation of the Guarantor Unconditional................ 85
Section 1610. Payments by the Guarantor on Securities and Coupons
Permitted............................................. 86
Section 1611. Effectuation of Subordination by Trustee................. 86
Section 1612. Knowledge of Trustee..................................... 86
Section 1613. Trustee May Hold Senior Indebtedness..................... 86
Section 1614. Rights of Holders of Senior Indebtedness Not Impaired.... 87
Section 1615. Article Applicable to Paying Agents...................... 87
Section 1616. Trustee; Compensation Not Prejudiced..................... 87
ARTICLE SEVENTEEN
MISCELLANEOUS PROVISIONS
Section 1701. Consolidation, Merger, Sale or Lease..................... 87
Section 1702. Certificates and Opinions as to Conditions Precedent..... 88
Section 1703. Trust Indenture Act Controls............................. 89
Section 1704. What Constitutes Action by Board of Directors............ 89
Section 1705. Notices to the Company, Guarantor and Trustee............ 89
Section 1706. Notices to Holders; Waiver............................... 90
Section 1707. Legal Holiday............................................ 90
Section 1708. Effects of Headings and Table of Contents................ 91
Section 1709. Successors and Assigns................................... 91
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Section 1710. Separability Clause...................................... 91
Section 1711. Benefits of Indenture.................................... 91
Section 1712. Counterparts Originals................................... 91
Section 1713. Governing Law............................................ 91
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INDENTURE dated as of June 1, 2005, among Citigroup Funding Inc., a
corporation organized and existing under the laws of the State of Delaware (the
"Company"), Citigroup Inc., a corporation organized and existing under the laws
of the State of Delaware, as guarantor (the "Guarantor"), and Deutsche Bank
Trust Company Americas, a New York banking corporation, as trustee (the
"Trustee").
WITNESSETH:
WHEREAS, the Company is authorized and empowered to borrow money for its
purposes and to issue its bonds, debentures, notes and other obligations for
money so borrowed; and
WHEREAS, the Company has duly authorized the issue, in one or more series
as in this Indenture provided, from time to time of its subordinated debt
securities (the "Securities") and, to provide the general terms and conditions
upon which the Securities are to be authenticated, issued and delivered, the
Company has duly authorized the execution and delivery of this Indenture;
WHEREAS, the Guarantor has duly authorized the full and unconditional
guarantee of the Securities, and to provide the general terms and conditions of
the Securities and the guarantee of same, the Guarantor has duly authorized the
execution and delivery of this Indenture;
WHEREAS, the Trustee has power to enter into this Indenture and to accept
and execute the trust herein created;
WHEREAS, each of the Company and the Guarantor jointly and severally
represents that all acts and things necessary to make the Securities, when
executed by the Company and authenticated and delivered by the Trustee as in
this Indenture provided, and issued, the valid, binding and legal obligation of
the Company, will, at the time of such execution, authentication and delivery,
have been done and performed, that all acts and things necessary to constitute
these presents a valid indenture and agreement according to its terms, have been
done and performed, that the execution of this Indenture has in all respects
been duly authorized and that the issue hereunder of the Securities will, at the
time of the issue thereof, have in all respects been duly authorized, and each
of the Company and the Guarantor, in the exercise of each and every legal right
and power in it vested, executes this Indenture and proposes to make, execute,
issue and deliver, in case of the Company, and guarantee, in the case of the
Guarantor, the Securities;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, for the benefit of the other parties and for the equal and
proportionate benefit of all of the present and future holders of the
Securities, each party agrees and covenants as follows:
ARTICLE ONE
DEFINITIONS
Section 101. Definitions.
(a) Unless otherwise defined in this Indenture or the context otherwise
requires, all terms used herein shall have the meanings assigned to them in the
Trust Indenture Act.
(b) Unless the context otherwise requires, the terms defined in this
Section 101(b) shall for all purposes of this Indenture have the meanings
hereinafter set forth, the following definitions to be equally applicable to
both the singular and the plural forms of any of the terms herein defined:
Affected Security:
The term "Affected Security" shall have the meaning specified in Section
402(b).
Affiliate:
The term "Affiliate," with respect to any specified Person shall mean any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
Authenticating Agent:
The term "Authenticating Agent" shall have the meaning assigned to it in
Section 1109.
Authorized Newspaper:
The term "Authorized Newspaper" shall mean a newspaper in an official
language of the country of publication customarily published at least once a
day, and customarily published for at least five days in each calendar week, and
of general circulation in such city or cities specified pursuant to Section 301
with respect to the Securities of any series. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day in such city.
Bearer Security:
The term "Bearer Security" shall mean any Security (with or without
Coupons), title to which passes by delivery only, but does not include any
Coupons.
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Board of Directors:
The term "Board of Directors" shall mean either the board of directors of
the Company or the Guarantor, as applicable, or the executive or any other
committee of that board duly authorized to act in respect hereof.
Board Resolution:
The term "Board Resolution" shall mean a copy of a resolution or
resolutions certified by the Secretary or an Assistant Secretary of the Company
or the Guarantor, as applicable, to have been duly adopted by the Board of
Directors (or by the Finance Committee of the Board of Directors or any other
committee of the Board of Directors or committee of officers or other
representatives of the Company or the Guarantor, as applicable, to the extent
that any such other committee or committees have been authorized by the Board of
Directors to establish or approve the matters contemplated) and to be in full
force and effect on the date of such certification and delivered to the Trustee.
Business Day:
The term "Business Day," when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the
Securities, shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
other location are authorized or obligated by law or executive order to close.
Citigroup Senior Indebtedness:
The term "Citigroup Senior Indebtedness" means (i) the principal, premium,
if any, and interest in respect of (A) indebtedness of the Guarantor for money
borrowed and (B) indebtedness evidenced by securities, notes, debentures, bonds
or other similar instruments issued by the Guarantor, including all indebtedness
to be issued under that certain indenture dated as of June 1, 2005 among the
Company, the Guarantor and The Bank of New York, as such may be amended,
modified or supplemented from time to time; (ii) all capital lease obligations
of the Guarantor; (iii) all obligations of the Guarantor issued or assumed as
the deferred purchase price of property, all conditional sale obligations of the
Guarantor and all obligations of the Guarantor under any conditional sale or
title retention agreement (but excluding trade accounts payable in the ordinary
course of business); (iv) all obligations, contingent or otherwise, of the
Guarantor in respect of any letters of credit, bankers acceptance, security
purchase facilities and similar credit transactions; (v) all obligations of the
Guarantor in respect of interest rate swap, cap or other agreements, interest
rate future or options contracts, currency swap agreements, currency future or
option contracts and other similar agreements; (vi) all obligations of the type
referred to in clauses (i) through (v) above of other Persons for the payment of
which the Guarantor is responsible or liable as obligor, guarantor or otherwise;
and (vii) all obligations of the type referred to in clauses (i) through (vi)
above of other Persons secured by any lien on any property or asset of the
Guarantor (whether or not such obligation is assumed by the Guarantor), except
that Citigroup Senior Indebtedness does not include (1) any indebtedness issued
prior to May 3, 2005 under that certain subordinated debt indenture with J.P.
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▇▇▇▇▇▇ Trust Company, as trustee, dated as of April 12, 2001, as supplemented;
(2) any indebtedness issued by the Guarantor under that certain indenture with
Bank One Trust Company, N.A., dated as of July 17, 1998, as supplemented; (3)
any indebtedness issued to a Citigroup Trust prior to May 31, 2004 under that
certain indenture, dated as of October 7, 1996, between the Guarantor (formerly
known as Travelers Group Inc.) and JPMorgan Chase Bank, N.A. (formerly known as
The Chase Manhattan Bank), as supplemented (the "1996 Junior Subordinated Debt
Indenture"); (4) any guarantee entered into by the Guarantor prior to May 31,
2004 in respect of any preferred securities, capital securities or preference
stock of a Citigroup Trust to which the Guarantor issued any indebtedness under
the 1996 Junior Subordinated Debt Indenture; (5) any indebtedness issued to a
Citigroup Trust prior to May 3, 2005 under that certain indenture, dated as of
July 23, 2004, between Citigroup and JPMorgan Chase Bank (the "2004 Junior
Subordinated Debt Indenture"); (6) any guarantee entered into by the Guarantor
prior to May 3, 2005 in respect of any preferred securities, capital securities
or preference stock of a Citigroup Trust to which the Guarantor issued any
indebtedness under the 2004 Junior Subordinated Debt Indenture; and (7) any
indebtedness or any guarantee that is by its terms subordinated to or pari passu
with the Securities and the issuance of which, in the case of this clause (7)
only, (x) has received the concurrence or approval of the staff of the Federal
Reserve Bank of New York or the staff of the Board of Governors of the Federal
Reserve System or (y) does not at the time of issuance prevent the Securities
from qualifying for Tier 2 capital treatment (irrespective of any limits on the
amount of the Guarantor's Tier 2 capital) under the applicable capital adequacy
guidelines, regulations, policies or published interpretations of the Board of
Governors of the Federal Reserve System.
Citigroup Trust:
The term "Citigroup Trust" means each of Citigroup Capital II, Citigroup
Capital III, Citigroup Capital VII, Citigroup Capital VIII, Citigroup Capital
IX, Citigroup Capital X and Citigroup Capital XI, each a Delaware statutory
trust.
Citigroup Funding Senior Indebtedness:
The term "Citigroup Funding Senior Indebtedness" means (i) the principal,
premium, if any, and interest in respect of (A) indebtedness of the Company for
money borrowed and (B) indebtedness evidenced by securities, notes, debentures,
bonds or other similar instruments issued by the Company, including all
indebtedness to be issued under that certain indenture dated as of June 1, 2005
among the Company, the Guarantor and The Bank of New York, as such may be
amended, modified or supplemented from time to time; (ii) all capital lease
obligations of the Company; (iii) all obligations of the Company issued or
assumed as the deferred purchase price of property, all conditional sale
obligations of the Company and all obligations of the Company under any
conditional sale or title retention agreement (but excluding trade accounts
payable in the ordinary course of business); (iv) all obligations, contingent or
otherwise, of the Company in respect of any letters of credit, bankers
acceptance, security purchase facilities and similar credit transactions; (v)
all obligations of the Company in respect of interest rate swap, cap or other
agreements, interest rate future or options contracts, currency swap agreements,
currency future or option contracts and other similar agreements; (vi) all
obligations of the type referred to in clauses (i) through (v) above of other
Persons for the payment of which the Company is responsible or liable as
obligor, guarantor or otherwise; and (vii) all obligations of the type
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referred to in clauses (i) through (vi) above of other Persons secured by any
lien on any property or asset of the Company (whether or not such obligation is
assumed by the Company), except that Citigroup Funding Senior Indebtedness does
not include any indebtedness or any guarantee that is by its terms subordinated
to or pari passu with the Securities and the issuance of which (x) has received
the concurrence or approval of the staff of the Federal Reserve Bank of New York
or the staff of the Board of Governors of the Federal Reserve System or (y) does
not at the time of issuance prevent the Securities from qualifying for Tier 2
capital treatment (irrespective of any limits on the amount of the Guarantor's
Tier 2 capital) under the applicable capital adequacy guidelines, regulations,
policies or published interpretations of the Board of Governors of the Federal
Reserve System.
Code:
The term "Code" shall mean the Internal Revenue Code of 1986 as in effect
on the date hereof.
Company:
The term "Company" shall mean Citigroup Funding Inc., a corporation
organized and existing under the laws of the State of Delaware and, subject to
the provisions of Section 1701, shall also include its successors and assigns.
Company Order; Company Request:
The term "Company Order" or "Company Request" shall mean, respectively, a
written order or request signed in the name of the Company by the Chairman, the
President or a Vice President (any reference to a Vice President of the Company
herein shall be deemed to include any Vice President of the Company whether or
not designated by a number or word or words and before or after the title "Vice
President"), and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
Corporate Trust Office:
The term "Corporate Trust Office," or other similar term, shall mean the
principal office of the Trustee in the Borough of Manhattan, The City of New
York, at which at any particular time its corporate trust business shall be
administered, which office at the date hereof is located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ - ▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration, or such other address as the Trustee may designate from time to
time by notice to the holders, the Company and the Guarantor, or the principal
corporate trust officer of any successor Trustee (or such other address as such
successor Trustee may designate from time to time by notice to the holders, the
Company and the Guarantor).
Coupon:
The term "Coupon" shall mean any interest coupon appertaining to any Bearer
Security.
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Coupon Security:
The term "Coupon Security" shall mean any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
Currency:
The term "Currency" shall mean U.S. Dollars or Foreign Currency.
Default:
The term "Default" shall have the meaning assigned to it in Section 1103.
Defaulted Interest:
The term "Defaulted Interest" shall have the same meaning assigned to it in
Section 308(e).
Depositary:
The term "Depositary" shall mean, with respect to the Securities of any
series issuable in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 301 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
Securities of that series.
Discharged:
The term "Discharged" shall have the meaning assigned to it in Section
1203.
Event of Default:
The term "Event of Default" shall have the meaning specified in Section
701.
Exchange Act:
The term "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
Floating Rate Security:
The term "Floating Rate Security" shall mean a Security that provides for
the payment of interest at a variable rate determined periodically by reference
to an interest rate index specified pursuant to Section 301.
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Foreign Currency:
The term "Foreign Currency" shall mean a currency issued by the government
of any country other than the United States or a composite currency, the value
of which is determined by reference to the values of the currencies of any group
of countries.
GAAP:
The term "GAAP", with respect to any computation required or permitted
hereunder, shall mean generally accepted accounting principles in effect in the
United States of America which are applicable at the date of such computation
and which are consistently applied for all applicable periods.
Global Security:
The term "Global Security" shall mean any Registered or Bearer Security
evidencing all or part of a series of Securities, issued in fully-registered
certificated form to the Depositary for such series in accordance with Section
303 and bearing the legend prescribed in Section 303(g).
Guarantee:
The term "Guarantee" shall mean the guarantee of the Company's obligations
under this Indenture and the Securities by the Guarantor pursuant to Article
Fifteen.
Guarantor:
The term "Guarantor" shall mean Citigroup Inc., a Delaware corporation, and
its successors and permitted assigns.
Indebtedness:
The term "Indebtedness" shall mean any and all obligations of a Person for
money borrowed which, in accordance with GAAP, would be reflected on the balance
sheet of such Person as a liability on the date as of which Indebtedness is to
be determined.
Indenture:
The term "Indenture" or "this Indenture" shall mean this instrument and all
indentures supplemental thereto.
interest:
The term "interest" shall mean, with respect to an Original Issue Discount
Security that by its terms bears interest only after Maturity, interest payable
after Maturity, and, when used with respect to a Bearer Security, includes any
additional interest payable on such Bearer Security pursuant to Sections 402 and
602.
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Interest Payment Date:
The term "Interest Payment Date" shall mean, with respect to any Security,
the Stated Maturity of an installment of interest on such Security.
Mandatory Sinking Fund Payment:
The term "Mandatory Sinking Fund Payment" shall have the meaning assigned
to it in Section 501.
Maturity:
The term "Maturity," with respect to any Security, shall mean the date on
which the principal of such Security shall become due and payable as therein and
herein provided, whether by declaration, call for redemption or otherwise.
Members:
The term "Members" shall have the meaning assigned to it in Section 303(i).
Officers' Certificate:
The term "Officers' Certificate" when used (i) with respect to the Company,
shall mean a certificate signed by the Chairman, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary of the Company and (ii) with respect to the
Guarantor, shall mean a certificate signed by the Chairman, any Vice Chairman,
the President, any Vice President, the Chief Financial Officer, the Chief
Accounting Officer, the General Counsel, the Controller or any Deputy Controller
and by the Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Guarantor and, in each case, delivered to the Trustee. Each
such certificate shall include the statements provided for in Section 1702 if
and to the extent required by the provisions of such Section. One of the
officers giving an Officers' Certificate pursuant to Section 608 shall be the
principal executive officer, principal financial officer or principal accounting
officer of the Company.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel, who may be an employee of or of counsel to the Company or
Guarantor, or may be other counsel satisfactory to the Trustee. Each such
opinion shall include the statements provided for in Section 1702 if and to the
extent required by the provisions of such Section.
Optional Sinking Fund Payment:
The term "Optional Sinking Fund Payment" shall have the meaning assigned to
it in Section 501.
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Original Issue Discount Security:
The term "Original Issue Discount Security" shall mean any Security that is
issued with "original issue discount" within the meaning of Section 1273(a) of
the Code and the regulations thereunder and any other Security designated by the
Company as issued with original issue discount for United States federal income
tax purposes.
Outstanding:
The term "Outstanding," when used with respect to Securities means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities or portions thereof for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the holders of such Securities or from its obligations
with respect to which the Company shall have been Discharged; provided,
however, that if such Securities or portions thereof are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(iii) Securities that have been paid pursuant to Section 307 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a protected purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the holders of the requisite
principal amount of Securities Outstanding have performed any action hereunder,
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such action, only Securities that a
Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right to act with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor. In determining whether the holders of the
requisite principal amount of Outstanding Securities have performed any action
hereunder, the principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding for such purpose shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 702 and the principal amount of a Security denominated in a
Foreign Currency that shall be deemed to be Outstanding for such purpose shall
be the amount calculated pursuant to Section 311(c).
9
Paying Agent:
The term "Paying Agent" shall mean any Person authorized by the Company to
pay the principal of and premium, if any, or interest on any Securities or to
pay Coupons on behalf of the Company.
Person:
The term "Person" shall mean an individual, a corporation, a limited
liability company, a partnership, an association, a joint stock company, a
trust, an unincorporated organization or a government or an agency or political
subdivision thereof.
Place of Payment:
The term "Place of Payment" shall mean, when used with respect to the
Securities of any series, the place or places where the principal of and
premium, if any, and interest on the Securities of that series are payable as
specified pursuant to Section 301.
Predecessor Security:
The term "Predecessor Security" shall mean, with respect to any Security,
every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security, and, for the purposes of this definition,
any Security authenticated and delivered under Section 307 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
Record Date:
The term "Record Date" shall mean, with respect to any interest payable on
any Registered Security on any Interest Payment Date, the close of business on
the date specified in such Registered Security for the payment of interest
pursuant to Section 301.
Redemption Date:
The term "Redemption Date" shall mean, when used with respect to any
Security to be redeemed, in whole or in part, the date fixed for such redemption
by or pursuant to this Indenture and the terms of such Security, which, in the
case of a Floating Rate Security, unless otherwise specified pursuant to Section
301, shall be an Interest Payment Date only.
Redemption Price:
The term "Redemption Price" shall mean, in the case of an Original Issue
Discount Security, the amount of the principal and interest that would be due
and payable as of the Redemption Date upon a declaration of acceleration of the
Maturity thereof pursuant to Section 702 and, in the case of any other Security,
the principal amount thereof, plus, in each case, premium, if any, and accrued
and unpaid interest, if any, to the Redemption Date.
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Register:
The term "Register" shall have the meaning assigned to it in Section
305(a).
Registrar:
The term "Registrar" shall have the meaning assigned to it in Section 305.
Registered Security:
The term "Registered Security" shall mean any Security registered as to
principal and interest in the Register.
Responsible Officers:
The term "Responsible Officers" of the Trustee hereunder shall mean any
vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, any trust officer, any assistant trust officer or any other
officer associated with the corporate trust department of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such
person's knowledge of and familiarity with the particular subject and, in the
case of any such officer, who shall have direct responsibility for the
administration of this Indenture.
SEC:
The term "SEC" shall mean the U.S. Securities and Exchange Commission.
Securities Act:
The term "Securities Act" shall mean the Securities Act of 1933, as
amended.
Security:
The term "Security" shall mean one of the Securities duly authenticated by
the Trustee and delivered pursuant to the provisions of this Indenture.
Security Custodian:
The term "Security Custodian" shall mean the custodian with respect to any
Global Security appointed by the Depositary, or any successor Person thereto,
and shall initially be the Paying Agent.
Securityholder; holder of Securities;
holder; registered holder:
The term "Securityholder" or "holder of Securities" or "holder" or
"registered holder," with respect to a Registered Security, shall mean the
Person in whose name such Securities shall
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be registered in the Register kept for that purpose hereunder and, with respect
to a Bearer Security or Coupon, the bearer thereof.
Senior Indebtedness:
The term "Senior Indebtedness" shall mean Citigroup Senior Indebtedness
together with Citigroup Funding Senior Indebtedness.
Significant Subsidiary:
The term "Significant Subsidiary" shall have the meaning assigned to it in
Section 1504.
Special Record Date:
The term "Special Record Date" shall have the meaning assigned to it in
Section 308(e)(i).
Stated Maturity:
The term "Stated Maturity" when used with respect to any Security or any
installment of interest thereon, shall mean the date specified in such Security
or the Coupons, if any, as the fixed date on which the principal (or any portion
thereof) of or premium, if any, on such Security or such installment of interest
is due and payable.
Subsidiary:
The term "Subsidiary," when used with respect to any Person, shall mean any
corporation or other entity of which a majority of (a) the voting power of the
voting equity securities or (b) in the case of a partnership or any other entity
other than a corporation, the outstanding equity interests of which are owned,
directly or indirectly, by such Person. For the purposes of this definition,
"voting equity securities" means equity securities having voting power for the
election of directors, whether at all times or only so long as no senior class
of securities has such voting power by reason of any contingency.
Successor Company:
The term "Successor Company" shall have the meaning assigned to it in
Section 306(j).
Trust Indenture Act; TIA:
The term "Trust Indenture Act" or "TIA" shall mean the Trust Indenture Act
of 1939, as amended, except as otherwise provided in this Indenture.
Trustee:
The term "Trustee" shall mean the trustee hereunder for the time being,
whether original or 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.
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U.S. Dollars:
The term "U.S. Dollars" shall mean such currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
U.S. Government Obligations:
The term "U.S. Government Obligations" shall mean either (i) direct
obligations of the United States of America or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America, the payment of which is unconditionally guaranteed by
the full faith and credit of the United States of America.
United States:
The term "United States" shall mean the United States of America (including
the States and the District of Columbia), its territories and its possessions
and other areas subject to its jurisdiction.
United States Alien:
The term "United States Alien" shall mean any Person who, for United States
federal income tax purposes, is a foreign corporation, a nonresident alien
individual, a nonresident alien fiduciary of a foreign estate or trust, or a
foreign partnership, one or more members of which is, for United States federal
income tax purposes, a foreign corporation, a nonresident alien individual or a
nonresident alien fiduciary of a foreign estate or trust.
Voting Stock:
The term "Voting Stock" shall have the meaning specified in Section 1504.
Certain other terms, relating principally to provisions included in this
Indenture in compliance with the Trust Indenture Act, are defined in Article
Eleven.
ARTICLE TWO
FORMS OF SECURITIES
Section 201. Terms of the Securities.
(a) The Securities and the Coupons, if any, of each series shall be
substantially in one of the forms established by or pursuant to a Board
Resolution and set forth in an Officers' Certificate or in one or more
indentures supplemental hereto, and shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements placed thereon as
the Company may deem appropriate and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any law or with any rule
or regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which any series of the Securities may be listed or of
any automated
13
quotation system on which any such series may be quoted, or to conform to usage,
all as determined by the officers executing such Securities and Coupons as
conclusively evidenced by their execution of such Securities and Coupons. If the
form of a series of Securities is established in or pursuant to a Board
Resolution, a copy of such Board Resolution shall be delivered to the Trustee at
or prior to the delivery of the Officers' Certificate setting forth the form of
such series.
(b) The terms and provisions of the Securities shall constitute, and are
hereby expressly made, a part of this Indenture, and, to the extent applicable,
the Company, the Guarantor and the Trustee, by their execution and delivery of
this Indenture expressly agree to such terms and provisions and to be bound
thereby.
Section 202. Form of Bearer Security.
(a) Each Bearer Security and Coupon shall bear a legend substantially to
the following effect:
"Any United States Person who holds this obligation will be subject to
limitations under the United States income tax laws, including the
limitations provided in Sections 165(j) and 1278(a) of the Internal Revenue
Code."
(b) The definitive Securities and Coupons, if any, of each series shall be
printed, lithographed or engraved or produced by any combination of these
methods on steel engraved borders or may be produced in any other manner,
provided that such manner is permitted by the rules of any securities exchange
on which such series of Securities may be listed or of any automated quotation
system on which such series may be quoted, all as determined by the officers
executing such Securities and Coupons, as conclusively evidenced by their
execution of such Securities and Coupons.
Section 203. Form of Trustee's Certificate of Authentication.
(a) Only such of the Securities as shall bear thereon a certificate
substantially in the form of the Trustee's certificate of authentication
hereinafter recited, executed by the Trustee by manual signature, shall be valid
or become obligatory for any purpose or entitle the holder thereof to any right
or benefit under this Indenture, and the certificate of authentication by the
Trustee upon any such Security executed on behalf of the Company as aforesaid
shall be conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the holder thereof is entitled to
the benefits of this Indenture.
(b) Each Security shall be dated the date of its authentication, except
that any Global Security shall be dated as of the date specified as contemplated
in Section 3.01.
(c) The form of the Trustee's certificate of authentication to be borne by
the Securities shall be substantially as follows:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued referred to in the
within-mentioned Indenture.
Deutsche Bank Trust Company Americas, as
Trustee
By:
------------------------------------
Authorized Officer
Section 204. Form of Trustee's Certificate of Authentication by an
Authenticating Agent. If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the Trustee's
Certificate of Authentication by such Authenticating Agent to be borne by
Securities of each such series shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued referred to in the
within-mentioned Indenture.
Deutsche Bank Trust Company Americas, as
Trustee
By:
------------------------------------
Authorized Officer
By:
------------------------------------
Authorized Officer
ARTICLE THREE
THE DEBT SECURITIES
Section 301. Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities that may be authenticated and delivered under this
Indenture is unlimited. The Securities may be issued in one or more series.
There shall be established by or pursuant to a Board Resolution of the Company,
and set forth in an Officers' Certificate of the Company, or established in one
or more indentures supplemental hereto, prior to the issuance of Securities of
any series:
(a) the title of the Securities of the series (which shall distinguish the
Securities of such series from the Securities of all other series, except to the
extent that additional Securities of an existing series are being issued);
15
(b) any limit upon the aggregate principal amount of the Securities of the
series that may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon transfer of, or in exchange for, or
in lieu of, other Securities of such series pursuant to Section 304, 306, 307,
407, or 1405);
(c) the dates on which or periods during which the Securities of the series
may be issued, and the dates on, or the range of dates within, which the
principal of and premium, if any, on the Securities and Coupons, if any, of such
series are or may be payable;
(d) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be determined,
the date or dates from which such interest shall accrue, or the method by which
such date or dates shall be determined, the Interest Payment Dates on which any
such interest shall be payable, and, in the case of Registered Securities, the
Record Dates for the determination of holders to whom interest is payable on
such Interest Payment Dates;
(e) if other than U.S. Dollars, the Currency in which Securities of the
series shall be denominated or in which payment of the principal of, premium, if
any, or interest on the Securities of the series shall be payable and any other
terms concerning such payment;
(f) if the amount of payment of principal of, premium, if any, or interest
on the Securities of the series may be determined with reference to an index,
formula or other method including, but not limited to, an index based on a
Currency or Currencies other than that in which the Securities are stated to be
payable, the manner in which such amounts shall be determined;
(g) if the principal of, premium, if any, or interest on Securities of the
series are to be payable, at the election of the Company or a holder thereof, in
a Currency other than that in which the Securities are denominated or stated to
be payable without such election, the period or periods within which, and the
terms and conditions upon which such election may be made and the time and the
manner of determining the exchange rate between the Currency in which the
Securities are denominated or payable without such election and the Currency in
which the Securities are to be paid if such election is made;
(h) the place or places, if any, in addition to or instead of the Corporate
Trust Office of the Trustee (in the case of Registered Securities) or the
principal London office of the Trustee (in the case of Bearer Securities) where
the principal of, premium, if any, and interest on Securities of the series
shall be payable;
(i) the price or prices at which, the period or periods within which or the
date or dates on which, and the terms and conditions upon which Securities of
the series may be redeemed, in whole or in part, at the option of the Company,
if the Company is to have that option;
(j) the obligation, if any, of the Company to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a holder thereof and the price or prices at which, the period
or periods within which or the date or dates on which, and the terms and
conditions upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
16
(k) if other than denominations of $1,000 or any integral multiple thereof,
the denominations in which Securities of the series shall be issuable;
(l) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 702;
(m) whether the Securities of the series are to be issued as Original Issue
Discount Securities and the amount of discount with which such Securities may be
issued;
(n) provisions, if any, for the defeasance of Securities of the series;
(o) whether the Securities of the series are to be issued in whole or in
part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Securities and the terms and conditions,
if any, upon which interests in such Global Security or Securities may be
exchanged in whole or in part for the individual Securities represented thereby;
(p) whether Securities of the series are to be issued as Registered
Securities or Bearer Securities or both, and, if Bearer Securities are issued,
whether Coupons will be attached thereto, whether Bearer Securities of the
series may be exchanged for Registered Securities of the series and the
circumstances under which and the places at which any such exchanges, if
permitted, may be made;
(q) if any Securities of the series are to be issued as Bearer Securities
or as one or more Global Securities representing individual Bearer Securities of
the series, (i) whether the provisions of Sections 402 and 602 or other
provisions for payment of additional interest or tax redemption shall apply and,
if other provisions shall apply, such other provisions; (ii) whether interest in
respect of any portion of a temporary Bearer Security of the series (delivered
pursuant to Section 304) payable in respect of any Interest Payment Date prior
to the exchange of such temporary Bearer Security for definitive Bearer
Securities of the series shall be paid to any clearing organization with respect
to the portion of such temporary Bearer Security held for its account and, in
such event, the terms and conditions (including any certification requirements)
upon which any such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest Payment
Date; and (iii) the terms upon which a temporary Bearer Security may be
exchanged for one or more definitive Bearer Securities of the series;
(r) the date as of which any Global Security of the series shall be dated
if other than the original issuance of the first Security of the series to be
issued;
(s) the form of the Securities of the series; and
(t) any other terms of the Securities of the series, including Events of
Default and/or additional covenants of the Company and/or the Guarantor (which
terms shall not be inconsistent with the requirements of the Trust Indenture Act
or the provisions of this Indenture).
17
All Securities of any one series and the Coupons, if any, appertaining thereto
shall be substantially identical, except as to denomination and except as may
otherwise be provided by or pursuant to such Board Resolution, and set forth in
such Officers' Certificate, or in any such indenture supplemental hereto. If any
of the terms of a series of Securities are established by action taken to a
Board Resolution, a copy of such Board Resolution shall be delivered to the
Trustee at or prior to the delivery of the Officers' Certificate setting forth
the terms of such series.
Section 302. Denominations. In the absence of any specification pursuant to
Section 301 with respect to Securities of any series, the Securities of such
series shall be issuable only as Registered Securities in denominations of any
integral multiple of $1,000, and shall be payable only in U.S. Dollars.
Section 303. Execution, Authentication, Delivery and Dating.
(a) The Securities and the Coupons, if any, shall be executed in the name
and on behalf of the Company by the manual or facsimile signature of its
Chairman of the Board of Directors, a Vice Chairman, its President or one of its
Vice Presidents, under its corporate seal (which may be printed, engraved or
otherwise reproduced thereon, by facsimile or otherwise), which shall be
attested by the manual or facsimile signature of its Secretary or one of its
Assistant Secretaries. If the Person whose signature is on a Security or Coupon,
if any, no longer holds that office at the time the Security or Coupon, if any,
is authenticated and delivered, the Security and Coupon, if any, shall
nevertheless be valid.
(b) At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, with appropriate Coupons, if
any, of any series, executed by the Company, to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such
Securities and Coupons. The Trustee shall thereupon authenticate and deliver
such Securities and Coupons without any further action by the Company. The
Company Order shall specify the amount of the Securities (and Coupons) to be
authenticated and the date on which the original issue of Securities (and
Coupons) is to be authenticated.
(c) In authenticating the first Securities and Coupons, if any, of any
series and accepting the additional responsibilities under this Indenture in
relation to such Securities and Coupons, if any, the Trustee shall receive, and
(subject to Section 1102) shall be fully protected in relying upon:
(i) the supplemental indenture or Board Resolution relating thereto
and, if applicable, an appropriate record of any action taken pursuant to
such supplemental indenture or resolution, certified by the Secretary or an
Assistant Secretary of the Company;
(ii) an Officer's Certificate of the Company and the Guarantor as to
the absence of any event that is, or after notice or lapse of time or both
would become, an Event of Default; and
18
(iii) an Opinion of Counsel prepared in accordance with Section 1702,
which shall state:
(A) that the form and terms of such Securities have been
established by or pursuant to one or more Board Resolutions, by a
supplemental indenture as permitted by Section 1401(m), or by both
such resolution or resolutions and such supplemental indenture, in
conformity with the provisions of this Indenture;
(B) that the supplemental indenture, if any, when executed and
delivered by the Company, the Guarantor and the Trustee, will
constitute a valid and legally binding obligation of each of the
Company and the Guarantor;
(C) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, and will be entitled to the benefits of
this Indenture;
(D) that the Company has the corporate power to issue the
Securities, and has duly taken all necessary action with respect to
such issuance;
(E) that the Guarantor has the corporate power to guarantee the
Securities, and has duly taken all necessary action with respect to
such guarantee;
(F) that the issuance of the Securities will not contravene the
certificate of incorporation or By-laws of the Company or the
Guarantor or result in any violation of any of the terms or provisions
of any law or regulation or of any indenture, mortgage or other
agreement by which the Company or the Guarantor is bound and, with
respect to the Guarantor, under which long-term debt of the Guarantor
as reflected in its latest financial statements on file with the SEC
is outstanding;
(G) that all requirements of the Indenture applicable to the
Company in respect of the execution and delivery by the Company of the
Securities and applicable to the Guarantor in respect of the Guarantee
and of such supplemental indenture, if any, have been complied with
and, that assuming (a) all requisite corporate authorization on the
part of the Trustee, (b) continued compliance by the Trustee with the
terms of the Indenture specifically applicable to the Trustee, and (c)
due authentication and delivery of the Securities by the Trustee, the
execution and delivery of such supplemental indenture, if any, will
not violate the terms of this Indenture, and that, other than
compliance with federal and state securities laws, no authorization,
approval or consent by any regulatory or statutory or other public
authority is required in connection with the execution and delivery of
such supplemental indenture or for the creation, issuance,
authentication and delivery of the Securities pursuant to the
Indenture;
(H) all conditions precedent provided for in the Indenture
(including any covenants compliance with which constitutes a condition
precedent) to the
19
Trustee's authentication and delivery of the Securities have been
complied with; and
(I) the amount of Securities Outstanding of such series, together
with the amount of such Securities, does not exceed any limit
established under the terms of this Indenture on the amount of
Securities of such series that may be authenticated and delivered.
(d) The Trustee shall have the right to decline to authenticate and deliver
the Securities under this Section if the issue of the Securities pursuant to
this Indenture will affect the Trustee's own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
(e) Each Security shall be dated the date of its authentication, except as
otherwise provided pursuant to Section 301 with respect to the Securities of
such series.
(f) Notwithstanding the provisions of Section 301 and of this Section 303,
if all of the Securities of any series are not to be originally issued at the
same time, then the documents required to be delivered pursuant to this Section
303 must be delivered only once, prior to the authentication and delivery of the
first Security of such series; provided, however, that any subsequent request by
the Company to the Trustee to authenticate Securities of such series upon
original issuance shall constitute a representation and warranty by the Company
and the Guarantor that, as of the date of such request, the statements made in
any Officers' Certificate delivered pursuant to this Section 303 shall be true
and correct as if made on such date.
(g) If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall
authenticate and deliver one or more Global Securities that (i) shall represent
an aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by such Global Securities, (ii)
shall be registered, if in registered form, in the name of the Depositary for
such Global Security or Securities or the nominee of such Depositary, (iii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for the
individual Securities represented hereby, this Global 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." The aggregate principal amount of each
Global Security may from time to time be increased or decreased by adjustments
made on the records of the Security Custodian, as provided in this Indenture.
(h) Each Depositary designated pursuant to Section 301 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as such Depositary, be a clearing agency registered under
the Exchange Act and any other applicable statute or regulation.
20
(i) Members of, or participants in, the Depositary ("Members") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depositary or by the Security Custodian under such Global
Security, and the Depositary may be treated by the Company, the Guarantor, the
Trustee, the Paying Agent and the Registrar and any of their agents as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Guarantor, the Trustee, the Paying Agent or the Registrar or any of their agents
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its
Members, the operation of customary practices of the Depositary governing the
exercise of the rights of an owner of a beneficial interest in any Global
Security. The registered holder of a Global Security may grant proxies and
otherwise authorize any Person, including Members and Persons that may hold
interests through Members, to take any action that a holder is entitled to take
under this Indenture or the Securities.
(j) No Security or Coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication substantially in
one of the forms provided for herein duly executed by the Trustee or by an
Authenticating Agent by manual signature of one of its Responsible Officers, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security (and any Coupons appertaining thereto) has been
duly authenticated and delivered hereunder and is entitled to the benefits of
this Indenture. Except as permitted by Section 305, 307 or 308, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
Coupons then matured have been cleared and canceled.
Section 304. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities that are printed, lithographed, typewritten,
mimeographed or otherwise reproduced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more Coupons or without Coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities and Coupons, if any, may determine, as conclusively evidenced by
their execution of such Securities and Coupons. Any such temporary Security may
be in global form, representing all or a portion of the Outstanding Securities
of such series. Every such temporary Security shall be executed by the Company
and shall be authenticated and delivered by the Trustee upon the same conditions
and in substantially the same manner, and with the same effect, as the
definitive Security or Securities in lieu of which it is issued.
(b) If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. Except as otherwise specified as contemplated by Section 301(q)(iii) with
respect to a series of Securities issuable as Bearer Securities or as one or
more Global Securities representing individual Bearer Securities of the series,
(a) 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 such temporary Securities at the office or agency
of the Company in a Place of
21
Payment for such series, without charge to the holder, except as provided in
Section 306 and except that a Person receiving definitive Bearer Securities
shall bear the cost of insurance, postage, transportation and the like unless
otherwise specified pursuant to Section 301, and (b) upon surrender for
cancellation of any one or more temporary Securities of any series (accompanied
by any unmatured Coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor; provided, however, that no definitive Bearer Security shall
be delivered in exchange for a temporary Registered Security; and provided,
further, that delivery of a Global Security representing individual Bearer
Securities or a Bearer Security shall occur only outside the United States.
Until so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series, except as otherwise specified as contemplated by Section
301(q)(ii) with respect to the payment of interest on Global Securities in
temporary form.
(c) Unless otherwise specified pursuant to Section 301, the Company will
execute and deliver each definitive Global Security representing individual
Bearer Securities and each Bearer Security to the Trustee at its principal
office in London or such other place outside the United States specified
pursuant to Section 301.
(d) Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Securities represented thereby
pursuant to this Section 304 or Section 306, the temporary Global Security shall
be endorsed by the Trustee to reflect the reduction of the principal amount
evidenced thereby, whereupon the principal amount of such temporary Global
Security shall be reduced for all purposes by the amount so exchanged and
endorsed.
Section 305. Registrar and Paying Agent.
(a) The Company will keep, at an office or agency to be maintained by it in
the Borough of Manhattan, the City of New York, or in any other office or agency
of the Company in a Place of Payment, where Registered Securities may be
presented for registration or presented and surrendered for registration of
transfer or of exchange (the "Registrar"), a security register for the
registration and the registration of transfer or of exchange of the Registered
Securities (the registers maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Register"), as in this Indenture provided, which Register
shall at all reasonable times be open for inspection by the Trustee. Such
Register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. The Company may have one
or more co-Registrars; the term "Registrar" includes any co-registrar.
(b) The Company shall enter into an appropriate agency agreement with any
Registrar or co-Registrar not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such agent. The
Company shall notify the Trustee of the name and address of each such agent. If
the Company fails to maintain a Registrar, the Trustee shall act as such and
shall be entitled to appropriate compensation therefor pursuant to
22
Section 1101. The Company, the Guarantor, or any Affiliate of the Company or the
Guarantor may act as Registrar, co-Registrar or transfer agent.
(c) The Company hereby appoints the Trustee at its Corporate Trust Office
as Registrar in connection with the Securities and this Indenture, until such
time as another Person is appointed as such.
Section 306. Transfer and Exchange.
(a) Transfer.
(i) Upon surrender for registration of transfer of any Registered
Security of any series at the Registrar the Company shall execute, and the
Trustee or any Authenticating Agent shall authenticate and deliver, in the
name of the designated transferee, one or more new Registered Securities of
the same series for like aggregate principal amount of any authorized
denomination or denominations. The transfer of any Security shall not be
valid as against the Company, the Guarantor or the Trustee unless
registered at the Registrar by the registered holder, or by his or her
attorney duly authorized in writing. Except as otherwise specified pursuant
to Section 301, in no event may Registered Securities, including Registered
Securities received in exchange for Bearer Securities, be exchanged for
Bearer Securities.
(ii) Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for the individual Securities
represented thereby, a 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.
(b) Exchange.
(i) At the option of the holder, Registered Securities of any series
(other than a Global Security, except as set forth below) may be exchanged
for other Registered Securities of the same series for like aggregate
principal amount of any authorized denomination or denominations, upon
surrender of the Registered Securities to be exchanged at the Registrar.
(ii) At the option of the holder, except as otherwise specified as
contemplated by Section 301(o) or 301(q) with respect to a Global Security
representing Bearer Securities, Bearer Securities of any series may be
exchanged for Registered Securities (if the Securities of such series are
issuable as Registered Securities) or Bearer Securities of the same series,
for like aggregate principal amount of any authorized denomination or
denominations, upon surrender of the Bearer Securities to be exchanged at
the office or agency of the Company maintained for such purpose, with all
unmatured Coupons and all matured Coupons in Default thereto appertaining;
provided, however, that delivery of a Bearer Security shall occur only
outside the United States. If the holder of a Bearer Security is unable to
produce any such unmatured Coupon or Coupons or matured
23
Coupon or Coupons in Default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing
Coupon or Coupons, or the surrender of such missing Coupon or Coupons may
be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the holder of such Bearer Security
shall surrender to any Paying Agent any such missing Coupon in respect of
which such a payment shall have been made, such holder shall be entitled to
receive the amount of such payment; provided, however, that, except as
otherwise provided in Section 308, interest represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an office
or agency located outside the United States.
(iii) Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities that the holder making the exchange is entitled to receive.
(iv) Notwithstanding the foregoing, the exchange of Bearer Securities
for Registered Securities will be subject to the provisions of United
States income tax laws and regulations applicable to Securities in effect
at the time of such exchange.
(c) Exchange of Global Securities for Individual Securities. Except as
provided below, owners of beneficial interests in Global Securities will not be
entitled to receive individual Securities.
(i) Individual Securities shall be issued to all owners of beneficial
interests in a Global Security in exchange for such interests if:
(A) at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as
Depositary for the Securities of such series or if at any time the
Depositary for the Securities of such series shall no longer be
eligible under Section 303(h) and, in each case, a successor
Depositary is not appointed by the Company within 90 days of such
notice, or
(B) the Company executes and delivers to the Trustee and the
Registrar an Officers' Certificate stating that such Global Security
shall be so exchangeable.
In connection with the exchange of an entire Global Security for individual
Securities pursuant to this subsection (c), such Global Security shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of individual Securities of such series, will authenticate and
deliver to each beneficial owner identified by the Depositary in exchange for
its beneficial interest in such Global Security, an equal aggregate principal
amount of individual Securities of authorized denominations.
(ii) The owner of a beneficial interest in a Global Security will be
entitled to receive an individual Security in exchange for such interest if
an Event of Default has occurred and is continuing. Upon receipt by the
Security Custodian and Registrar of instructions from the holder of a
Global Security directing the Security Custodian and
24
Registrar to (x) issue one or more individual Securities in the amounts
specified to the owner of a beneficial interest in such Global Security and
(y) debit or cause to be debited an equivalent amount of beneficial
interest in such Global Security, subject to the rules and regulations of
the Depositary:
(A) the Security Custodian and Registrar shall notify the Company
and the Trustee of such instructions, identifying the owner and amount
of such beneficial interest in such Global Security;
(B) the Company shall promptly execute and the Trustee, upon
receipt of a Company Order for the authentication and delivery of
individual Securities of such series, shall authenticate and deliver
to such beneficial owner individual Securities in an equivalent amount
to such beneficial interest in such Global Security; and
(C) the Security Custodian and Registrar shall decrease such
Global Security by such amount in accordance with the foregoing.
In the event that the individual Securities are not issued to each such
beneficial owner promptly after the Registrar has received a request from the
holder of a Global Security to issue such individual Securities, the Company
expressly acknowledges, with respect to the right of any holder to pursue a
remedy pursuant to Section 707 hereof, the right of any beneficial holder of
Securities to pursue such remedy with respect to the portion of the Global
Security that represents such beneficial holder's Securities as if such
individual Securities had been issued.
(iii) If specified by the Company pursuant to Section 301 with respect
to a series of Securities, the Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange in
whole or in part for individual Securities of such series on such terms as
are acceptable to the Company and such Depositary. Thereupon, the Company
shall execute, and the Trustee shall authenticate and deliver, without
service charge,
(A) to each Person specified by such Depositary a new individual
Security or Securities of the same series, of any authorized
denomination as requested by such Person in aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
Global Security; and
(B) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
individual Securities delivered to holders thereof.
(iv) In any exchange provided for in clauses (i) through (iii), the
Company will execute and the Trustee will authenticate and deliver
individual Securities (a) in registered form in authorized denominations,
if the Securities of such series are issuable as Registered Securities, (b)
in bearer form in authorized denominations, with or without Coupons
attached, if the Securities of such series are issuable as Bearer
Securities or (c) as either Registered or Bearer Securities, if the
Securities of such series are issuable in
25
either form; provided, however, that individual Bearer Securities shall be
delivered in exchange for a Global Security only in accordance with the
procedures specified pursuant to Section 301.
(v) Upon the exchange in full of a Global Security for individual
Securities, such Global Security shall be canceled by the Trustee.
Individual Registered Securities issued in exchange for a Global Security
pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such
Registered Securities to the Persons in whose names such Registered
Securities are so registered. The Trustee shall deliver individual Bearer
Securities issued in exchange for a Global Security pursuant to this
Section to the Persons and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee;
provided, however, that individual Bearer Securities shall be delivered in
exchange for a Global Security only in accordance with the procedures as
may be specified pursuant to Section 301.
(d) Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Securities in effect at the time of such
exchange.
(e) All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company (and, as with respect to
the Guarantee, the Guarantor) evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered for such
registration of transfer or exchange.
(f) Every Registered Security presented or surrendered for registration of
transfer, or for exchange or payment shall (if so required by the Company, the
Trustee or the Registrar) be duly endorsed, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company, the
Trustee and the Registrar, duly executed by the holder thereof or by his or her
attorney duly authorized in writing.
(g) No service charge will be made for any registration of transfer or
exchange of Securities except as provided in Section 304(b) or 307. The Company
may require payment of a sum sufficient to cover any tax, assessment or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than those expressly provided in this
Indenture to be made at the Company's own expense or without expense or charge
to the holders.
(h) The Company shall not be required to (i) register, transfer or exchange
Securities of any series during a period beginning at the opening of business 15
days before the day of the transmission of a notice of redemption of Securities
of such series selected for redemption under Section 403 and ending at the close
of business on the day of such transmission, or (ii) register, transfer or
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part; provided, however,
that, if specified pursuant to Section 402, any Bearer Securities of any series
that are exchangeable for Registered
26
Securities and that are called for redemption pursuant to Section 402 may, to
the extent permitted by applicable law, be exchanged for one or more Registered
Securities of such series during the period preceding the Redemption Date.
(i) Prior to the due presentation for registration of transfer or exchange
of any Security, the Company, the Guarantor, the Trustee, the Paying Agent, the
Registrar or any co-Registrar may deem and treat the Person in whose name a
Security is registered as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for all purposes whatsoever, and none of the Company, the
Guarantor, the Trustee, the Paying Agent, the Registrar or any co-Registrar
shall be affected by any notice to the contrary.
(j) In case a successor Company ("Successor Company") has executed an
indenture supplemental hereto with the Trustee pursuant to Article Fourteen, any
of the Securities authenticated or delivered pursuant to such transaction may,
from time to time, at the request of the Successor Company, be exchanged for
other Securities executed in the name of the Successor Company with such changes
in phraseology and form as may be appropriate, but otherwise identical to the
Securities surrendered for such exchange and of like principal amount; and the
Trustee, upon Company Order of the Successor Company, shall authenticate and
deliver Securities as specified in such order for the purpose of such exchange.
If Securities shall at any time be authenticated and delivered in any new name
of a Successor Company pursuant to this Section 306 in exchange or substitution
for or upon registration of transfer of any Securities, such Successor Company,
at the option of the holders but without expense to them, shall provide for the
exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
(k) Each holder of a Security agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such holder's Security in violation of any provision of this
Indenture and/or applicable United States federal or state securities laws.
(l) The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
(m) Neither the Trustee nor any agent of the Trustee shall have any
responsibility for any actions taken or not taken by the Depositary.
Section 307. Mutilated, Destroyed, Lost and Stolen Securities.
(a) If (i) any mutilated Security or any mutilated Coupon with the Coupon
Security to which it appertains (and all unmatured Coupons attached thereto) is
surrendered to the Trustee at its Corporate Trust Office (in the case of
Registered Securities) or at its principal London office (in the case of Bearer
Securities) or (ii) the Company and the Trustee receive evidence to their
27
satisfaction of the destruction, loss or theft of any Security or any Coupon,
and there is delivered to the Company and the Trustee security or indemnity
satisfactory to them to save each of them and any Paying Agent harmless, and
neither the Company nor the Trustee receives notice that such Security or Coupon
has been acquired by a protected purchaser, then the Company shall execute and
upon Company Request the Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Security or in
exchange for the Coupon Security to which such mutilated, destroyed, lost or
stolen Coupon appertains, a new Security of the same series and of like tenor,
form, terms and principal amount, bearing a number not contemporaneously
Outstanding, and, in the case of a Coupon Security, with such Coupons attached
thereto that neither gain nor loss in interest shall result from such exchange
or substitution.
(b) In case any such mutilated, destroyed, lost or stolen Security or
Coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay the amount due on such
Security or Coupon in accordance with its terms; provided, however, that payment
of principal and premium, if any, and any interest on Bearer Securities or
payment of Coupons shall, except as otherwise provided in Section 308, be
payable only at an office or agency located outside the United States.
(c) Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
(d) Every new Security of any series, with its Coupons, if any, issued
pursuant to this Section shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities of that series and their Coupons, if any, duly issued
hereunder.
(e) The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons.
Section 308. Payment of Interest; Interest Rights Preserved.
(a) Interest on any Registered Security that is payable and is punctually
paid or duly provided for on any Interest Payment Date shall be paid to the
Person in whose name such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Record Date for such
interest notwithstanding the cancellation of such Registered Security upon any
transfer or exchange subsequent to the Record Date. In case a Coupon Security of
any series is surrendered in exchange for a Registered Security of such series
after the close of business (at an office or agency in a Place of Payment for
such series) on any Record Date and before the opening of business (at such
office or agency) on the next succeeding Interest Payment Date, such Coupon
Security shall be surrendered without the Coupon relating to such Interest
Payment Date and interest will not be payable on such Interest Payment Date in
respect of the Registered Security issued in exchange for such Coupon Security,
but will be payable only
28
to the bearer of such Coupon when due in accordance with the provisions of this
Indenture. Payment of interest on Registered Securities shall be made at the
Corporate Trust Office (except as otherwise specified pursuant to Section 301)
or, at the option of the Company, by check mailed to the address of the Person
entitled thereto as such address shall appear in the Register or, if provided
pursuant to Section 301 and in accordance with arrangements satisfactory to the
Trustee, at the option of the Registered Holder by wire transfer to an account
designated by the Registered Holder.
(b) Interest on any Coupon Security that is payable and is punctually paid
or duly provided for on any Interest Payment Date shall be paid to the holder of
the Coupon that has matured on such Interest Payment Date upon surrender of such
Coupon on such Interest Payment Date at the principal London office of the
Trustee or at such other Place of Payment outside the United States specified
pursuant to Section 301.
(c) Interest on any Bearer Security (other than a Coupon Security) that is
payable and is punctually paid or duly provided for on any Interest Payment Date
shall be paid to the holder of the Bearer Security upon presentation of such
Bearer Security and notation thereon on such Interest Payment Date at the
principal London office of the Trustee or at such other Place of Payment outside
the United States specified pursuant to Section 301.
(d) Unless otherwise specified pursuant to Section 301, at the direction of
the holder of any Bearer Security or Coupon payable in U.S. Dollars, and subject
to applicable laws and regulations, payments in respect of such Bearer Security
or Coupon will be made by check drawn on a bank in the City of New York or, in
accordance with arrangements satisfactory to the Trustee, by wire transfer to a
U.S. Dollars account maintained by such holder with a bank outside the United
States. If such payment at the offices of all Paying Agents outside the United
States becomes illegal or is effectively precluded because of the imposition of
exchange controls or similar restrictions on the full payment or receipt of such
amounts in U.S. Dollars, the Company will appoint an office or agent in the
United States at which such payment may be made. Unless otherwise specified
pursuant to Section 301, at the direction of the holder of any Bearer Security
or Coupon payable in a Foreign Currency, payment on such Bearer Security or
Coupon will be made by a check drawn on a bank outside the United States or, in
accordance with arrangements satisfactory to the Trustee, by wire transfer to an
appropriate account maintained by such holder outside the United States. Except
as provided in this paragraph, no payment on any Bearer Security or Coupon will
be made by mail to an address in the United States or by transfer to an account
maintained by the bearer thereof in the United States.
(e) Any interest on any Security that is payable but is not punctually paid
or duly provided for on any Interest Payment Date (herein called "Defaulted
Interest") shall, if such Security is a Registered Security, forthwith cease to
be payable to the Registered Holder on the relevant Record Date by virtue of his
or her having been such a Registered Holder, and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in clause (i) or
(ii) below:
(i) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on a
special record date for the payment
29
of such Defaulted Interest (a "Special Record Date"), which shall be fixed
in the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each such
Registered Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 calendar days and not less than 10 calendar
days prior to the date of the proposed payment and not less than 10
calendar days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to the holders of such Registered Securities at their addresses as they
appear in the Register, not less than 10 calendar days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (B).
In case a Coupon Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at the
office or agency in a Place of Payment for such series) on any Special
Record Date and before the opening of business (at such office or agency)
on the related proposed date of payment of Defaulted Interest, such Coupon
Security shall be surrendered without the Coupon relating to such proposed
date of payment and Defaulted Interest will not be payable on such proposed
date of payment in respect of the Registered Security issued in exchange
for such Coupon Security, but will be payable only to the holder of such
Coupon when due in accordance with the provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest on
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered Securities
may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
(f) Any Defaulted Interest payable in respect of Bearer Securities of any
series shall be payable pursuant to such procedures as may be satisfactory to
the Trustee in such manner that there is no discrimination between the holders
of Registered Securities (if any) and Bearer Securities of such series, and
notice of the payment date therefor shall be given by the Trustee, in the name
and at the expense of the Company, in the manner provided in Section 1708, not
more than 25 days and not less than 20 days prior to the date of the proposed
payment.
30
(g) Subject to the provisions set forth herein relating to Record Dates,
each Security delivered pursuant to any provision of this Indenture in exchange
or substitution for, or upon registration of transfer of, any other Security
shall carry all the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Security.
Section 309. Cancellation. Unless otherwise specified pursuant to Section 301
for Securities of any series, all Securities surrendered for payment,
redemption, registration of transfer or exchange or credit against any sinking
fund or otherwise and all Coupons surrendered for payment or exchange shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
for cancellation and shall be promptly canceled by it and, if surrendered to the
Trustee, shall be promptly canceled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities or Coupons previously
authenticated and delivered hereunder that the Company may have acquired in any
manner whatsoever, and all Securities or Coupons so delivered shall be promptly
canceled by the Trustee. No Securities or Coupons shall be authenticated in lieu
of or in exchange for any Securities or Coupons canceled as provided in this
Section, except as expressly permitted by this Indenture. The Trustee shall
dispose of all canceled Securities and Coupons held by it in accordance with its
then customary procedures and deliver a certificate of such disposal to the
Company. The acquisition of any Securities or Coupons by the Company shall not
operate as a redemption or satisfaction of the indebtedness represented thereby
unless and until such Securities or Coupons are surrendered to the Trustee for
cancellation.
Section 310. Computation of Interest. Except as otherwise specified pursuant to
Section 301 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 311. Currency of Payments in Respect of Securities.
(a) Except as otherwise specified pursuant to Section 301 for Bearer
Securities of any series, payment of the principal of and premium, if any, and
interest on Bearer Securities of such series denominated in any Currency will be
made in such Currency.
(b) Except as otherwise specified pursuant to Section 301 for Registered
Securities of any series, payment of the principal of and premium, if any, and
interest on Registered Securities of such series will be made in U.S. Dollars.
(c) For purposes of any provision of the Indenture where the holders of
Outstanding Securities may perform an action that requires that a specified
percentage of the Outstanding Securities of all series perform such action and
for purposes of any decision or determination by the Trustee of amounts due and
unpaid for the principal of and premium, if any, and interest on the Securities
of all series in respect of which moneys are to be disbursed ratably, the
principal of and premium, if any, and interest on the Outstanding Securities
denominated in a Foreign Currency will be the amount in U.S. Dollars based upon
exchange rates, determined as specified pursuant to Section 301 for Securities
of such series, as of the date for determining whether the holders entitled to
perform such action have performed it or as of the date of such decision or
determination by the Trustee, as the case may be.
31
(d) Any decision or determination to be made regarding exchange rates shall
be made by an agent appointed by the Company; provided, that such agent shall
accept such appointment in writing and the terms of such appointment shall, in
the opinion of the Company at the time of such appointment, require such agent
to make such determination by a method consistent with the method provided
pursuant to Section 301 for the making of such decision or determination. All
decisions and determinations of such agent regarding exchange rates 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, the Guarantor, the
Trustee and all holders of the Securities.
Section 312. Judgments. The Company and the Guarantor may provide pursuant to
Section 301 for Securities of any series that (a) the obligation, if any, of the
Company or the Guarantor, as applicable, to pay the principal of, premium, if
any, and interest on the Securities of any series in a Foreign Currency or U.S.
Dollars (the "Designated Currency") as may be specified pursuant to Section 301
is of the essence and agrees that, to the fullest extent possible under
applicable law, judgments in respect of such Securities shall be given in the
Designated Currency; (b) the obligation of the Company or the Guarantor, as
applicable, to make payments in the Designated Currency of the principal of and
premium, if any, and interest on such Securities shall, notwithstanding any
payment in any other Currency (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in the Designated Currency that the
holder receiving such payment may, in accordance with normal banking procedures,
purchase with the sum paid in such other Currency (after any premium and cost of
exchange) on the business day in the country of issue of the Designated Currency
or in the international banking community (in the case of a composite currency)
immediately following the day on which such holder receives such payment; (c) if
the amount in the Designated Currency that may be so purchased for any reason
falls short of the amount originally due, the Company or the Guarantor, as
applicable, shall pay such additional amounts as may be necessary to compensate
for such shortfall; and (d) any obligation of the Company or the Guarantor, as
applicable, not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
Section 313. CUSIP Numbers. The Company in issuing any Securities may use CUSIP
numbers, if then generally in use, and thereafter with respect to such series,
the Trustee may use such numbers in any notice of redemption or exchange with
respect to such series provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee in
writing of any change in the CUSIP numbers.
ARTICLE FOUR
REDEMPTION OF SECURITIES
Section 401. Applicability of Right of Redemption. Redemption of Securities
(other than pursuant to a sinking fund or analogous provision) permitted by the
terms of any series of Securities shall be made in accordance with such terms
(except as otherwise specified pursuant
32
to Section 301 for Securities of any series) in accordance with this Article;
provided, however, that if any such terms of a series of Securities shall
conflict with any provision of this Article, the terms of such series shall
govern.
Section 402. Tax Redemption; Special Tax Redemption.
(a) Unless otherwise specified pursuant to Section 301, Bearer Securities
of any series may be redeemed at the option of the Company in whole, but not in
part, at any time, at the Redemption Price thereof (calculated without premium),
if the Company has or will become obligated to pay additional interest on such
Bearer Securities pursuant to Section 602 as a result of any change in, or
amendment to, the laws (or any regulation or ruling promulgated thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, or any change in the application or official interpretation of such
laws, regulations or rulings, which change or amendment becomes effective on or
after the date on which any Person (including any Person acting as underwriter,
broker or dealer) agrees to purchase any of such Bearer Securities pursuant to
their original issuance, and such obligation cannot be avoided by the Company
taking reasonable measures available to it. If the Company elects to redeem
Bearer Securities pursuant to this Section 402, it shall notify the Trustee and
the holders of such Bearer Securities in accordance with Sections 403 and 404;
provided that no such notice of redemption shall be given earlier than 90 days
prior to the earliest date on which the Company would be obligated to pay such
additional interest were a payment in respect of the Bearer Securities of that
series then due. Prior to the publication of any notice of redemption pursuant
to this Section 402(a), the Company shall deliver to the Trustee (i) an
Officers' Certificate stating that the Company is entitled to effect such
redemption and setting forth a statement of facts showing that the conditions
precedent to the right of the Company so to redeem have occurred and (ii) an
Opinion of Counsel to the effect that the Company has or will become obligated
to pay such additional interest as a result of such change or amendment.
(b) Unless otherwise specified pursuant to Section 301, if the Company
shall determine that any payment made outside the United States by the Company
or any of its Paying Agents in respect of any Bearer Security or Coupon, if any,
that is not a Floating Rate Security (an "Affected Security") would, under any
present or future laws or regulations in the United States, be subject to any
certification, documentation, information or other reporting requirement of any
kind, the effect of which requirement is the disclosure to the Company, any
Paying Agent or any governmental authority of the nationality, residence or
identity of a beneficial owner of such Affected Security that is a United States
Alien (other than such a requirement (i) that would not be applicable to a
payment made by the Company or any one of its Paying Agents (A) directly to the
beneficial owner or (B) to a custodian, nominee or other agent of the beneficial
owner, or (ii) that can be satisfied by such custodian, nominee or other agent
certifying to the effect that the beneficial owner is a United States Alien;
provided that, in any case referred to in clause (i)(B) or (ii), payment by the
custodian, nominee or agent to the beneficial owner is not otherwise subject to
any such requirement), then the Company shall elect either (x) to redeem such
Affected Securities in whole, but not in part, at the Redemption Price thereof
(calculated without premium) or (y) if the conditions of the next succeeding
paragraph are satisfied, to pay the additional interest specified in such
paragraph. The Company shall make such determination as soon as practicable and
publish prompt notice thereof (the "Determination Notice"), stating the
effective date of such certification, documentation, information or other
reporting
33
requirement, whether the Company elects to redeem the Affected Securities or to
pay the additional interest specified in the next succeeding paragraph and (if
applicable) the last date by which the redemption of the Affected Securities
must take place, as provided in the next succeeding sentence. If any Affected
Securities are to be redeemed pursuant to this paragraph, the redemption shall
take place on such date, not later than one year after the publication of the
Determination Notice, as the Company shall specify by notice given to the
Trustee and the holders of the Affected Securities in accordance with Sections
403 and 404. Notwithstanding the foregoing, the Company shall not so redeem the
Affected Securities if the Company shall subsequently determine, not less than
30 days prior to the Redemption Date, that subsequent payments on the Affected
Securities would not be subject to any such certification, documentation,
information or other reporting requirement, in which case the Company shall
publish prompt notice of such subsequent determination, and any earlier
redemption notice given pursuant to this paragraph shall be revoked and of no
further effect. Prior to the publication of any Determination Notice pursuant to
this paragraph, the Company shall deliver to the Trustee (i) an Officers'
Certificate stating that the Company is entitled to make such determination and
setting forth a statement of facts showing that the conditions precedent to the
obligation of the Company to redeem the Affected Securities or to pay the
additional interest specified in the next succeeding paragraph have occurred and
(ii) an Opinion of Counsel to the effect that such conditions have occurred.
(c) If and so long as the certification, documentation, information or
other reporting requirements referred to in the preceding paragraph would be
fully satisfied by payment of a backup withholding tax or similar charge, the
Company may elect to pay as additional interest such amounts as may be necessary
so that every net payment made outside the United States following the effective
date of such requirement by the Company or any of its Paying Agents in respect
of any Affected Security of which the beneficial owner is a United States Alien
(but without any requirement that the nationality, residence or identity of such
beneficial owner be disclosed to the Company, any Paying Agent or any
governmental authority), after deduction or withholding for or on account of
such backup withholding tax or similar charge (other than a backup withholding
tax or similar charge that (i) would not be applicable in the circumstances
referred to in the parenthetical clause of the first sentence of the preceding
paragraph or (ii) is imposed as a result of presentation of any such Affected
Security for payment more than 15 days after the date on which such payment
became due and payable or on which payment thereof was duly provided for,
whichever occurred later), will not be less than the amount provided in any such
Affected Security to be then due and payable. If the Company elects to pay
additional interest pursuant to this paragraph, then the Company shall have the
right, but shall not be required, to redeem the Affected Securities at any time
in whole, but not in part, at the Redemption Price thereof (calculated without
premium), subject to the provisions of the last three sentences of the
immediately preceding paragraph. If the Company elects to pay additional
interest pursuant to this paragraph and the condition specified in the first
sentence of this paragraph should no longer be satisfied, then the Company shall
redeem the Affected Securities in whole, but not in part, at the Redemption
Price thereof (calculated without premium), subject to the provisions of the
last three sentences of the immediately preceding paragraph. Any redemption
payments made by the Company pursuant to the two immediately preceding sentences
shall be subject to the continuing obligation of the Company to pay additional
interest pursuant to this paragraph. If the Company elects to, or is required
to, redeem the Affected
34
Securities pursuant to this paragraph, it shall notify the Trustee and the
holders of the Affected Securities thereof in accordance with Sections 403 and
404.
Section 403. Selection of Securities to be Redeemed.
(a) If the Company shall at any time elect to redeem all or any portion of
the Securities of a series then Outstanding, it shall at least 45 days prior to
the Redemption Date fixed by the Company (unless a shorter period shall be
satisfactory to the Trustee) notify the Trustee of such Redemption Date and of
the principal amount of Securities to be redeemed, and thereupon the Trustee
shall select, in such manner as the Trustee shall deem appropriate and fair, the
Securities (or portions thereof) of such series to be redeemed. Unless otherwise
provided in the Officers' Certificate or supplemental indenture provided for in
Section 301, no Security of a denomination of $1,000 shall be redeemed in part
and Securities may be redeemed in part only in integral multiples of $1,000. In
any case where more than one Registered Security of such series is registered in
the same name, the Trustee in its discretion may treat the aggregate principal
amount so registered as if it were represented by one Registered Security of
such series. The Trustee shall, as soon as practicable, notify the Company in
writing of the Securities and portions of Securities so selected.
(b) 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 that has been or is to be
redeemed.
Section 404. Notice of Redemption.
(a) The election of the Company to redeem any Securities of any series
shall be evidenced by a Board Resolution. Notice of redemption shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company, not less than 30 nor more than 60 days prior to the
Redemption Date, to the holders of Securities of any series to be redeemed in
whole or in part pursuant to this Article, in the manner provided in Section
1708. Any notice so given shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice. Failure to give such
notice, or any defect in such notice to the holder of any Security of a series
designated for redemption, in whole or in part, shall not affect the sufficiency
of any notice of redemption with respect to the holder of any other Security of
such series.
(b) All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and shall state:
(i) such election by the Company to redeem Securities of such series
pursuant to provisions contained in this Indenture or the terms of the
Securities of such series or a supplemental indenture establishing such
series, if such be the case;
(ii) the Redemption Date;
(iii) the Redemption Price;
35
(iv) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed, and that interest
thereon, if any, shall cease to accrue on and after said date;
(vi) that, unless otherwise specified in such notice, Coupon
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption, failing which the amount of any such missing Coupon or Coupons
will be deducted from the Redemption Price;
(vii) the Place or Places of Payment where such Securities are to be
surrendered for payment of the Redemption Price, and that the Securities
designated in such notice for redemption are required to be presented on or
after such Redemption Date at the designated Place of Payment;
(viii) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 306(c) or otherwise,
the last date on which such exchanges may be made;
(ix) that the redemption is for a sinking fund, if such is the case;
and
(x) if any Security of any series is to be redeemed in part, that on
and after the Redemption Date, upon surrender of such Security and any
Coupons appertaining thereto, such Security and any Coupons appertaining
thereto will be canceled and a new Security or Securities of such series in
aggregate principal amount equal to the unredeemed portion thereof and with
appropriate Coupons will be issued and delivered without charge to the
holder or, in the case of Securities providing appropriate space for such
notation, at the option of the holders, the Trustee, in lieu of delivering
a new Security or Securities as aforesaid, may make a notation on such
Security of the payment of the redeemed portion thereof.
Section 405. Deposit of Redemption Price. On or prior to 10 a.m., New York City
time, on the Redemption Date for any Registered Securities, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 604) an
amount of money in the Currency in which such Securities are denominated (except
as provided pursuant to Section 301) sufficient to pay the Redemption Price of
such Securities or any portions thereof that are to be redeemed on that date. In
the case of any redemption pertaining to Bearer or Coupon Securities, the
Company shall, no later than the Business Day prior to such Redemption Date,
deposit with the Trustee or with a Paying Agent (other than the Company) an
amount of money in the Currency in which such Securities are denominated (except
as provided pursuant to Section 301) sufficient to pay the
36
Redemption Price of such Securities or any portion thereof that are to be
redeemed on the Redemption Date.
Section 406. Securities Payable on Redemption Date. Notice of redemption having
been given as aforesaid, any Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price and from and
after such date (unless the Company shall Default in the payment of the
Redemption Price) such Securities shall cease to bear interest and any Coupons
for such interest appertaining to any such Securities to be redeemed, except to
the extent described below, shall be void. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by
the Company at the Redemption Price; provided, however, that installments of
interest that have a Stated Maturity on or prior to the Redemption Date for such
Securities shall be payable according to the terms of such Securities and the
provisions of Section 308.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
If any Coupon Security surrendered for redemption shall not be
accompanied by all Coupons appertaining thereto maturing on or after the
Redemption Date, the Redemption Price for such Coupon Security may be reduced by
an amount equal to the face amount of all such missing Coupons. If thereafter
the holder of such Coupon shall surrender to any Paying Agent outside the United
States any such missing Coupon in respect of which a deduction shall have been
made from the Redemption Price, such holder shall be entitled to receive the
amount so deducted. The surrender of such missing Coupon or Coupons may be
waived by the Company and the Trustee, if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless.
Section 407. Securities Redeemed in Part. Any Security that is to be redeemed
only in part shall be surrendered at the Corporate Trust Office or such other
office or agency of the Company as is specified pursuant to Section 301 (in the
case of Registered Securities) and at the principal London office of the Trustee
or such other office or agency of the Company outside the United States as is
specified pursuant to Section 301 (in the case of Bearer Securities) with, if
the Company, the Registrar or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company, the
Registrar and the Trustee duly executed by, the holder thereof or his attorney
duly authorized in writing, and the Company shall execute, and the Trustee shall
authenticate and deliver to the holder of such Security without service charge,
a new Security or Securities of the same series, of like tenor and form, of any
authorized denomination as requested by such holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered, and, in the case of a Coupon Security, with
appropriate Coupons attached; except that if a Global Security is so
surrendered, the Company shall execute, and the Trustee shall authenticate and
deliver to the Depositary for such Global Security, without service charge, a
new Global Security in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Global Security so surrendered. In
the case of a Security providing appropriate space for such notation, at the
option of the holder thereof, the Trustee, in lieu of delivering a new Security
or Securities
37
as aforesaid, may make a notation on such Security of the payment of the
redeemed portion thereof.
ARTICLE FIVE
SINKING FUNDS
Section 501. Applicability of Sinking Fund.
(a) Redemption of Securities permitted or required pursuant to a sinking
fund for the retirement of Securities of a series by the terms of such series of
Securities shall be made in accordance with such terms of such series of
Securities and this Article, except as otherwise specified pursuant to Section
301 for Securities of such series, provided, however, that if any such terms of
a series of Securities shall conflict with any provision of this Article, the
terms of such series shall govern.
(b) The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "Mandatory Sinking
Fund Payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "Optional
Sinking Fund Payment." If provided for by the terms of Securities of any series,
the cash amount of any Mandatory Sinking Fund Payment may be subject to
reduction as provided in Section 502.
Section 502. Mandatory Sinking Fund Obligation. The Company may, at its option,
satisfy any Mandatory Sinking Fund Payment obligation, in whole or in part, with
respect to a particular series of Securities by (1) delivering to the Trustee
Securities of such series in transferable form (together with the unmatured
Coupons, if any, appertaining thereto) theretofore purchased or otherwise
acquired by the Company or redeemed at the election of the Company pursuant to
Section 403 or (2) receiving credit for Securities of such series (together with
the unmatured Coupons, if any, appertaining thereto) (not previously so
credited) acquired by the Company and theretofore delivered to the Trustee. The
Trustee shall credit such Mandatory Sinking Fund Payment obligation with an
amount equal to the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such Mandatory Sinking
Fund Payment shall be reduced accordingly. If the Company shall elect to so
satisfy any Mandatory Sinking Fund Payment obligation, it shall deliver to the
Trustee not less than 45 days prior to the relevant sinking fund payment date a
written notice signed on behalf of the Company by its Chairman of the Board of
Directors, its President, one of its Vice Presidents, its Treasurer or one of
its Assistant Treasurers, which shall designate the Securities (and portions
thereof, if any) so delivered or credited and which shall be accompanied by such
Securities (together with the unmatured Coupons, if any, appertaining thereto)
(to the extent not theretofore delivered) in transferable form. In case of the
failure of the Company, at or before the time so required, to give such notice
and deliver such Securities the Mandatory Sinking Fund Payment obligation shall
be paid entirely in moneys.
Section 503. Optional Redemption at Sinking Fund Redemption Price. In addition
to the sinking fund requirements of Section 502, to the extent, if any, provided
for by the terms of a particular series of Securities, the Company may, at its
option, make an Optional Sinking Fund
38
Payment with respect to such Securities. Unless otherwise provided by such
terms, (a) to the extent that the right of the Company to make such Optional
Sinking Fund Payment shall not be exercised in any year, it shall not be
cumulative or carried forward to any subsequent year, and (b) such optional
payment shall operate to reduce the amount of any Mandatory Sinking Fund Payment
obligation as to Securities of the same series. If the Company intends to
exercise its right to make such optional payment in any year it shall deliver to
the Trustee not less than 45 days prior to the relevant sinking fund payment
date a certificate signed by its Chairman of the Board of Directors, its
President, one of its Vice President, its Treasurer or one of its Assistant
Treasurers stating that the Company will exercise such optional right, and
specifying the amount which the Company will pay on or before the next
succeeding sinking fund payment date. Such certificate shall also state that no
Event of Default has occurred and is continuing.
Section 504. Application of Sinking Fund Payment.
(a) If the sinking fund payment or payments made in funds pursuant to
either Section 502 or 503 with respect to a particular series of Securities plus
any unused balance of any preceding sinking fund payments made in funds with
respect to such series shall exceed $50,000 (or a lesser sum if the Company
shall so request, or such equivalent sum for Securities denominated other than
in U.S. Dollars), it shall be applied by the Trustee on the sinking fund payment
date next following the date of such payment, unless the date of such payment
shall be a sinking fund payment date, in which case such payment shall be
applied on such sinking fund payment date, to the redemption of Securities of
such series at the redemption price specified in Section 404(b). The Trustee
shall select, in the manner provided in Section 403, for redemption on such
sinking fund payment date, a sufficient principal amount of Securities of such
series to absorb said funds, as nearly as may be, and shall, at the expense and
in the name of the Company, thereupon cause notice of redemption of the
Securities to be given in substantially the manner provided in Section 404(a)
for the redemption of Securities in part at the option of the Company, except
that the notice of redemption shall also state that the Securities are being
redeemed for the sinking fund. Any sinking fund moneys not so applied by the
Trustee to the redemption of Securities of such series shall be added to the
next sinking fund payment received in funds by the Trustee and, together with
such payment, shall be applied in accordance with the provisions of this Section
504. Any and all sinking fund moneys held by the Trustee on the last sinking
fund payment date with respect to Securities of such series, and not held for
the payment or redemption of particular Securities of such series, shall be
applied by the Trustee to the payment of the principal of the Securities of such
series at maturity.
(b) On or prior to each sinking fund payment date, the Company shall pay to
the Trustee a sum equal to all interest accrued to the date fixed for redemption
on Securities to be redeemed on such sinking fund payment date pursuant to this
Section 504.
(c) The Trustee shall not redeem 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 any Securities of such series or of any Event of Default (other than
an Event of Default occurring as a consequence of this paragraph) of which the
Trustee has actual knowledge, except that if the notice of redemption of any
Securities of such series shall theretofore have been mailed in accordance with
the provisions hereof, the Trustee shall redeem such Securities if funds
sufficient for that purpose
39
shall be deposited with the Trustee in accordance with the terms of this
Article. Except as aforesaid, any moneys in the sinking fund at the time 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 held as security for the payment of all the Securities of such
series; provided, however, that in case such Default or Event of Default shall
have been cured or waived as provided herein, such moneys shall thereafter be
applied on the next sinking fund payment date on which such moneys are required
to be applied pursuant to the provisions of this Section 504.
ARTICLE SIX
PARTICULAR COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
Section 601. Payments of Securities. The Company will duly and punctually pay
the principal of and premium, if any, on each series of Securities, and the
interest which shall have accrued thereon, and pay any Coupons, at the dates and
place and in the manner provided in the Securities, the Coupons and in this
Indenture. Any interest due on Coupon Securities on or before Maturity, other
than additional interest, if any, payable as provided in Section 602 in respect
of principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature.
Section 602. Payment of Additional Interest. Unless otherwise provided pursuant
to Section 301, the provisions of this Section 602 shall be applicable to Bearer
Securities of any series.
(a) The Company will, subject to the exceptions and limitations set forth
below, pay as additional interest to the holder of any Bearer Security or Coupon
that is a United States Alien such amounts as may be necessary so that every net
payment on such Bearer Security or Coupon, after deduction or withholding for or
on account of any present or future tax, assessment or other governmental charge
imposed upon or as a result of such payment by the United States (or any
political subdivision or taxing authority thereof or therein), will not be less
than the amount provided in such Bearer Security or Coupon to be then due and
payable. However, the Company will not be required to make any such payment of
additional interest for or on account of:
(i) any tax, assessment or other governmental charge that would not
have been imposed but for (i) the existence of any present or former
connection between such holder (or between a fiduciary, settlor or
beneficiary of, or a person holding a power over, such holder, if such
holder is an estate or a trust, or a member or shareholder of such holder,
if such holder is a partnership or corporation) and the United States,
including, without limitation, such holder (or such fiduciary, settlor,
beneficiary, person holding a power, member or shareholder) being or having
been a citizen or resident thereof or being or having been engaged in trade
or business or present therein or having or having had a permanent
establishment therein or (ii) such holder's past or present status as a
personal holding company, foreign personal holding company or private
foundation or
40
other tax-exempt organization with respect to the United States or as a
corporation that accumulates earnings to avoid United States federal income
tax;
(ii) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge that would not
have been imposed but for the presentation by the holder of a Bearer
Security or Coupon for payment more than 15 days after the date on which
such payment became due and payable or on which payment thereof was duly
provided for, whichever occurs later;
(iv) any tax, assessment or other governmental charge that is payable
otherwise than by deduction or withholding from a payment on a Bearer
Security or Coupon;
(v) any tax, assessment or other governmental charge required to be
deducted or withheld by any Paying Agent from a payment on a Bearer
Security or Coupon, if such payment can be made without such deduction or
withholding by any other Paying Agent;
(vi) any tax, assessment or other governmental charge that would not
have been imposed but for a failure to comply with applicable
certification, documentation, information or other reporting requirement
concerning the nationality, residence, identity or connection with the
United States of the holder or beneficial owner of a Bearer Security or
Coupon if, without regard to any tax treaty, such compliance is required by
statute or regulation of the United States as a condition to relief or
exemption from such tax, assessment or other governmental charge; or
(vii) any tax, assessment or other governmental charge imposed on a
holder that actually or constructively owns 10 percent or more of the
combined voting power of all classes of stock of the Company or that is a
controlled foreign corporation related to the Company through stock
ownership;
nor shall additional interest be paid with respect to a payment on a Bearer
Security or Coupon to a holder that is a fiduciary or partnership or other than
the sole beneficial owner of such payment to the extent a beneficiary or settlor
with respect to such fiduciary or a member of such partnership or a beneficial
owner would not have been entitled to the additional interest had such
beneficiary, settlor, member or beneficial owner been the holder of such Bearer
Security or Coupon.
(b) Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or premium, if any, or interest on any Security or
payment with respect to any Coupon of any series, such mention shall be deemed
to include mention of the payment of additional interest provided for in the
terms of such Securities and this Section to the extent that, in such context,
additional interest is, was or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of additional
interest (if applicable) in any provisions hereof shall not be construed as
excluding additional interest in those provisions hereof where such express
mention is not made.
41
(c) If the payment of additional interest becomes required in respect of
the Securities of a series, at least ten days prior to the first Interest
Payment Date with respect to which such additional interest will be payable (or
if the Securities of that series will not bear interest prior to Maturity, the
first day on which a payment of principal and premium, if any, is made and on
which such additional interest will be payable), and at least ten days prior to
each date of payment of principal and premium, if any, or interest if there has
been any change with respect to the matters set forth in the below mentioned
Officers' Certificate, the Company will furnish the Trustee and each Paying
Agent with an Officers' Certificate that shall specify by country the amount, if
any, required to be withheld on such payments to holders of Securities or
Coupons that are United States Aliens, and the Company will pay to the Trustee
or such Paying Agent the additional interest, if any, required by the terms of
such Securities and this Section. The Company covenants to indemnify the Trustee
and any Paying Agent for, and to hold them harmless against, any loss, liability
or expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section 602.
Section 603. Paying Agent.
(a) The Company will maintain in each Place of Payment for any series of
Securities and Coupons, if any, an office or agency where Securities and Coupons
of such series (but, except as otherwise provided in Section 308, unless such
Place of Payment is located outside the United States, not Bearer Securities or
Coupons) may be presented or surrendered for payment, where Securities of such
series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities and
Coupons of such series and this Indenture may be served (the "Paying Agent"). So
long as any Bearer Securities of any series remain outstanding, the Company will
maintain for such purposes one or more offices or agencies outside the United
States in such city or cities specified pursuant to Section 301 and, if any
Bearer Securities are listed on a securities exchange that requires an office or
agency for the payment of principal of and premium, if any, or interest on such
Bearer Securities in a location other than the location of an office or agency
specified pursuant to Section 301, the Company will maintain for such purposes
an office or agency in such location so long as any Bearer Securities are listed
on such securities exchange and such exchange so requires. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee (in the case
of Registered Securities) and at the principal London office of the Trustee (in
the case of Bearer Securities), and the Company hereby appoints the Trustee as
Paying Agent to receive all presentations, surrenders, notices and demands.
(b) The Company may also from time to time designate different or
additional offices or agencies where the Securities of any series may be
presented or surrendered for any or all such purposes (in or outside of such
Place of Payment), and may from time to time rescind any such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligations described in the preceding paragraph. The
Company will give prompt written notice to the Trustee of any such additional
designation or rescission of designation and of any change in the location of
any such different or additional office or
42
agency. The Company shall enter into an appropriate agency agreement with any
Paying Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee and the Guarantor of the name and address of each such agent. The
Company, the Guarantor, or any Affiliate of the Company or the Guarantor may act
as Paying Agent.
Section 604. To Hold Payment in Trust.
(a) If the Company, the Guarantor or an Affiliate of either the Company or
the Guarantor shall at any time act as Paying Agent with respect to any series
of Securities and Coupons, if any, then, on or before the date on which the
principal of and premium, if any, or interest on any of the Securities of that
series by their terms or as a result of the calling thereof for redemption shall
become payable, the Company, the Guarantor or such Affiliate will segregate and
hold in trust for the benefit of the holders of such Securities or the Trustee a
sum sufficient to pay such principal and premium, if any, or interest which
shall have so become payable until such sums shall be paid to such holders or
otherwise disposed of as herein provided, and will notify the Trustee of its
action or failure to act in that regard. Upon any proceeding under any federal
bankruptcy laws with respect to the Company or the Guarantor or any Affiliate of
the Company or the Guarantor, if the Company, the Guarantor or such Affiliate is
then acting as Paying Agent, the Trustee shall replace the Company, the
Guarantor or such Affiliate as Paying Agent.
(b) If the Company shall appoint, and at the time have, a Paying Agent for
the payment of the principal of and premium, if any, or interest on any series
of Securities and Coupons, then prior to 10 a.m., New York City time, on the
date on which the principal of and premium, if any, or interest on any of the
Securities of that series shall become payable as aforesaid, whether by their
terms or as a result of the calling thereof for redemption, the Company will
deposit with such Paying Agent a sum sufficient to pay such principal and
premium, if any, or interest, such sum to be held in trust for the benefit of
the holders of such Securities or the Trustee, and (unless such Paying Agent is
the Trustee), the Company, the Guarantor or any other obligor of such Securities
will promptly notify the Trustee of its payment or failure to make such payment.
(c) If the Paying Agent shall be other than the Trustee, the Company will
cause such Paying Agent to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section 603, that such Paying Agent shall:
(i) hold all moneys held by it for the payment of the principal of and
premium, if any, or interest on the Securities of that series and any
related Coupons in trust for the benefit of the holders of such Securities
until such sums shall be paid to such holders or otherwise disposed of as
herein provided;
(ii) give to the Trustee notice of any Default by the Company, the
Guarantor or any other obligor upon the Securities of that series in the
making of any payment of the principal of and premium, if any, or interest
on the Securities of that series or any payment on any related Coupons when
the same shall have become due and payable; and
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(iii) at any time during the continuance of any such Default, upon the
written request of the Trustee, pay to the Trustee all sums so held in
trust by such Paying Agent.
(d) Anything in this Section 604 to the contrary notwithstanding, the
Company may at any time, for the purpose of obtaining a release, satisfaction or
discharge of this Indenture or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by the Company or by any Paying Agent other
than the Trustee as required by this Section 604, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent.
(e) Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and premium, if
any, or interest on any Security of any series or the payment of any related
Coupon and remaining unclaimed for two years after such principal and premium,
if any, or interest has become due and payable shall be paid to the Company upon
Company Request along with any interest that has accumulated thereon as a result
of such money being invested at the direction of the Company, or (if then held
by the Company) shall be discharged from such trust, and the holder of such
Security or Coupon shall thereafter, as an unsecured general creditor, look only
to the Company (except as with regards to the Guarantee) for payment of such
amounts without interest thereon, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent before being required to make any such repayment, may at
the expense of the Company cause to be transmitted in the manner and to the
extent provided by Section 1706, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such mailing, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 605. Merger, Consolidation and Sale of Assets.
(a) The Company will not consolidate with any other entity or accept a
merger of any other entity into the Company or permit the Company to be merged
into any other entity, or sell other than for cash or lease all or substantially
all its assets to another entity, or purchase all or substantially all the
assets of another entity, unless (i) either the Company shall be the continuing
entity, or the successor, transferee or lessee entity (if other than the
Company) shall expressly assume, by indenture supplemental hereto satisfactory
to the Trustee, executed and delivered by such entity prior to or simultaneously
with such consolidation, merger, sale or lease, the due and punctual payment of
the principal of and interest and premium, if any, on all the Securities (and
Coupons, if any), according to their tenor, and the due and punctual performance
and observance of all other obligations to the holders and the Trustee under
this Indenture or under the Securities (and Coupons, if any) to be performed or
observed by the Company; and (ii) immediately after such consolidation, merger,
sale, lease or purchase the Company or the successor, transferee or lessee
entity (if other than the Company) would not be in Default in the performance of
any covenant or condition of this Indenture. A purchase by a Subsidiary of all
or substantially all of the assets of another entity shall not be deemed to be a
purchase of such assets by the Company.
(b) Upon any consolidation with or merger into any other entity, or any
conveyance or lease of all or substantially all of the assets of the Company in
accordance with this Section
44
605, the successor entity formed by such consolidation or into or with which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
entity had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Company shall be relieved of all obligations and
covenants under this Indenture and the Securities and Coupons.
Section 606. Compliance Certificate. The Company shall furnish to the Trustee
annually, within 120 days after the end of each fiscal year, a brief certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture (which compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture) and, in the event of any Default, specifying each
such Default and the nature and status thereof of which such person may have
knowledge. Such certificates need not comply with Section 1702 of this
Indenture.
Section 607. Conditional Waiver by Holders of Securities. Anything in this
Indenture to the contrary notwithstanding, the Company or the Guarantor may fail
or omit in any particular instance to comply with a covenant or condition set
forth herein with respect to any series of Securities if the Company or the
Guarantor shall have obtained and filed with the Trustee, prior to the time of
such failure or omission, evidence (as provided in Article Eight) of the consent
of the holders of a majority in aggregate principal amount of the Securities of
such series at the time Outstanding, either waiving such compliance in such
instance or generally waiving compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, or impair any right consequent thereon and, until
such waiver shall have become effective, the obligations of the Company and the
Guarantor and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
Section 608. Statement by Officers as to Default. The Company shall deliver to
the Trustee and the Guarantor, as soon as possible and in any event within five
days after the Company becomes aware of the occurrence of any Event of Default
or an event which, with the giving of notice or the lapse of time or both, would
constitute an Event of Default, an Officer's Certificate setting forth the
details of such Event of Default or Default and the action which the Company
proposes to take with respect thereto.
Section 609. Issuances of Securities under this Indenture. Any Securities issued
under this Indenture shall either (x) be issued with the concurrence or approval
of the staff of the Federal Reserve Bank of New York or the staff of the Board
of Governors of the Federal Reserve System or (y) qualify at the time of
issuance for tier 2 capital treatment (irrespective of any limits on the amount
of the Guarantor's tier 2 capital) under the applicable capital adequacy
guidelines, regulations, policies or published interpretations of the Board of
Governors of the Federal Reserve System.
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ARTICLE SEVEN
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
Section 701. Events of Default. Except where otherwise indicated by the context
or where the term is otherwise defined for a specific purpose, the term "Event
of Default" as used in this Indenture with respect to Securities of any series
shall mean one of the following described events unless it is either
inapplicable to a particular series or it is specifically deleted or modified in
the supplemental indenture, if any, under which such series of Securities is
issued:
(a) the failure of the Company to pay any installment of interest on any
Security of such series or to make any payment with respect to the related
Coupons, if any, when and as the same shall become payable, which failure shall
have continued unremedied for a period of 30 days, whether or not such payment
is prohibited by Article Sixteen hereof;
(b) the failure of the Company to pay the principal of (and premium, if
any, on) any Security of such series, when and as the same shall become payable,
whether at Maturity as therein expressed, by call for redemption (otherwise than
pursuant to a sinking fund), by declaration as authorized by this Indenture or
otherwise, whether or not such payment is prohibited by Article Sixteen hereof;
(c) the failure of the Company to pay a sinking fund installment, if any,
when and as the same shall become payable by the terms of a Security of such
series, which failure shall have continued unremedied for a period of 30 days,
whether or not such payment is prohibited by Article Sixteen hereof;
(d) the failure of the Company, subject to the provisions of Section 608,
or the Guarantor to observe and perform any other of the covenants or agreements
on the part of the Company or the Guarantor, as applicable, contained in this
Indenture (including any indenture supplemental hereto pursuant to which the
Securities of such series were issued as contemplated by Section 301) (other
than a covenant or agreement which has been expressly included in this Indenture
solely for the benefit of a series of Securities other than that series), which
failure shall not have been remedied to the satisfaction of the Trustee, or
without provision deemed by the Trustee to be adequate for the remedying thereof
having been made, for a period of 90 days after written notice shall have been
given to the Company and the Guarantor by the Trustee or shall have been given
to the Company, the Guarantor and the Trustee by holders of 25% or more in
aggregate principal amount of the Securities of such series then Outstanding,
specifying such failure and requiring the Company or the Guarantor to remedy the
same;
(e) the entry by a court having jurisdiction in the premises of a decree or
order for relief in respect of the Company and the Guarantor in an involuntary
case under the federal bankruptcy laws, as now or hereafter constituted, or any
other applicable federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Company and the
Guarantor or of substantially all the property of the Company and the Guarantor
or ordering the winding-up or liquidation of its affairs and such decree or
order shall remain unstayed and in effect for a period of 90 consecutive days;
46
(f) the commencement by the Company and the Guarantor of a voluntary case
under the federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by the Company and the Guarantor to the
entry of an order for relief in an involuntary case under any such law, or the
consent by the Company and the Guarantor to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian or
sequestrator (or similar official) of the Company and the Guarantor or of
substantially all the property of the Company and the Guarantor or the making by
it of an assignment for the benefit of creditors or the admission by it in
writing of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company and the Guarantor in furtherance of
any action; or
(g) the occurrence of any other Event of Default with respect to Securities
of such series as provided in a supplemental indenture or Officers' Certificate,
if any, applicable to such series of Securities.
Section 702. Acceleration; Recission and Annulment.
(a) If any one or more of the above-described Events of Default shall
happen with respect to Securities of any series at the time Outstanding, then,
and in each and every such case, during the continuance of any such Event of
Default, the Trustee or the holders of 25% or more in principal amount of the
Securities of such series then Outstanding may (and upon the written request of
the holders of a majority in principal amount of such Securities then
Outstanding, the Trustee shall) declare the principal (or, if the Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of and all
accrued but unpaid interest on all the Securities of such series then
Outstanding, if not then due and payable, to be due and payable, and upon any
such declaration the same shall become and be immediately due and payable,
anything in this Indenture or in the Securities of such series contained to the
contrary notwithstanding; provided that no Event of Default with respect to
Securities of a series, except with respect to an Event of Default under
subsections (e) and (f) of Section 701 and except to the extent otherwise
provided in subsection (d) of Section 701, shall constitute an Event of Default
with respect to Securities of any other series. Upon payment of such amounts in
the Currency in which such Securities are denominated (except as otherwise
provided pursuant to Section 301), all obligations of the Company in respect of
the payment of principal of and interest on the Securities of such series shall
terminate.
(b) This provision, however, is subject to the condition that, if at any
time after the principal of all the Securities of such series, to which any one
or more of the above-described Events of Default is applicable, shall have been
so declared to be due and payable, and before a judgment or decree for payment
of the money due has been obtained by the Trustee as hereinafter in this Article
provided,
(i) the Company has paid or deposited with the Paying Agent a sum in
the Currency in which such Securities are denominated (except as otherwise
provided pursuant to Section 301) sufficient to pay
47
(A) all amounts owing the Trustee and any predecessor trustee
hereunder under Section 1101(a) (provided, however, that all sums
payable under this clause (A) shall be paid in U.S. Dollars);
(B) all arrears of interest, if any, upon all the Securities of
such series (and all overdue payments with respect to any related
Coupons) (with interest, to the extent that interest thereon shall be
legally enforceable, on any overdue installment of interest at the
rate borne by the Securities or Coupons of such series);
(C) the principal of and premium, if any, on any Securities of
such series that have become due otherwise than by such declaration of
acceleration and interest thereon; and
(D) all other sums payable under this Indenture (except the
principal of the Securities of such series which would not be due and
payable were it not for such declaration); and
(ii) every other Default and Event of Default under this Indenture
shall have been made good to the reasonable satisfaction of the Trustee or
of the holders of a majority in principal amount of the Securities of such
series then Outstanding, or provision deemed by the Trustee or by such
holders to be adequate therefor shall have been made, then and in every
such case the holders of a majority in principal amount of the Securities
of such series then Outstanding may, by written notice to the Company, the
Guarantor and the Trustee, on behalf of the holders of all the Securities
of such series, waive the Event of Default by reason of which the principal
of the Securities of such series shall have been so declared to be due and
payable and may rescind and annul such declaration and its consequences;
provided, however, that no such waiver, rescission or annulment shall
extend to or affect any subsequent Default or Event of Default or impair
any right consequent thereon.
(c) Any declaration by the Trustee pursuant to this Section 702 shall be by
written notice to the Company and the Guarantor, and any declaration or waiver
by the holders of Securities of any series pursuant to this Section 702 shall be
by written notice to the Company, the Guarantor and the Trustee.
(d) For all purposes under this Indenture, if a portion of the principal of
any 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
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 Discount Securities.
(e) The Company, the Guarantor and the Trustee may, to the extent provided
in Section 1401, enter into one or more indentures supplemental hereto with
respect to any series of
48
the Securities which may provide for additional or different Events of Default
with respect to such series of Securities.
Section 703. Other Remedies. If the Company shall fail for a period of 30 days
to pay any installment of interest on the Securities (and Coupons, if any) of
any series or shall fail to pay the principal of and premium, if any, on any of
the Securities of such series when and as the same shall become due and payable,
whether at Maturity, or by call for redemption (other than pursuant to the
sinking fund), by declaration as authorized by this Indenture, or otherwise, or
shall fail for a period of 30 days to make any sinking fund payment as to a
series of Securities, then, upon demand of the Trustee, the Company will pay to
the Paying Agent for the benefit of the holders of Securities of such series
then Outstanding the whole amount which then shall have become due and payable
on all the Securities of such series, with interest on the overdue principal and
premium, if any, and (so far as the same may be legally enforceable) on the
overdue installments of interest at the rate borne by the Securities of such
series, and all amounts owing the Trustee and any predecessor trustee hereunder
under Section 1101(a).
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceeding at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon the
Securities of such series, and collect the moneys adjudged or decreed to be
payable out of the property of the Company or any other obligor upon the
Securities of such series, wherever situated, in the manner provided by law.
Every recovery of judgment in any such action or other proceeding, subject to
the payment to the Trustee of all amounts owing the Trustee and any predecessor
trustee hereunder under Section 1101(a), shall be for the ratable benefit of the
holders of such series of Securities which shall be the subject of such action
or proceeding. All rights of action upon or under any of the Securities or this
Indenture may be enforced by the Trustee without the possession of any of the
Securities and without the production of any thereof at any trial or any
proceeding relative thereto.
Section 704. Trustee as Attorney-in-Fact. The Trustee is hereby appointed, and
each and every holder of the Securities, by receiving and holding the same,
shall be conclusively deemed to have appointed the Trustee, the true and lawful
attorney-in-fact of such holder, with authority to make or file (whether or not
the Company shall be in Default in respect of the payment of the principal of,
or interest on, any of the Securities), in its own name and as trustee of an
express trust or otherwise as it shall deem advisable, in any receivership,
insolvency, liquidation, bankruptcy, reorganization or other judicial proceeding
relative to the Company or any other obligor upon the Securities or to their
respective creditors or property, any and all claims, proofs of claim, proofs of
debt, petitions, consents, other papers and documents and amendments of any
thereof, as may be necessary or advisable in order to have the claims of the
Trustee and any predecessor trustee hereunder and of the holders of the
Securities allowed in any such proceeding and to collect and receive any moneys
or other property payable or deliverable on any such claim, and to execute and
deliver any and all other papers and documents and to do and perform any and all
other acts and things, as it may deem necessary or advisable in order to enforce
in any such proceeding any of the claims of the Trustee and any predecessor
trustee hereunder and of any of such holders in respect of any of the
Securities; and any receiver, assignee, trustee,
49
custodian or debtor in any such proceeding is hereby authorized, and each and
every taker or holder of the Securities, by receiving and holding the same,
shall be conclusively deemed to have authorized any such receiver, assignee,
trustee, custodian or debtor, to make any such payment or delivery only to or on
the order of the Trustee, and to pay to the Trustee any amount due it and any
predecessor trustee hereunder under Section 1101(a); provided, however, that
nothing herein contained shall be deemed to authorize or empower the Trustee to
consent to or accept or adopt, on behalf of any holder of Securities, any plan
of reorganization or readjustment affecting the Securities or the rights of any
holder thereof, or to authorize or empower the Trustee to vote in respect of the
claim of any holder of any Securities in any such proceeding.
Section 705. Priorities. Any moneys collected by the Trustee with respect to a
series of Securities under this Article Seven shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys and, in the case of the distribution of such moneys on account of
the Securities of any series, upon presentation of the Securities of such
series, and stamping thereon the payment, if only partially paid, and upon
surrender thereof, if fully paid:
First: To the payment of all amounts due to the Trustee and any
predecessor trustee hereunder under Section 1101(a).
Second: In case the principal of the Outstanding Securities of such
series shall not have become due and be unpaid, to the payment of interest
on the Securities of such series, in the order of the Maturity of the
installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue installments
of interest at the rate borne by such Securities, such payments to be made
ratably to the Persons entitled thereto.
Third: In case the principal of the Outstanding Securities of such
series shall have become due, by declaration or otherwise, to the payment
of the whole amount then owing and unpaid upon the Securities of such
series for principal and premium, if any, and interest, with interest on
the overdue principal and premium, if any, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the rate borne by the Securities of such series, and in case
such moneys shall be insufficient to pay in full the whole amounts so due
and unpaid upon the Securities of such series, then to the payment of such
principal and premium, if any, and interest without preference or priority
of principal and premium, if any, over interest, or of interest over
principal and premium, if any, or of any installment of interest over any
other installment of interest, or of any Security of such series over any
other Security of such series, ratably to the aggregate of such principal
and premium, if any, and accrued and unpaid interest.
Any surplus then remaining shall be paid to the Company or to such other Persons
as shall be entitled to receive it.
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Section 706. Control by Holders; Waiver of Past Defaults. The holders of a
majority in principal amount of the Securities of any series at the time
Outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee hereunder, or of exercising any trust or
power hereby conferred upon the Trustee with respect to the Securities of such
series, provided, however, that, subject to the provisions of Sections 1101 and
1102, the Trustee shall have the right to decline to follow any such direction
if the Trustee being advised by counsel determines that the action so directed
may not lawfully be taken or would be unduly prejudicial to holders not joining
in such direction or would involve the Trustee in personal liability. Prior to
any declaration accelerating the Maturity of the Securities of any series, the
holders of a majority in aggregate principal amount of such series of Securities
at the time Outstanding may on behalf of the holders of all of the Securities of
such series waive any past Default or Event of Default hereunder and its
consequences except a Default in the payment of interest or any premium on or
the principal of the Securities of such series. Upon any such waiver the
Company, the Guarantor, the Trustee and the holders of the Securities of such
series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereon. Whenever any Default
or Event of Default hereunder shall have been waived as permitted by this
Section 706, said Default or Event of Default shall for all purposes of the
Securities of such series and this Indenture be deemed to have been cured and to
be not continuing.
Section 707. Limitation on Suits. No holder of any Security of any series shall
have any right to institute any action, suit or proceeding at law or in equity
for the execution of any trust hereunder or for the appointment of a receiver or
for any other remedy hereunder, in each case with respect to an Event of Default
with respect to such series of Securities, unless such holder previously shall
have given to the Trustee written notice of the happening of one or more of the
Events of Default herein specified with respect to such series of Securities,
and unless also the holders of 25% in principal amount of the Securities of such
series then Outstanding shall have requested the Trustee in writing to take
action in respect of the matter complained of, and unless also there shall have
been offered to the Trustee security and indemnity satisfactory to it against
the costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after receipt of such notification, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding; and such notification, request and offer of indemnity are hereby
declared in every such case to be conditions precedent to any such action, suit
or proceeding by any holder of any Security of such series; it being understood
and intended that no one or more of the holders of Securities of such series
shall have any right in any manner whatsoever by his or their action to enforce
any right hereunder, except in the manner herein provided, and that every
action, suit or proceeding at law or in equity shall be instituted, had and
maintained in the manner herein provided and for the equal benefit of all
holders of the Outstanding Securities of such series; provided, however, that
nothing in this Indenture or in the Securities of such series shall affect or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on the Securities of such
series to the respective holders of such Securities at the respective due dates
in such Securities stated, or affect or impair the right, which is also absolute
and unconditional, of such holders to institute suit to enforce the payment
thereof.
51
Section 708. Undertaking for Costs. All parties to this Indenture and each
holder of any Security, by such holder's acceptance thereof, shall be deemed to
have agreed that any court may in its discretion require, in any action, suit or
proceeding for the enforcement of any right or remedy under this Indenture, or
in any action, suit or proceeding against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such action, suit
or proceeding of an undertaking to pay the costs of such action, suit or
proceeding, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such action,
suit or proceeding, having due regard to the merits and good faith of the claims
or defenses made by such party litigant; provided, however, that the provisions
of this Section 708 shall not apply to any action, suit or proceeding instituted
by the Trustee, to any action, suit or proceeding instituted by any one or more
holders of Securities holding in the aggregate more than 10% in principal amount
of the Securities of any series Outstanding, or to any action, suit or
proceeding instituted by any holder of Securities of any series for the
enforcement of the payment of the principal of or premium, if any, or the
interest on, any of the Securities of such series, on or after the respective
due dates expressed in such Securities.
Section 709. Remedies Cumulative. No remedy herein conferred upon or reserved to
the Trustee or to the holders of Securities of any series is intended to be
exclusive of any other remedy or remedies, and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute. No delay or omission of
the Trustee or of any holder of the Securities of any series to exercise any
right or power accruing upon any Default or Event of Default shall impair any
such right or power or shall be construed to be a waiver of any such Default or
Event of Default or an acquiescence therein; and every power and remedy given by
this Article Seven to the Trustee and to the holders of Securities of any
series, respectively, may be exercised from time to time and as often as may be
deemed expedient by the Trustee or by the holders of Securities of such series,
as the case may be. In case the Trustee or any holder of Securities of any
series shall have proceeded to enforce any right under this Indenture and the
proceedings for the enforcement thereof shall have been discontinued or
abandoned because of waiver or for any other reason or shall have been
adjudicated adversely to the Trustee or to such holder of Securities, then and
in every such case the Company, the Guarantor, the Trustee and the holders of
the Securities of such series shall severally and respectively be restored to
their former positions and rights hereunder, and thereafter all rights, remedies
and powers of the Trustee and the holders of the Securities of such series shall
continue as though no such proceedings had been taken, except as to any matters
so waived or adjudicated.
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 801. Evidence of Action of Securityholders. Whenever in this Indenture
it is provided that the holders of a specified percentage or a majority in
aggregate principal amount of the Securities or of any series of Securities may
take any action (including the making of any demand or request, the giving of
any notice, consent or waiver or the taking of any other action), the fact that
at the time of taking any such action the holders of such specified percentage
or majority have joined therein may be evidenced by (a) any instrument or any
number of
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instruments of similar tenor executed by Securityholders in person or by agent
or proxy appointed in writing (such action becoming effective, except as herein
otherwise expressly provided, when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company), or
(b) by the record of the holders of Securities voting in favor thereof at any
meeting of Securityholders duly called and held in accordance with the
provisions of Article Seven, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Securityholders.
Section 802. Proof of Execution or Holding of Securities. Proof of the execution
of any instrument by a Securityholder or his agent or proxy and proof of the
holding by any Person of any of the Securities shall be sufficient if made in
the following manner:
(a) The fact and date of the execution by any Person of any such instrument
may be proved (a) by the certificate of any notary public or other officer in
any jurisdiction who, by the laws thereof, has power to take acknowledgments or
proof of deeds to be recorded within such jurisdiction, that the Person who
signed such instrument did acknowledge before such notary public or other
officer the execution thereof, or (b) by the affidavit of a witness of such
execution sworn to before any such notary or other officer. Where such execution
is by a Person acting in other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
(b) The ownership of Registered Securities of any series shall be proved by
the Register of such Securities or by a certificate of the Registrar for such
series.
(c) The ownership of Bearer Securities shall be proved by production of
such Bearer Securities or by a certificate executed by any bank or trust
company, which certificate shall be dated and shall state on the date thereof a
Bearer Security bearing a specified identifying number or other ▇▇▇▇ was
deposited with or exhibited to the person executing such certificate by the
person named in such certificate, or by any other proof of possession reasonably
satisfactory to the Trustee. The holding by the person named in any such
certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Securities shall be produced, (2) such Bearer Security shall be
produced by some other Person, (3) such Bearer Security shall have been
registered on the Register, if, pursuant to Section 301, such Bearer Security
can be so registered, or (4) such Bearer Security shall have been canceled or
paid.
(d) The record of any holders' meeting shall be proved in the manner
provided in Section 906.
(e) The Trustee may require such additional proof of any matter referred to
in this Section 802 as it shall deem appropriate or necessary, so long as the
request is a reasonable one.
(f) If the Company shall solicit from the holders of Securities of any
series any action, the Company may, at its option, by Board Resolution, fix in
advance a record date for the determination of holders of Registered Securities
entitled to take such action, but the Company shall have no obligation to do so.
Any such record date shall be fixed at the Company's
53
discretion. If such a record date is fixed, such action may be sought or given
before or after the record date, but only the holders of Registered Securities
of record at the close of business on such record date shall be deemed to be
holders of Registered Securities for the purpose of determining whether holders
of the requisite proportion of Outstanding Securities of such series have
authorized or agreed or consented to such action, and for that purpose the
Outstanding Registered Securities of such series shall be computed as of such
record date.
Section 803. Persons Deemed Owners.
(a) The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to Section 308) interest, if any,
on, such Registered Security and for all other purposes whatsoever, whether or
not such Registered Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary. The Company, the Trustee, and any agent of the Company or the Trustee
may treat the holder of any Bearer Security or of any Coupon as the absolute
owner of such Bearer Security or Coupon for the purposes of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Bearer Security or Coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or any Trustee shall be affected by notice
to the contrary. All payments made to any holder, or upon his order, shall be
valid, and, to the extent of the sum or sums paid, effectual to satisfy and
discharge the liability for moneys payable upon such Security or Coupon.
(b) None of the Company, the Trustee, any Paying Agent or the Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Section 804. Revocation of Consents. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 801, of the taking of any
action by the holders of the percentage in aggregate principal amount of the
Securities or of any series of Securities specified in this Indenture in
connection with such action, any holder of a Security which is shown by the
evidence to be included in the Securities the holders of which have consented to
such action may, by filing written notice with the Trustee at its principal
office and upon proof of holding as provided in Section 802, revoke such action
so far as concerns such Security. Except as aforesaid, any such action taken by
the holder of any Security shall be conclusive and binding upon such holder and
upon all future holders of such Security, and all past, present and future
holders of Coupons, if any, appertaining thereto and of any Securities and
Coupons issued on transfer or in lieu thereof or in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon such Security or Coupons or such other Securities or Coupons or any
Security or Coupons issued in exchange or substitution therefor.
54
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
Section 901. Purposes of Meetings. A meeting of Securityholders of any or all
series may be called at any time and from time to time pursuant to the
provisions of this Article Nine for any of the following purposes:
(a) to give any notice to the Company, the Guarantor or to the Trustee, or
to give any directions to the Trustee, or to consent to the waiving of any
Default hereunder and its consequences, or to take any other action authorized
to be taken by Securityholders pursuant to any of the provisions of Article
Eight;
(b) to remove the Trustee and nominate a successor trustee pursuant to the
provisions of Article Eleven;
(c) to consent to the execution of an Indenture or of indentures
supplemental hereto pursuant to the provisions of Section 1402; or
(d) to take any other action authorized to be taken by or on behalf of the
holders of any specified aggregate principal amount of the Securities of any one
or more or all series, as the case may be, under any other provision of this
Indenture or under applicable law.
Section 902. Call of Meetings by Trustee. The Trustee may at any time call a
meeting of all Securityholders of all series that may be affected by the action
proposed to be taken, to take any action specified in Section 801, to be held at
such time and at such place in the Borough of Manhattan, The City of New York,
as the Trustee shall determine. Notice of every meeting of the Securityholders
of a series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be mailed to
holders of Securities of such series at their addresses as they shall appear on
the Register of the Company. Such notice shall be mailed not less than 20 nor
more than 90 days prior to the date fixed for the meeting.
Section 903. Call of Meetings by Company or Securityholders. In case at any time
the Company, pursuant to a resolution of its Board of Directors, or the holders
of at least 10% in aggregate principal amount of the Securities of a series (or
of all series, as the case may be) then Outstanding that may be affected by the
action proposed to be taken, shall have requested the Trustee to call a meeting
of Securityholders of such series (or of all series), by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed the notice of such meeting within 20 days
after receipt of such request, then the Company or such Securityholders may
determine the time and the place in said Borough of Manhattan for such meeting
and may call such meeting to take any action authorized in Section 901, by
mailing notice thereof as provided in Section 902.
Section 904. Qualifications for Voting. To be entitled to vote at any meeting of
Securityholders, a Person shall (a) be a holder of one or more Securities
affected by the action proposed to be taken at the meeting or (b) be a Person
appointed by an instrument in writing as proxy by a holder of one or more such
Securities. The only Persons who shall be entitled to be present or to speak at
any meeting of Securityholders shall be the Persons entitled to vote at such
55
meeting and their counsel and any representatives of the Trustee and its counsel
and any representatives of the Company, the Guarantor and their respective
counsel.
Section 905. Regulation of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 903, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
(c) At any meeting of Securityholders of a series, each Securityholder of
such series of such Securityholder's proxy shall be entitled to one vote for
each $1,000 principal amount of Securities of such series Outstanding held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Securities of such
series held by him or her or instruments in writing as aforesaid duly
designating him or her as the Person to vote on behalf of other Securityholders.
At any meeting of the Securityholders duly called pursuant to the provisions of
Section 902 or 903 the presence of Persons holding or representing Securities in
an aggregate principal amount sufficient to take action upon the business for
the transaction of which such meeting was called shall be necessary to
constitute a quorum, and any such meeting may be adjourned from time to time by
a majority of those present, whether or not constituting a quorum, and the
meeting may be held as so adjourned without further notice.
Section 906. Voting. The vote upon any resolution submitted to any meeting of
Securityholders of a series shall be by written ballots on which shall be
subscribed the signatures of the holders of Securities of such series or of
their representatives by proxy and the principal amounts of the Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 902. The record
shall show the principal amounts of the Securities voting in favor of or against
any resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee.
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Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 907. No Relay of Rights by Meeting. Nothing contained in this Article
Nine shall be deemed or construed to authorize or permit, by reason of any call
of a meeting of Securityholders of any series or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Securityholders of such series under any of the provisions of this Indenture
or of the Securities of such series.
ARTICLE TEN
REPORTS BY THE COMPANY, THE GUARANTOR AND THE TRUSTEE AND
SECURITYHOLDERS' LISTS
Section 1001. Reports by Trustee.
(a) The Trustee shall transmit to holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided thereto. If required
by Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days
after each May 15 following the date of this Indenture deliver to holders a
brief report, dated as of such May 15, which complies with the provisions of
such Section 313(a).
(b) The Trustee shall, at the time of the transmission to the holders of
Securities of any report pursuant to the provisions of this Section 1001, file a
copy of such report with each stock exchange upon which the Securities are
listed and also with the SEC in respect of a Security listed and registered on a
national securities exchange. The Company agrees to notify the Trustee when, as
and if the Securities become listed on any stock exchange.
The Company will reimburse the Trustee for all expenses incurred in the
preparation and transmission of any report pursuant to the provisions of this
Section 1001 and of Section 1002.
Section 1002. Reports by the Company and the Guarantor.
(a) Unless available on ▇▇▇▇▇, the Company and the Guarantor shall file
with the Trustee, within 30 days after the Company or the Guarantor, as
applicable, shall be required so to file the same with the SEC, copies of the
annual reports and of the information, documents and other reports which the
Company or the Guarantor may be required to file with the SEC pursuant to the
provisions of Section 13 or Section 15(d) of the Exchange Act (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe); or, if either the Company or the Guarantor is not required to file
information, documents or reports pursuant to the provisions of either of such
Sections, then the Company or the Guarantor, as applicable, will file with the
Trustee and the SEC, in accordance with rules and regulations prescribed by the
SEC, such of the supplementary and periodic information, documents and reports
which may be required pursuant to the provisions of Section 13 of the Exchange
Act, in respect of a Security listed and registered on a national securities
exchange, as may be prescribed in such rules and regulations.
57
(b) The Company and the Guarantor shall file with the Trustee and the SEC,
in accordance with rules and regulations prescribed by the SEC, such additional
information, documents and reports with respect to compliance by the Company and
the Guarantor, as applicable, with the conditions and covenants provided for in
this Indenture as may be required by such rules and regulations.
(c) The Company and the Guarantor shall transmit to the holders of
Securities, within 30 days after the filing thereof with the Trustee (unless
some other time shall be fixed by the SEC in respect of a Security listed and
registered on a national securities exchange), in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, such summaries of any
information, documents and reports required to be filed by the Company or the
Guarantor, as applicable, pursuant to the provisions of subdivisions (a) and (b)
of this Section 1002 as may be required by rules and regulations prescribed from
time to time by the SEC.
(d) 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 and the
Guarantor's compliance, as applicable, with any of its covenants hereunder (as
to which the Trustee is entitled to conclusively rely exclusively on Officer's
Certificates).
Section 1003. Securityholders' Lists. The Company covenants and agrees that it
will furnish or cause to be furnished to the Trustee: (a) semi-annually, within
15 days after each Record Date, but in any event not less frequently than
semi-annually, a list in such form as the Trustee may reasonably require of the
names and addresses of the holders of Securities to which such Record Date
applies, as of such Record Date, and
(b) at such other times as the Trustee may request in writing, within 30
days after receipt by the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is
furnished;
provided, however, that so long as the Trustee shall be the Registrar, such
lists shall not be required to be furnished.
ARTICLE ELEVEN
CONCERNING THE TRUSTEE
Section 1101. Rights of Trustees; Compensation and Indemnity. The Trustee
accepts the trusts created by this Indenture upon the terms and conditions
hereof, including the following, to all of which the parties hereto and the
holders from time to time of the Securities agree:
(a) The Trustee shall be entitled to such compensation as the Company and
the Trustee shall from time to time agree in writing for all services rendered
by it hereunder (including in any agent capacity in which it acts). The
compensation of the Trustee shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust.
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The Company shall reimburse the Trustee promptly upon its request for all
reasonable out-of-pocket expenses, disbursements and advances incurred or made
by the Trustee (including the reasonable expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith. The Company also agrees to
indemnify each of the Trustee and any predecessor Trustee hereunder for, and to
hold it harmless against, any and all loss, liability, damage, claim, or expense
incurred without its own negligence or bad faith, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder and the performance of its duties (including in any agent capacity in
which it acts), as well as the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. As security for the performance of the
obligations of the Company under this subdivision (a) the Trustee shall have a
lien therefor on any moneys held by the Trustee hereunder prior to any rights
therein of the holders of the Securities. Notwithstanding any provisions of this
Indenture to the contrary, the obligations of the Company to compensate and
indemnify the Trustee under this Section 1101(a) shall survive the resignation
or removal of the Trustee and any satisfaction and discharge under Article
Twelve.
When the Trustee incurs expenses or renders services after an Event of
Default specified in clause (e) or (f) of Section 701 occurs, the expenses and
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
similar laws.
(b) The Trustee may execute any of the trusts or powers hereof and perform
any duty hereunder either directly or by its agents and attorneys and shall not
be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
(c) The Trustee shall not be responsible in any manner whatsoever for the
correctness of the recitals herein or in the Securities (except its certificates
of authentication thereon) contained, all of which are made solely by the
Company or the Guarantor; and the Trustee shall not be responsible or
accountable in any manner whatsoever for or with respect to the validity or
execution or sufficiency of this Indenture or of the Securities (except its
certificates of authentication thereon), and the Trustee makes no representation
with respect thereto. The Trustee shall not be accountable for the use or
application by the Company of any Securities, or the proceeds of any Securities,
authenticated and delivered by the Trustee in conformity with the provisions of
this Indenture.
(d) The Trustee may consult with counsel of its selection, and, to the
extent permitted by Section 1102, any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or suffered
by the Trustee hereunder in good faith and in accordance with such Opinion of
Counsel.
(e) The Trustee, to the extent permitted by Section 1102, may rely upon the
certificate of the Secretary or one of the Assistant Secretaries of the Company
or the Guarantor, as applicable, as to the adoption of any resolution by the
Board of Directors or stockholders of the Company or the Guarantor, and any
request, direction, order or demand of the Company or the Guarantor mentioned
herein shall be sufficiently evidenced by, and whenever in the
59
administration of this Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, offering or omitting any action
hereunder, the Trustee may rely upon, an Officers' Certificate of the Company or
the Guarantor, as applicable (unless other evidence in respect thereof be herein
specifically prescribed).
(f) The Trustee or any agent of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
310(b) and 311 of the Trust Indenture Act, may otherwise deal with each of the
Company and the Guarantor with the same rights it would have had if it were not
the Trustee or such agent.
(g) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or the Guarantor, as the case may be.
(h) Any action taken by the Trustee pursuant to any provision hereof at the
request or with the consent of any Person who at the time is the holder of any
Security shall be conclusive and binding in respect of such Security upon all
future holders thereof or of any Security or Securities which may be issued for
or in lieu thereof in whole or in part, whether or not such Security shall have
noted thereon the fact that such request or consent had been made or given.
(i) Subject to the provisions of Section 1102, the Trustee may conclusively
rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, debenture or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties.
(j) Subject to the provisions of Section 1102, the Trustee shall not be
under any obligation to exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of any of the holders of the
Securities, pursuant to any provision of this Indenture, unless one or more of
the holders of the Securities shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities which
may be incurred by it therein or thereby.
(k) Subject to the provisions of Section 1102, the Trustee shall not be
liable for any action taken or omitted by it in good faith and believed by it to
be authorized or within its discretion or within the rights or powers conferred
upon it by this Indenture.
(l) Subject to the provisions of Section 1102, the Trustee shall not be
deemed to have knowledge or notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless the
holders of not less than 25% of the Outstanding Securities notify the Trustee
thereof.
(m) Subject to the provisions of the first paragraph of Section 1102, the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may
60
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney at the sole cost of the
Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.
(n) The rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder.
(o) The Trustee may request that the Company deliver a certificate setting
forth the names of individuals and/or titles of officers authorized at such time
to take specified actions pursuant to this Indenture.
Section 1102. Duties of Trustee.
(a) If one or more of the Events of Default specified in Section 701 with
respect to the Securities of any series shall have happened, then, during the
continuance thereof, the Trustee shall, with respect to such Securities,
exercise such of the rights and powers vested in it by this Indenture, and shall
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(b) None of the provisions of this Indenture shall be construed as
relieving the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that, anything
in this Indenture contained to the contrary notwithstanding,
(i) unless and until an Event of Default specified in Section 701 with
respect to the Securities of any series shall have happened which at the
time is continuing,
(A) the Trustee undertakes to perform such duties and only such
duties with respect to the Securities of that series as are
specifically set out in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee,
whose duties and obligations shall be determined solely by the express
provisions of this Indenture; and
(B) the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, in
the absence of bad faith on the part of the Trustee, upon certificates
and opinions furnished to it pursuant to the express provisions of
this Indenture; but in the case of any such certificates or opinions
which, by the provisions of this Indenture, are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate
the accuracy of mathematical calculations or other facts stated
therein);
(ii) the Trustee shall not be liable to any holder of Securities or to
any other Person for any error of judgment made in good faith by a
Responsible Officer or Officers
61
of the Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable to any holder of Securities or
to any other Person with respect to any action taken or omitted to be taken
by it in good faith, in accordance with the direction of Securityholders
given as provided in Section 706, relating to the time, method and place of
conducting any proceeding for any remedy available to it or exercising any
trust or power conferred upon it by this Indenture.
(c) None of the provisions of this Indenture shall be construed as
requiring the Trustee to expend or risk its own funds or otherwise to incur any
financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if there shall be reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
1102.
Section 1103. Notice of Defaults. Within 90 days after the occurrence thereof,
the Trustee shall give to the holders of the Securities and Coupons of a series
notice of each Default with respect to the Securities or Coupons, if any, of
such series known to the Trustee, by transmitting such notice to holders at
their addresses as the same shall then appear on the Register of the Company,
unless such Default shall have been cured before the giving of such notice (the
term "Default" being hereby defined to be the events specified in Section 701,
which are, or after notice or lapse of time or both would become, Events of
Default as defined in said Section); but, unless such Default be the failure to
pay the principal of, premium, if any, or interest on any of the Securities or
Coupons, if any, of such series when and as the same shall become payable, or to
make any sinking fund payment as to Securities of the same series, the Trustee
shall be protected in withholding such notice, if and so long as the Board of
Directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the holders of the Securities
of such series.
Section 1104. Eligibility; Disqualification.
(a) The Trustee shall at all times satisfy the requirements of TIA Section
310(a). The Trustee shall have a combined capital and surplus of at least $50
million as set forth in its more recent published annual report of condition,
and shall have its Corporate Trust Office or an agency in New York, New York;
provided, however, that if Section 310(a) of the Trust Indenture Act or the
rules and regulations of the Commission under the Trust Indenture Act at any
time permit a corporation organized and doing business under the laws of any
other jurisdiction to serve as trustee of an indenture qualified under the Trust
Indenture Act, this Section 1104 shall be automatically amended to permit a
corporation organized and doing business under the laws of any such other
jurisdiction to serve as Trustee hereunder. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of
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this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
(b) The Trustee shall comply with TIA Section 310(b); provided, however,
that there shall be excluded from the operation of TIA Section 310(b)(i) any
indenture or indentures under which other securities or certificates of interest
or participation in other securities of the Company or the Guarantor are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(i) are met. If the Trustee has or shall acquire a conflicting interest
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture. If Section 310(b) of the Trust Indenture Act is amended any time
after the date of this Indenture to change the circumstances under which a
Trustee shall be deemed to have a conflicting interest with respect to the
Securities of any series or to change any of the definitions in connection
therewith, this Section 1104 shall be automatically amended to incorporate such
changes.
Section 1105. Registration and Notice; Removal. The Trustee, or any successor to
it hereafter appointed, may at any time resign and be discharged of the trusts
hereby created with respect to any one or more or all series of Securities by
giving to the Company and to the Guarantor notice in writing and by mailing
notice thereof to the holders of Securities of such series at their addresses as
the same shall then appear in the Register of the Company. Such resignation
shall take effect upon the appointment of a successor Trustee and the acceptance
of such appointment by such successor Trustee. Any Trustee hereunder may be
removed with respect to any series of Securities at any time by the filing with
such Trustee and the delivery to the Company and to the Guarantor of an
instrument or instruments in writing signed by the holders of a majority in
principal amount of the Securities of such series then Outstanding, specifying
such removal and the date when it shall become effective.
Upon its resignation or removal, any Trustee shall be entitled to the
payment of reasonable compensation for the services rendered hereunder by such
Trustee and to the payment of all reasonable expenses incurred hereunder and all
moneys then due to it hereunder. The Trustee's rights to indemnification
provided in Section 1101(a) shall survive its resignation or removal.
Section 1106. Successor Trustee by Appointment.
(a) In case at any time the Trustee shall resign, or shall be removed
(unless the Trustee shall be removed as provided in Section 1104(b), in which
event the vacancy shall be filled as provided in said subdivision), or shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or if
a receiver of the Trustee or of its property shall be appointed, or if any
public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation with
respect to the Securities of one or more series, a successor Trustee with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect
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to the Securities of any series) may be appointed by the holders of a majority
in principal amount of the Securities of that or those series then Outstanding,
by an instrument or instruments in writing signed in duplicate by such holders
and filed, one original thereof with the Company and the other with the
successor Trustee; but, until a successor Trustee shall have been so appointed
by the holders of Securities of that or those series as herein authorized, the
Company by a resolution of its Board of Directors, or, in case all or
substantially all the assets of the Company shall be in the possession of one or
more custodians or receivers lawfully appointed, or of trustees in bankruptcy or
reorganization proceedings (including a trustee or trustees appointed under the
provisions of the federal bankruptcy laws, as now or hereafter constituted), or
of assignees for the benefit of creditors, such receivers, custodians, trustees
or assignees, as the case may be, by an instrument in writing, shall appoint a
successor Trustee with respect to the Securities of such series. Subject to the
provisions of Sections 1104 and 1105, upon the appointment as aforesaid of a
successor Trustee with respect to the Securities of any series, the Trustee with
respect to the Securities of such series shall cease to be Trustee hereunder.
After any such appointment other than by the holders of Securities of that or
those series, the Person making such appointment shall forthwith cause notice
thereof to be mailed to the holders of Securities of such series at their
addresses as the same shall then appear on the Register of the Company but any
successor Trustee with respect to the Securities of such series so appointed
shall, immediately and without further act, be superseded by a successor Trustee
appointed by the holders of Securities of such series in the manner above
prescribed, if such appointment be made prior to the expiration of one year from
the date of the mailing of such notice by the Company, or by such receivers,
trustees or assignees.
(b) If any Trustee with respect to the Securities of one or more series
shall resign because of conflicting interest as provided in Section 1104(b) and
a successor Trustee shall not have been appointed by the Company or by the
holders of the Securities of such series or, if any successor Trustee so
appointed shall not have accepted its appointment within 30 days after such
appointment shall have been made, the resigning Trustee at the expense of the
Company may apply to any court of competent jurisdiction for the appointment of
a successor Trustee. If in any other case a successor Trustee shall not be
appointed pursuant to the foregoing provisions of this Section 1106 within three
months after such appointment might have been made hereunder, the holder of any
Security of the applicable series or any retiring Trustee at the expense of the
Company may apply to any court of competent jurisdiction to appoint a successor
Trustee. Such court may thereupon, in any such case, after such notice, if any,
as such court may deem proper and prescribe, appoint a successor Trustee.
(c) Any successor Trustee appointed hereunder with respect to the
Securities of one or more series shall execute, acknowledge and deliver to its
predecessor Trustee and to the Company, or to the receivers, trustees, assignees
or court appointing it, as the case may be, an instrument accepting such
appointment hereunder, and thereupon such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations with respect to such series
of such predecessor Trustee with like effect as if originally named as Trustee
hereunder, and such predecessor Trustee, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to pay over, and
such successor Trustee shall be entitled to receive, all moneys and properties
held by such predecessor Trustee as Trustee hereunder. Nevertheless, on the
written request of the Company or of the successor Trustee or of the holders of
at least 10% in principal
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amount of the Securities of such series then Outstanding, such predecessor
Trustee, upon payment of its said charges and disbursements, shall execute and
deliver an instrument transferring to such successor Trustee upon the trusts
herein expressed all the rights, powers and trusts of such predecessor Trustee
and shall assign, transfer and deliver to the successor Trustee all moneys and
properties held by such predecessor Trustee; and, upon request of any such
successor Trustee, the Company and the Guarantor shall make, execute,
acknowledge and deliver any and all instruments in writing for more fully and
effectually vesting in and confirming to such successor Trustee all such
authority, rights, powers, trusts, immunities, duties and obligations.
Section 1107. Successor Trustee by Merger. Any corporation into which the
Trustee or any successor to it in the trusts created by this Indenture shall be
merged or converted, or any corporation with which it or any successor to it
shall be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee or any such successor to it shall be a
party, or any corporation to which the Trustee or any successor to it shall sell
or otherwise transfer all or substantially all of the corporate trust business
of the Trustee, shall be the successor Trustee under this Indenture without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided that such corporation shall be otherwise qualified and
eligible under this Article. In case at the time such successor to the Trustee
shall succeed to the trusts created by this Indenture with respect to one or
more series of Securities, any of such Securities shall have been authenticated
but not delivered by the Trustee then in office, any successor to such Trustee
may adopt the certificate of authentication of any predecessor Trustee, and
deliver such Securities so authenticated; and in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or authenticate Securities in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
Section 1108. Right to Rely on Officer's Certificate. Subject to Section 1102,
and subject to the provisions of Section 1702 with respect to the certificates
required thereby, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering 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 with respect thereto delivered to the Trustee, and such Officers'
Certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted by it under the provisions of this Indenture upon the faith thereof.
Section 1109. Appointment of Authenticating Agent. The Trustee may appoint an
agent (the "Authenticating Agent") reasonably acceptable to the Company to
authenticate the Securities. Unless limited by the terms of such appointment,
any such Authenticating Agent may authenticate Securities whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by the Authenticating Agent.
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Section 1110. Communications by Holders with Other Holders. Holders may
communicate pursuant to Section 312(b) of the Trust Indenture Act with other
holders with respect to their rights under this Indenture or the Securities. The
Company, the Guarantor, the Trustee, the Registrar and anyone else shall have
the protection of Section 312(c) of the Trust Indenture Act with respect to such
communications.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 1201. Applicability of Article. If, pursuant to Section 301, provision
is made for the defeasance of Securities of a series and if the Securities of
such series are Registered Securities and denominated and payable only in U.S.
Dollars (except as provided pursuant to Section 301), then the provisions of
this Article shall be applicable except as otherwise specified pursuant to
Section 301 for Securities of such series. Defeasance provisions, if any, for
Securities denominated in a Foreign Currency or for Bearer Securities may be
specified pursuant to Section 301.
Section 1202. Satisfaction and Discharge of Indenture. This Indenture, with
respect to the Securities of any series (if all series issued under this
Indenture are not to be affected), shall, upon Company Request, cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of such Securities herein expressly provided for and rights to receive
payments of principal of and premium, if any, and interest on such Securities
and any right to receive additional interest as provided in Section 602) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when,
(a) either:
(i) all Securities and the Coupons, if any, of such series theretofore
authenticated and delivered (other than (i) Coupons appertaining to Bearer
Securities of such series surrendered in exchange for Registered Securities
of such series and maturing after such exchange, surrender of which is not
required or has been waived as provided in ▇▇▇▇▇▇▇ ▇▇▇, (▇▇) Securities and
Coupons of such series that have been destroyed, lost or stolen and that
have been replaced or paid as provided in ▇▇▇▇▇▇▇ ▇▇▇, (▇▇▇) Coupons
appertaining to Bearer Securities of such series called for redemption and
maturing after the relevant Redemption Date, surrender of which has been
waived as provided in Section 406 and (iv) Securities and Coupons of such
series for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 604) have
been delivered to the Trustee for cancellation; or
(ii) all Securities and the Coupons, if any, of such series not
theretofore delivered to the Trustee for cancellation,
(A) have become due and payable, or
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(B) will become due and payable at their Stated Maturity within
one year, or
(C) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice by
the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Paying Agent as trust funds in
trust for the purpose an amount in the Currency in which such Securities
are denominated (except as otherwise provided pursuant to Section 301)
sufficient to pay and discharge the entire indebtedness on such Securities
for principal and premium, if any, and interest to the date of such deposit
(in the case of Securities and Coupons that have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be; provided,
however, in the event a petition for relief under federal bankruptcy laws,
as now or hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, is filed with respect to the
Company within 91 days after the deposit and the Trustee is required to
return the moneys then on deposit with the Trustee to the Company, the
obligations of the Company under this Indenture with respect to such
Securities shall not be deemed terminated or discharged;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture with respect to
such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 1101 are, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 1207 and the last
paragraph of Section 604(e) shall survive.
Section 1203. Defeasance upon Deposit of Moneys or U.S Government Obligations.
At the Company's option, either (a) the Company shall be deemed to have been
Discharged (as defined below) from its obligations with respect to Securities of
any series on the first day after the applicable conditions set forth below have
been satisfied or (b) the Company shall cease to be under any obligation to
comply with any term, provision or condition set forth in Section 605 with
respect to Securities of any series (and, if so specified pursuant to Section
301, any other restrictive covenant added for the benefit of such series
pursuant to Section 301) at any time after the applicable conditions set forth
below have been satisfied:
(a) The Company shall have deposited or caused to be deposited irrevocably
with the Paying Agent as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the holders of the Securities of
such series (i) money in an amount, or (ii) U.S. Government Obligations (as
defined below) that through the payment of interest and principal in respect
thereof in accordance with their terms will provide, not later than one day
before the due
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date of any payment, money in an amount or (iii) a combination of (i) and (ii),
sufficient to pay and discharge each installment of principal (including any
mandatory sinking fund payments) of and premium, if any, and interest on, the
Outstanding Securities of such series on the dates such installments of interest
or principal and premium are due;
(b) If the Securities of such series are then listed on the New York Stock
Exchange, the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Company's exercise of its option under this Section would
not cause such Securities to be delisted;
(c) No Event of Default or event (including such deposit) that, with notice
or lapse of time, or both, would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the date of
such deposit; and
(d) The Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that holders of the Securities of such series will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of the
Company's exercise of its option under this Section and will be subject to
federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if such action had not been exercised and, in
the case of the Securities of such series being Discharged accompanied by a
ruling to that effect received from or published by the Internal Revenue
Service.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of holders of Securities of such series to receive,
from the trust fund described in clause (a) above, payment of the principal of
and premium, if any, and interest on such Securities when such payments are due,
(B) the Company's obligations with respect to Securities of such series under
Sections 304, 306, 307, 603, 1206 and 1207 and (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the timely of
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, that, in either case under clauses (i) or (ii)
are not callable or redeemable at the action of the issuer thereof, and shall
also include a depositary 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 depositary receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depositary receipt.
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Section 1204. Repayment to Company. The Trustee and any Paying Agent shall
promptly pay to the Company (or to its designee) upon Company Request any excess
moneys or U.S. Government Obligations held by them at any time, including any
such moneys or obligations held by the Trustee under any escrow trust agreement
entered into pursuant to Section 1206. The provisions of the last paragraph of
Section 604 shall apply to any money held by the Trustee or any Paying Agent
under this Article that remains unclaimed for two years after the Maturity of
any series of Securities for which money or U.S. Government Obligations have
been deposited pursuant to Section 1203.
Section 1205. Indemnity for U.S. Government Obligations. The Company shall pay
and shall indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the deposited U.S. Government Obligations or the principal
or interest received on such U.S. Government Obligations.
Section 1206. Deposits to Be Held in Escrow. Any deposits with the Paying Agent
referred to in Section 1203 above shall be irrevocable (except to the extent
provided in Sections 1204 and 1207) and shall be made under the terms of an
escrow trust agreement in form and substance satisfactory to the Trustee. If any
Outstanding Securities of a series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory or optional sinking fund requirement, the
applicable escrow trust agreement shall provide therefor and the Company shall
make such arrangements as are satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company. The agreement shall provide that, upon satisfaction of any mandatory
sinking fund payment requirements, whether by deposit of moneys, application of
proceeds of deposited U.S. Government Obligations or, if permitted, by delivery
of Securities, the Trustee shall pay or deliver over to the Company as excess
moneys pursuant to Section 1204 all funds or obligations then held under the
agreement and allocable to the sinking fund payment requirements so satisfied.
If Securities of a series with respect to which such deposits are made may
be subject to later redemption at the option of the Company or pursuant to
optional sinking fund payments, the applicable escrow trust agreement may, at
the option of the Company, provide therefor. In the case of an optional
redemption in whole or in part, such agreement shall require the Company to
deposit with the Trustee on or before the date notice of redemption is given
funds sufficient to pay the Redemption Price of the Securities to be redeemed
together with all unpaid interest thereon to the Redemption Date. Upon such
deposit of funds, the Trustee shall pay or deliver over to the Company as excess
funds pursuant to Section 1204 all funds or obligations then held under such
agreement and allocable to the Securities to be redeemed. In the case of
exercise of optional sinking fund payment rights by the Company, such agreement
shall, at the option of the Company, provide that upon deposit by the Company
with the Trustee of funds pursuant to such exercise the Trustee shall pay or
deliver over to the Company as excess funds pursuant to Section 1204 all funds
or obligations then held under such agreement for such series and allocable to
the Securities to be redeemed.
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Section 1207. Application of Trust Money.
(a) Neither the Trustee nor any other paying agent shall be required to pay
interest on any moneys deposited pursuant to the provisions of this Indenture,
except such as it shall agree with the Company to pay thereon. Any moneys so
deposited for the payment of the principal of, or premium, if any, or interest
on the Securities of any series and remaining unclaimed for two years after the
date of the maturity of the Securities of such series or the date fixed for the
redemption of all the Securities of such series at the time outstanding, as the
case may be, shall be repaid by the Trustee or such other paying agent to the
Company upon its written request and thereafter, anything in this Indenture to
the contrary notwithstanding, any rights of the holders of Securities of such
series in respect of which such moneys shall have been deposited shall be
enforceable only against the Company, and all liability of the Trustee or such
other paying agent with respect to such moneys shall thereafter cease.
(b) Subject to the provisions of the foregoing paragraph, any moneys which
at any time shall be deposited by the Company or on its behalf with the Trustee
or any other paying agent for the purpose of paying the principal of, premium,
if any, and interest on any of the Securities shall be and are hereby assigned,
transferred and set over to the Trustee or such other paying agent in trust for
the respective holders of the Securities for the purpose for which such moneys
shall have been deposited; but such moneys need not be segregated from other
funds except to the extent required by law.
Section 1208. Deposits of Non-U.S. Currencies. Notwithstanding the foregoing
provisions of this Article, if the Securities of any series are payable in a
Currency other than U.S. Dollars, the Currency or the nature of the government
obligations to be deposited with the Trustee under the foregoing provisions of
this Article shall be as set forth in the Officers' Certificate or established
in the supplemental indenture under which the Securities of such series are
issued.
Section 1209. Subordination Provisions Inapplicable. Notwithstanding anything
contained herein to the contrary, any money that shall have been deposited by
the Company or the Guarantor with the Trustee pursuant to this Article shall not
be subject to the provisions of Article Sixteen of this Indenture respecting
subordination of the Securities; provided, however, that said provisions
respecting subordination shall continue to apply to such money, if any, that has
been returned to the Company, the Guarantor or their respective legal
representative pursuant to an order or judgment of a court or governmental
authority but only to the extent that all obligations of the Company or the
Guarantor under this Indenture, the Securities and any Coupons shall be in full
force and effect.
ARTICLE THIRTEEN
IMMUNITY OF CERTAIN PERSONS
Section 1301. No Personal Liability. No recourse shall be had for the payment of
the principal of, or the premium, if any, or interest on, any Security or Coupon
or for any claim based thereon or otherwise in respect thereof or of the
indebtedness represented thereby, or upon any obligation, covenant or agreement
of this Indenture, against any incorporator, stockholder, officer or director,
as such, past, present or future, of the Company, the Guarantor or of any
70
successor corporation, either directly or through the Company, the Guarantor or
any successor corporation, whether by virtue of any constitutional provision,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that this Indenture, the
Securities and the Guarantee endorsed thereon are solely corporate obligations,
and that no personal liability whatsoever shall attach to, or be incurred by,
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company, the Guarantor or of any successor corporation, either
directly or through the Company, the Guarantor or any successor corporation,
because of the incurring of the indebtedness hereby authorized or under or by
reason of any of the obligations, covenants, promises or agreements contained in
this Indenture or in any of the Securities or Coupons or the Guarantee endorsed
thereon, or to be implied herefrom or therefrom, and that all liability, if any,
of that character against every such incorporator, stockholder, officer and
director is, by the acceptance of the Securities and the Guarantee endorsed
thereon and as a condition of, and as part of the consideration for, the
execution of this Indenture and the issue of the Securities expressly waived and
released.
ARTICLE FOURTEEN
SUPPLEMENTAL INDENTURES
Section 1401. Without Consent of Holders. The Company (when authorized by
resolution of its Board of Directors), the Guarantor and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any one or more of or all the
following purposes:
(a) to add to the covenants and agreements of the Company or the Guarantor,
to be observed thereafter and during the period, if any, in such supplemental
indenture or indentures expressed, and to add Events of Default, in each case
for the protection or benefit of the holders of all or any series of the
Securities (and if such covenants, agreements and Events of Default are to be
for the benefit of fewer than all series of Securities, stating that such
covenants, agreements and Events of Default are expressly being included for the
benefit of such series as shall be identified therein), or to surrender any
right or power herein conferred upon the Company or the Guarantor;
(b) to delete or modify any Events of Default with respect to all or any
series of the Securities, the form and terms of which are being established
pursuant to such supplemental indenture as permitted in Section 301 (and, if any
such Event of Default is applicable to fewer than all such series of the
Securities, specifying the series to which such Event of Default is applicable),
and to specify the rights and remedies of the Trustee and the holders of such
Securities in connection therewith;
(c) to add to or change any of the provisions of this Indenture to provide
that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of or premium, if any, on
Registered Securities or of principal of or premium, if any, or any interest on
Bearer Securities or to permit Registered Securities to be exchanged for Bearer
Securities; provided that any such action shall not adversely affect the
71
interests of the holders of Securities or any Coupons of any series in any
material respect, or to permit or facilitate the issuer of Securities of any
series in uncertificated form;
(d) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only when
there is no Outstanding Security or Coupon of any series created prior to the
execution of such supplemental indenture that is entitled to the benefit of such
provision and as to which such supplemental indenture would apply;
(e) to evidence the succession of another corporation to the Company or the
Guarantor, or successive successions, and the assumption by a successor,
transferee or lessee corporation of the covenants and obligations of the Company
or the Guarantor, as applicable, contained in the Securities of one or more
series and in this Indenture or any supplemental indenture;
(f) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to one or more series of Securities and to add
to or change any of the provisions of this Indenture as shall be necessary for
or facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 1106(c);
(g) to secure the Securities pursuant to the requirements of Section 1504;
(h) to evidence any changes to Section 1105 permitted by the terms thereof;
(i) to cure any ambiguity or to correct or supplement any provision
contained herein or in any indenture supplemental hereto which may be defective
or inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provision in regard to matters or questions
arising under this Indenture which the Board of Directors of the Company and the
Guarantor may deem necessary or desirable and which shall not materially
adversely affect the interests of the holders of the Outstanding Securities or
Coupons, if any;
(j) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities any property or assets which the Guarantor may be
required to convey, transfer, assign, mortgage or pledge in accordance with the
provisions of Section 1504;
(k) to add to or change or eliminate any provision of this Indenture as
shall be necessary or desirable in accordance with any amendments to the Trust
Indenture Act, provided such action shall not adversely affect the interests of
the holders of the Securities of any series or any appurtenant Coupons in any
material respects;
(l) to prohibit the authentication and delivery of additional series of
Securities; or
(m) to establish the form and terms of the Securities of Coupons, if any,
of any series as permitted in Section 301, or to authorize the issuance of
additional Securities of a series previously authorized or to add to the
conditions, limitations or restrictions on the authorized amount, terms or
purposes of issue, authentication or delivery of the Securities of any series,
as herein set forth, or other conditions, limitations or restrictions thereafter
to be observed.
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Subject to the provisions of Section 1403, the Trustee is authorized to
join with the Company and the Guarantor in the execution of any such
supplemental indenture, to make the further agreements and stipulations which
may be therein contained and to accept the conveyance, transfer, assignment,
mortgage or pledge of any property or assets thereunder.
Any supplemental indenture authorized by the provisions of this Section
1401 may be executed by the Company, the Guarantor and the Trustee without the
consent of the holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 1402.
Section 1402. With Consent of Holders; Limitations.
(a) With the consent (evidenced as provided in Article Eight) of the
holders of a majority in aggregate principal amount of the Outstanding
Securities of each series affected by such supplemental indenture voting
separately, the Company (when authorized by a resolution of the Board of
Directors), the Guarantor and the Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any
provisions of this Indenture or of modifying in any manner the rights of the
holders of the Securities of such series to be affected; provided, however, that
no such supplemental indenture shall, without the consent of the holder of each
Outstanding Security of each such series affected thereby,
(i) extend the Stated Maturity of the principal of, or any installment
of interest on, any Security, or reduce the principal amount thereof or the
interest thereon or any premium payable upon redemption thereof, or extend
the Stated Maturity of or reduce the amount of any payment to be made with
respect to any Coupon, or change the Currency in which the principal of and
premium, if any, or interest on such Security is denominated or payable, or
reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 702, or impair the right to institute
suit for the enforcement of any payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date),
or change any obligation of the Company to pay additional interest pursuant
to Section 602 (except as contemplated by Section 605(b) and permitted by
Section 1401(e)), or limit the obligation of the Company to maintain a
paying agency outside the United States for payment on Bearer Securities as
provided in Section 603, or limit the obligation of the Company to redeem
an Affected Security as provided in Section 402(b); or
(ii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose holders is required for any
supplemental indenture, or the consent of whose holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
Defaults hereunder and their consequences provided for in this Indenture;
or
(iii) modify any of the provisions of this Section, Section 706 or
Section 608, 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
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Outstanding Security affected thereby; provided, however, that this clause
shall not be deemed to require the consent of any holder with respect to
changes in the references to "the Trustee" and concomitant changes in this
Section and Section 608, or the deletion of this proviso, in accordance
with the requirements of Sections 1106 and 1401(f); or
(iv) modify, without the written consent of the Trustee, the rights,
duties or immunities of the Trustee.
(b) A supplemental indenture that changes or eliminates any provision of
this Indenture which has expressly been included solely for the benefit of one
or more particular series of Securities and Coupons, if any, or which modifies
the rights of the holders of Securities and Coupons, if any, of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the holders of Securities and Coupons, if any, of
any other series.
(c) It shall not be necessary for the consent of the Securityholders under
this Section 402 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
(d) The Company may set a record date for purposes of determining the
identity of the holders of each series of Securities entitled to give a written
consent or waive compliance by the Company or the Guarantor as authorized or
permitted by this Section. Such record date shall not be more than 30 days prior
to the first solicitation of such consent or waiver or the date of the most
recent list of holders furnished to the Trustee prior to such solicitation
pursuant to Section 312 of the Trust Indenture Act.
(e) Promptly after the execution by the Company, the Guarantor and the
Trustee of any supplemental indenture pursuant to the provisions of this Section
402, the Company shall mail a notice, setting forth in general terms the
substance of such supplemental indenture, to the holders of Securities at their
addresses as the same shall then appear in the Register of the Company. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
Section 1403. Trustee Protected. Upon the request of the Company or the
Guarantor, accompanied by the Officers' Certificate and Opinion of Counsel
required by Section 1702 and by:
(a) a supplemental indenture duly executed on behalf of the Company and the
Guarantor;
(b) a copy of a resolution of the Board of Directors of the Company,
certified by the Secretary or an Assistant Secretary of the Company and a copy
of an Officer's Certificate of the Company, authorizing the execution of said
supplemental indenture;
(c) a copy of a resolution of the Board of Directors of the Guarantor,
certified by the Secretary or an Assistant Secretary of the Guarantor and a copy
of an Officer's Certificate of the Guarantor, authorizing the execution of said
supplemental indenture;
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(d) an Opinion of Counsel, stating that said supplemental indenture
complies with, and that the execution thereof is authorized or permitted by, the
provisions of this Indenture; and
(e) if said supplemental indenture shall be executed pursuant to Section
402, evidence (as provided in Article Eight) of the consent thereto of the
Securityholders required to consent thereto as in Section 402 provided,
the Trustee shall join with the Company and the Guarantor in the execution of
said supplemental indenture unless said supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into said supplemental indenture.
Section 1404. Effect of Execution of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article
Fourteen, this Indenture shall be deemed to be modified and amended in
accordance therewith and, except as herein otherwise expressly provided, the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company, the Guarantor and the holders
of all of the Securities or of the Securities of any series affected, as the
case may be, shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
Section 1405. Notation on or Exchange of Securities. Securities and Coupons, if
any, of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company or the Trustee shall so determine, new
Securities and Coupons, if any, so modified as to conform, in the opinion of the
Trustee and the Board of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for the Securities and Coupons, if any, then Outstanding in equal
aggregate principal amounts, and such exchange shall be made without cost to the
holders of the Securities.
Section 1406. Conformity with TIA. Every supplemental indenture executed
pursuant to the provisions of this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
Section 1407. Subordination Unimpaired.
No supplemental indenture entered into under this Article shall modify,
directly or indirectly, the provisions of Article Sixteen or the definition of
Citigroup Funding Senior Indebtedness or Citigroup Senior Indebtedness in any
manner that might alter or impair the subordination of the Securities and any
Coupons with respect to Citigroup Funding Senior Indebtedness or Citigroup
Senior Indebtedness then outstanding unless each holder of such Citigroup
Funding Senior Indebtedness or Citigroup Senior Indebtedness, as the case may
be, has consented thereto in writing.
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ARTICLE FIFTEEN
GUARANTEE
Section 1501. Unconditional Guarantee.
(a) The Guarantor does hereby fully and unconditionally guarantee (the
"Guarantee") to the holders all payments on the Securities when due, in
accordance with the provisions of this Indenture, as provided below.
(b) The Guarantor hereby waives notice of acceptance of the Guarantee and
of Default of performance by the Company, and hereby agrees that payment under
the Guarantee shall be subject to no condition other than the giving of a
written request for payment, stating the fact of Default of performance, in the
manner provided in Section 1708. This Guarantee is a guarantee of payment and
not of collection.
(c) The obligations of the Guarantor under the Guarantee shall in no way be
impaired by: (1) any extension, amendment, modification or renewal of the
Securities; (2) any waiver of any Event of Default, extension of time or failure
to enforce any of the Securities; or (3) any extension, moratorium or other
relief granted to the Company pursuant to any applicable law or statute.
(d) The Guarantor shall be obligated to make payment under the Guarantee,
for the benefit of the holders, at the same address as the Company is obligated
to make payment.
(e) Subject to clause (f) below, the Guarantor hereby agrees that:
(i) the Securities will be paid strictly in accordance with the terms
of this Indenture, regardless of the value, genuineness, validity,
regularity or enforceability of the Securities, and of any law, regulation
or order now or hereafter in effect in any jurisdiction affecting any of
such terms or the rights of the trustee with respect thereto; and
(ii) the liability of the Guarantor to the extent herein set forth
shall be absolute and unconditional, not subject to any reduction,
limitation, impairment, termination, defense, offset, counterclaim or
recoupment whatsoever (all of which are hereby expressly waived by the
Guarantor) whether by reason of any claim of any character whatsoever,
including, without limitation, any claim of waiver, release, surrender,
alteration or compromise, or by reason of any liability at any time to the
Guarantor or otherwise, whether based upon any obligations or any other
agreement or otherwise, and howsoever arising, whether out of action or
inaction or otherwise and whether resulting from Default, willful
misconduct, negligence or otherwise, and without limiting the foregoing,
irrespective of:
(A) any lack of validity or enforceability of any agreement or
instrument relating to the Securities;
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(B) any change in the time, manner or place of payment of, or in
any other term in respect of, all or any of the Securities, or any
other amendment or waiver of or consent to any departure from any
other agreement relating to any Securities;
(C) any increase in, addition to, exchange or release of, or
nonperfection of any lien on or security interest in, any collateral,
or any release or amendment or waiver of or consent to any departure
from or failure to enforce any other guarantee, for all or any of the
indebtedness;
(D) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Company in respect of the
Securities;
(E) the absence of any action on the part of the Trustee to
obtain payment of the Securities from the Company;
(F) any insolvency, bankruptcy, reorganization or dissolution, or
any similar proceeding of the Company, including, without limitation,
rejection of the Securities in such bankruptcy; or
(G) the absence of notice or any delay in any action to enforce
any Securities or to exercise any right or remedy against the
Guarantor or the Company, whether hereunder, under any Securities or
any agreement or any indulgence, compromise or extension granted.
(f) Notwithstanding anything to the contrary in this Guarantee, the
Guarantor does not waive any defense that would be available to the Company
based on a breach, default or misrepresentation by the Trustee, or failure of
any condition to the Company's obligations under this Indenture or the
illegality of any provision of this Indenture.
(g) The Guarantor further agrees that, to the extent that the Company or
the Guarantor makes a payment or payments to the Trustee, which payment or
payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to the
Company or the Guarantor or their respective estate, trustee, receiver or any
other party under any federal bankruptcy laws, state or federal law, common law
or equitable cause, then to the extent of such payment or repayment, this
Guarantee and the advances or part thereof which have been paid, reduced or
satisfied by such amount shall be reinstated and continued in full force and
effect as of the date such initial payment, reduction or satisfaction occurred.
Section 1502. Execution and Delivery of Guarantee.
(a) If an officer whose signature is on this Indenture or the Guarantee no
longer holds that office at the time the Trustee authenticates the Security on
which the Guarantee is endorsed or at any time thereafter, the Guarantee shall
be valid nevertheless.
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(b) The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of the Guarantor.
Section 1503. Waiver of Subrogation. The Guarantor shall be subrogated to all
rights of the holders of Securities and the Trustee against the Company in
respect of any amounts paid to such holders by the Guarantor pursuant to the
provisions of the Guarantee; provided, however, that the Guarantor shall not be
entitled to enforce, or to receive any payments arising out of or based upon
such right of subrogation until the principal of, interest on and additional
interest, if any, payable in respect of all Securities of the same series issued
under such Indenture shall have been paid in full.
Section 1504. Limitation on Liens.
(a) The Guarantor will not, and will not permit any Subsidiary to, incur,
issue, assume or guarantee any Indebtedness if such Indebtedness is secured by a
pledge of, lien on, or security interest in any shares of Voting Stock of any
Significant Subsidiary, whether such Voting Stock is now owned or shall
hereafter be acquired, without effectively providing that the Securities
(together with, if the Guarantor shall so determine, any other indebtedness or
obligations of the Guarantor or any Subsidiary ranking equally with such
Securities and then existing or thereafter created) shall be secured equally and
ratably with such Indebtedness. For the purposes of the foregoing, pledging,
placing a lien on or creating a security interest in any shares of Voting Stock
of a Significant Subsidiary in order to secure then Outstanding Indebtedness of
the Guarantor or any Subsidiary shall be deemed to be the incurrence, issuance,
assumption or guarantee (as the case may be) of such Indebtedness, but the
foregoing shall not apply to Indebtedness secured by a pledge of, lien on or
security interest in any shares of Voting Stock of any corporation at the time
it becomes a Significant Subsidiary, including extensions, renewals and
replacements of such Indebtedness without increase in the amount thereof.
(b) For the purposes of subsection (a) of this Section 1504, the term
"Voting Stock" shall mean capital stock the holders of which have general voting
power under ordinary circumstances to elect a majority of the board of directors
of a corporation, provided that, for the purposes hereof, capital stock which
carries only the right to vote conditioned on the happening of an event shall
not be considered voting stock whether or not such event shall have happened.
(c) For the purposes of subsection (a) of this Section 1504, the term
"Significant Subsidiary" shall mean a Subsidiary, including its Subsidiaries,
which meets any of the following conditions:
(i) The Guarantor's and its Subsidiaries' investments in and advances
to the Subsidiary exceed 10 percent of the total assets of the Guarantor
and its Subsidiaries consolidated as of the end of the most recently
completed fiscal year;
(ii) The Guarantor's and its Subsidiaries' proportionate share of the
total assets (after inter-company eliminations) of the Subsidiary exceeds
10 percent of the total assets of the Guarantor and its Subsidiaries
consolidated as of the end of the most recently completed fiscal year; or
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(iii) The Guarantor's and its Subsidiaries' equity in the income from
continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principle of the Subsidiary
exceeds 10 percent of such income of the Guarantor and its Subsidiaries
consolidated for the most recently completed fiscal year.
(d) For the purposes of making the prescribed income test in clause (iii)
of subsection (c) of this Section 1504, the following shall be applicable:
(i) When a loss has been incurred by either the Guarantor and its
Subsidiaries consolidated or the tested Subsidiary, but not both, the
equity in the income or loss of the tested Subsidiary shall be excluded
from the income of the Guarantor and its Subsidiaries consolidated for
purposes of the computation; and
(ii) If income of the Guarantor and its Subsidiaries consolidated for
the most recent fiscal year is at least 10 percent lower than the average
of the income for the last five fiscal years, such average income shall be
substituted for purposes of the computation. Any loss years shall be
omitted for purposes of computing average income.
Section 1505. Merger, Consolidation and Sale of Assets.
(a) The Guarantor will not consolidate with any other entity or accept a
merger of any other entity into the Guarantor or permit the Guarantor to be
merged into any other entity, or sell other than for cash or lease all or
substantially all its assets to another entity, or purchase all or substantially
all the assets of another entity, unless (i) either the Guarantor shall be the
continuing entity, or the successor, transferee or lessee entity (if other than
the Guarantor) shall expressly assume, by indenture supplemental hereto
satisfactory to the Trustee, executed and delivered by such entity prior to or
simultaneously with such consolidation, merger, sale or lease, the full,
irrevocable and unconditional guarantee of the payment of principal of and
interest and premium, if any, on all the Securities (and Coupons, if any) when
due, and the performance and observance of all other obligations of the Company
to the holders and the Trustee under this Indenture or under the Securities (and
Coupons, if any), all in accordance with the terms hereof and thereof; and (ii)
immediately after such consolidation, merger, sale, lease or purchase the
Guarantor or the successor, transferee or lessee entity (if other than the
Guarantor) would not be in Default in the performance of any covenant or
condition of this Indenture. A purchase by a Subsidiary of all or substantially
all of the assets of another entity shall not be deemed to be a purchase of such
assets by the Guarantor.
(b) Upon any consolidation with or merger into any other entity, or any
sale, conveyance or lease of all or substantially all of the assets of the
Guarantor in accordance with this Section 1505, the successor entity formed by
such consolidation or into or with which the Guarantor is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Guarantor under this
Indenture with the same effect as if such successor entity had been named as the
Guarantor herein, and thereafter, except in the case of a lease, the predecessor
Guarantor shall be relieved of all obligations and covenants under the
Guarantee.
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Section 1506. Assumption by Guarantor.
(a) The Guarantor may, without the consent of the holders, assume all of
the rights and obligations of the Company hereunder with respect to a series of
Securities and under the Securities of such series if, after giving effect to
such assumption, no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default, shall have occurred
and shall be continuing. Upon such an assumption, the Guarantor shall execute a
supplemental indenture evidencing its assumption of all such rights and
obligations of the Company and the Company shall be released from its
liabilities hereunder and under such Securities as obligor on the Securities of
such series.
(b) The Guarantor shall assume all of the rights and obligations of the
Company hereunder with respect to a series of Securities and under the
Securities of such series, if, upon a Default by the Company in the due and
punctual payment of the principal, sinking fund payment, if any, premium, if
any, or interest on such Securities, the Guarantor is prevented by any court
order or judicial proceeding from fulfilling its obligations under Section 1501
with respect to such series of Securities. Such assumption shall result in the
Securities of such series becoming the direct obligations of the Guarantor and
shall be effected without the consent of the holders of the Securities of any
series. Upon such an assumption, the Guarantor shall execute a supplemental
indenture evidencing its assumption of all such rights and obligations of the
Company, and the Company shall be released from its liabilities hereunder and
under such Securities as obligor on the Securities of such series.
Section 1507. Article Fifteen Applicable to Paying Agent. At any time that a
Paying Agent other than the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in this Article Fifteen
shall in such case (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this Article Fifteen
in addition to or in place of the Trustee.
Section 1508. No Suspension of Remedies. Nothing contained in this Article
Fifteen shall limit the right of the Trustee or the holders of Securities to
take any action to accelerate the maturity of the Securities pursuant to Article
Seven or to pursue any rights or remedies hereunder or under applicable law.
ARTICLE SIXTEEN
SUBORDINATION
Section 1601. Securities and Coupons Subordinated to Citigroup Funding Senior
Indebtedness.
(a) The Company covenants and agrees, and each holder of a Security or
Coupon, by his or her acceptance thereof, likewise covenants and agrees, that
the indebtedness represented by the Securities and any Coupons and the payment
of the principal of and premium, if any, and interest on each and all of the
Securities and the payment of any Coupons is hereby expressly subordinated, to
the extent and in the manner hereinafter set forth, in right of payment to the
prior payment in full of Citigroup Funding Senior Indebtedness.
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(b) In the event (x) of any insolvency or bankruptcy proceedings, or any
receivership, liquidation, reorganization or other similar proceedings, in
respect of the Company or a substantial part of its property, or of any
proceedings for liquidation, dissolution or other winding up of the Company,
whether or not involving insolvency or bankruptcy, or (y) subject to the
provisions of Section 1602, that (i) a Default shall have occurred with respect
to the payment of principal of or premium, if any, or interest on or other
monetary amounts due and payable on any Citigroup Funding Senior Indebtedness,
or (ii) there shall have occurred an Event of Default (other than a Default in
the payment of principal, premium, if any, or interest, or other monetary
amounts due and payable) in respect of any Citigroup Funding Senior
Indebtedness, as defined therein or in the instrument under which the same is
outstanding, permitting the holder or holders thereof to accelerate the maturity
thereof (with notice or lapse of time, or both), and such Event of Default shall
have continued beyond the period of grace, if any, in respect thereof, and, in
the cases of subclauses (i) and (ii) of this clause (y), such Default or Event
of Default shall not have been cured or waived or shall not have ceased to
exist, or (z) that the principal of and accrued interest on the Securities shall
have been declared due and payable pursuant to Section 702 and such declaration
shall not have been rescinded and annulled as provided in Section 702, then:
(i) the holders of all Citigroup Funding Senior Indebtedness shall
first be entitled to receive payment of the full amount due thereon, or
provision shall be made for such payment in money or money's worth, before
the holders of any of the Securities or Coupons are entitled to receive a
payment on account of the principal of or premium, if any, or interest on
the indebtedness evidenced by the Securities or of the Coupons;
(ii) any payment by, or distribution of assets of, the Company of any
kind or character, whether in cash, property or securities (other than
securities of the Company as reorganized or readjusted or securities of the
Company or any other entity provided for by a plan of reorganization or
readjustment, the payment of which is subordinate, at least to the extent
provided in this Article with respect to the Securities and Coupons, to the
payment of all Citigroup Funding Senior Indebtedness, provided that the
rights of the holders of Citigroup Funding Senior Indebtedness are not
altered by such reorganization or readjustment), to which the holders of
any of the Securities or Coupons or the Trustee would be entitled except
for the provisions of this Article shall be paid or delivered by the person
making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of
such Citigroup Funding Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Citigroup Funding Senior
Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of such Citigroup Funding Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full of all Citigroup Funding Senior Indebtedness remaining
unpaid after giving effect to any concurrent payment or distribution (or
provision therefor) to the holders of such Citigroup Funding Senior
Indebtedness before any payment or distribution is made to the holders of
the indebtedness evidenced by the Securities or of the Coupons or to the
Trustee under this Indenture; and
(iii) in the event that, notwithstanding the foregoing, any payment
by, or distribution of assets of, the Company of any kind or character,
whether in cash, property
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or securities (other than securities of the Company as reorganized or
readjusted or securities of the Company or any other corporation provided
for by a plan of reorganization or readjustment, the payment of which is
subordinate, at least to the extent provided in this Article with respect
to the Securities and Coupons, to the payment of all Citigroup Funding
Senior Indebtedness, provided that the rights of the holders of Citigroup
Funding Senior Indebtedness are not altered by such reorganization or
readjustment), shall be received by the Trustee or the holders of any of
the Securities or Coupons before all Citigroup Funding Senior Indebtedness
is paid in full, or provision made for such payment in money or money's
worth, such payment or distribution shall be paid over to the holders of
such Citigroup Funding Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any such Citigroup Funding Senior
Indebtedness may have been issued, ratably as aforesaid, for application to
the payment of all Citigroup Funding Senior Indebtedness remaining unpaid
until all such Citigroup Funding Senior Indebtedness shall have been paid
in full, after giving effect to any concurrent payment or distribution (or
provision therefor) to the holders of such Citigroup Funding Senior
Indebtedness.
Section 1602. Disputes with Holders of Certain Citigroup Funding Senior
Indebtedness. Any failure by the Company to make any payment on or perform any
other obligation under Citigroup Funding Senior Indebtedness, other than any
indebtedness incurred by the Company or assumed or guaranteed, directly or
indirectly, by the Company for money borrowed (or any deferral, renewal,
extension or refunding thereof) or any indebtedness or obligation as to which
the provisions of this Section shall have been waived by the Company in the
instrument or instruments by which the Company incurred, assumed, guaranteed or
otherwise created such indebtedness or obligation, shall not be deemed a Default
or Event of Default under Section 1601(b) for so long as (a) the Company shall
be disputing its obligation to make such payment or perform such obligation and
(b) either (A) such dispute shall not have resulted in a judgment against the
Company and shall have remained undischarged or unbonded and have remained in
force for more than the applicable appeal period or (B) in the event of such a
judgment, the Company shall in good faith be prosecuting an appeal or other
proceeding for review and upon which a stay of execution shall have been
obtained pending such appeal or review.
Section 1603. Subrogation With Respect to Citigroup Funding Senior Indebtedness.
Subject to the payment in full of all Citigroup Funding Senior Indebtedness, the
holders of the Securities and any Coupons shall be subrogated to the rights of
the holders of Citigroup Funding Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to
Citigroup Funding Senior Indebtedness, until all amounts owing on the Securities
and any Coupons shall be paid in full, and as between the Company, its creditors
other than holders of such Citigroup Funding Senior Indebtedness and the
holders, no such payment or distribution made to the holders of Citigroup
Funding Senior Indebtedness by virtue of this Article that otherwise would have
been made to the holders shall be deemed to be a payment by the Company on
account of such Citigroup Funding Senior Indebtedness, it being understood that
the provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the holders, on the one hand, and the holders of
Citigroup Funding Senior Indebtedness, on the other hand.
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Section 1604. Obligation of the Company Unconditional.
(a) Nothing contained in this Article or elsewhere in this Indenture or in
the Securities or any Coupons is intended to or shall impair, as between the
Company, its creditors other than the holders of Citigroup Funding Senior
Indebtedness and the holders, the obligation of the Company, which is absolute
and unconditional, to pay to the holders the principal of and premium, if any,
and interest on the Securities and the amounts owed pursuant to any Coupons 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 creditors of the
Company other than the holders of Citigroup Funding 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 of the holders
of Citigroup Funding Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
(b) Upon payment or distribution of assets of the Company referred to in
this Article, the Trustee and the holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which any such
dissolution, winding up, liquidation or reorganization proceeding affecting the
affairs of the Company is pending or upon a certificate of the trustee in
bankruptcy, receiver, assignee for the benefit of creditors, liquidating trustee
or agent or other person making any payment or distribution, delivered to the
Trustee or to the holders, for the purpose of ascertaining the persons entitled
to participate in such payment or distribution, the holders of the Citigroup
Funding Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount paid or distributed thereon and all other
facts pertinent thereto or to this Article.
Section 1605. Payments by the Company on Securities and Coupons Permitted.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities or Coupons shall affect the obligation of the Company to make, or
prevent the Company from making, payment of the principal of or premium, if any,
or interest on the Securities and of any Coupons in accordance with the
provisions hereof and thereof, except as otherwise provided in this Article.
Section 1606. Guarantee Subordinated to Citigroup Senior Indebtedness.
(a) The Guarantor covenants and agrees, and each holder of a Security or
Coupon, by his or her acceptance thereof, likewise covenants and agrees, that
the indebtedness represented by the Securities and any Coupons and the payment
of the principal of and premium, if any, and interest on each and all of the
Securities and the payment of any Coupons is hereby expressly subordinated, to
the extent and in the manner hereinafter set forth, in right of payment to the
prior payment in full of Citigroup Senior Indebtedness.
(b) In the event (x) of any insolvency or bankruptcy proceedings, or any
receivership, liquidation, reorganization or other similar proceedings, in
respect of the Guarantor or a substantial part of its property, or of any
proceedings for liquidation, dissolution or other winding up of the Guarantor,
whether or not involving insolvency or bankruptcy, or (y) subject to the
provisions of Section 1607, that (i) a Default shall have occurred with respect
to the payment of principal of or premium, if any, or interest on or other
monetary amounts due and payable on any
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Citigroup Senior Indebtedness, or (ii) there shall have occurred an Event of
Default (other than a Default in the payment of principal, premium, if any, or
interest, or other monetary amounts due and payable) in respect of any Citigroup
Senior Indebtedness, as defined therein or in the instrument under which the
same is outstanding, permitting the holder or holders thereof to accelerate the
maturity thereof (with notice or lapse of time, or both), and such Event of
Default shall have continued beyond the period of grace, if any, in respect
thereof, and, in the cases of subclauses (i) and (ii) of this clause (y), such
Default or Event of Default shall not have been cured or waived or shall not
have ceased to exist, or (z) that the principal of and accrued interest on the
Securities shall have been declared due and payable pursuant to Section 702 and
such declaration shall not have been rescinded and annulled as provided in
Section 702, then:
(i) the holders of all Citigroup Senior Indebtedness shall first be
entitled to receive payment of the full amount due thereon, or provision
shall be made for such payment in money or money's worth, before the
holders of any of the Securities or Coupons are entitled to receive a
payment on account of the principal of or premium, if any, or interest on
the indebtedness evidenced by the Securities or of the Coupons;
(ii) any payment by, or distribution of assets of, the Guarantor of
any kind or character, whether in cash, property or securities (other than
securities of the Guarantor as reorganized or readjusted or securities of
the Guarantor or any other entity provided for by a plan of reorganization
or readjustment, the payment of which is subordinate, at least to the
extent provided in this Article with respect to the Securities and Coupons,
to the payment of all Citigroup Senior Indebtedness, provided that the
rights of the holders of Citigroup Senior Indebtedness are not altered by
such reorganization or readjustment), to which the holders of any of the
Securities or Coupons or the Trustee would be entitled except for the
provisions of this Article shall be paid or delivered by the person making
such payment or distribution, whether a trustee in bankruptcy, a receiver
or liquidating trustee or otherwise, directly to the holders of such
Citigroup Senior Indebtedness or their representative or representatives or
to the trustee or trustees under any indenture under which any instruments
evidencing any of such Citigroup Senior Indebtedness may have been issued,
ratably according to the aggregate amounts remaining unpaid on account of
such Citigroup Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Citigroup Senior
Indebtedness remaining unpaid after giving effect to any concurrent payment
or distribution (or provision therefor) to the holders of such Citigroup
Senior Indebtedness before any payment or distribution is made to the
holders of the indebtedness evidenced by the Securities or of the Coupons
or to the Trustee under this Indenture; and
(iii) in the event that, notwithstanding the foregoing, any payment
by, or distribution of assets of, the Guarantor of any kind or character,
whether in cash, property or securities (other than securities of the
Guarantor as reorganized or readjusted or securities of the Guarantor or
any other corporation provided for by a plan of reorganization or
readjustment, the payment of which is subordinate, at least to the extent
provided in this Article with respect to the Securities and Coupons, to the
payment of all Citigroup Senior Indebtedness, provided that the rights of
the holders of Citigroup Senior Indebtedness are not altered by such
reorganization or readjustment), shall be received by the Trustee or the
holders of any of the Securities or Coupons before all Citigroup Senior
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Indebtedness is paid in full, or provision made for such payment in money
or money's worth, such payment or distribution shall be paid over to the
holders of such Citigroup Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any such Citigroup Senior Indebtedness may
have been issued, ratably as aforesaid, for application to the payment of
all Citigroup Senior Indebtedness remaining unpaid until all such Citigroup
Senior Indebtedness shall have been paid in full, after giving effect to
any concurrent payment or distribution (or provision therefor) to the
holders of such Citigroup Senior Indebtedness.
Section 1607. Disputes with Holders of Certain Citigroup Senior Indebtedness.
Any failure by the Guarantor to make any payment on or perform any other
obligation under Citigroup Senior Indebtedness, other than any indebtedness
incurred by the Guarantor or assumed or guaranteed, directly or indirectly, by
the Guarantor for money borrowed (or any deferral, renewal, extension or
refunding thereof) or any indebtedness or obligation as to which the provisions
of this Section shall have been waived by the Guarantor in the instrument or
instruments by which the Guarantor incurred, assumed, guaranteed or otherwise
created such indebtedness or obligation, shall not be deemed a Default or Event
of Default under Section 1606(b) for so long as (a) the Guarantor shall be
disputing its obligation to make such payment or perform such obligation and (b)
either (A) such dispute shall not have resulted in a judgment against the
Guarantor and shall have remained undischarged or unbonded and have remained in
force for more than the applicable appeal period or (B) in the event of such a
judgment, the Guarantor shall in good faith be prosecuting an appeal or other
proceeding for review and upon which a stay of execution shall have been
obtained pending such appeal or review.
Section 1608. Subrogation With Respect to Citigroup Senior Indebtedness. Subject
to the payment in full of all Citigroup Senior Indebtedness, the holders of the
Securities and any Coupons shall be subrogated to the rights of the holders of
Citigroup Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Guarantor applicable to Citigroup Senior
Indebtedness, until all amounts owing on the Securities and any Coupons shall be
paid in full, and as between the Guarantor, its creditors other than holders of
such Citigroup Senior Indebtedness and the holders, no such payment or
distribution made to the holders of Citigroup Senior Indebtedness by virtue of
this Article that otherwise would have been made to the holders shall be deemed
to be a payment by the Guarantor on account of such Citigroup Senior
Indebtedness, it being understood that the provisions of this Article are and
are intended solely for the purpose of defining the relative rights of the
holders, on the one hand, and the holders of Citigroup Senior Indebtedness, on
the other hand.
Section 1609. Obligation of the Guarantor Unconditional.
(a) Nothing contained in this Article or elsewhere in this Indenture or in
the Securities or any Coupons is intended to or shall impair, as between the
Guarantor, its creditors other than the holders of Citigroup Senior Indebtedness
and the holders, the obligation of the Guarantor, which is absolute and
unconditional, to pay to the holders the principal of and premium, if any, and
interest on the Securities and the amounts owed pursuant to any Coupons 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 creditors of the
Guarantor other than the holders of Citigroup Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or any
85
holder from exercising all remedies otherwise permitted by applicable law upon
Default under this Indenture, subject to the rights, if any, under this Article
of the holders of Citigroup Senior Indebtedness in respect of cash, property or
securities of the Guarantor received upon the exercise of any such remedy.
(b) Upon payment or distribution of assets of the Guarantor referred to in
this Article, the Trustee and the holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which any such
dissolution, winding up, liquidation or reorganization proceeding affecting the
affairs of the Guarantor is pending or upon a certificate of the trustee in
bankruptcy, receiver, assignee for the benefit of creditors, liquidating trustee
or agent or other person making any payment or distribution, delivered to the
Trustee or to the holders, for the purpose of ascertaining the persons entitled
to participate in such payment or distribution, the holders of Citigroup Senior
Indebtedness and other indebtedness of the Guarantor, the amount thereof or
payable thereon, the amount paid or distributed thereon and all other facts
pertinent thereto or to this Article.
Section 1610. Payments by the Guarantor on Securities and Coupons Permitted.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities or Coupons shall affect the obligation of the Guarantor to make, or
prevent the Guarantor from making, payment of the principal of or premium, if
any, or interest on the Securities and of any Coupons in accordance with the
provisions hereof and thereof, except as otherwise provided in this Article.
Section 1611. Effectuation of Subordination by Trustee. Each holder of
Securities or Coupons, by his acceptance thereof, authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article and appoints the Trustee
his attorney-in-fact for any and all such purposes.
Section 1612. Knowledge of Trustee. Notwithstanding the provisions of this
Article or any other provisions of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment of moneys to or by the Trustee, or the taking of any other
action by the Trustee, unless and until a Responsible Officer of the Trustee
shall have received written notice thereof mailed or delivered to the Trustee at
its Corporate Trust Office from the Company or the Guarantor, as the case may
be, any holder, any Paying Agent or the holder or representative of any class of
Citigroup Funding Senior Indebtedness or Citigroup Senior Indebtedness, as the
case may be; provided that if at least three Business Days prior to the date
upon which by the terms hereof any such moneys may become payable for any
purpose (including, without limitation, the payment of the principal of or
premium, if any, or interest on any Security or of any Coupon) the Trustee shall
not have received with respect to such moneys the notice provided for in this
Section, then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such moneys and to apply
the same to the purpose for which they were received and shall not be affected
by any notice to the contrary that may be received by it within three Business
Days prior to or on or after such date.
Section 1613. Trustee May Hold Senior Indebtedness. The Trustee shall be
entitled to all the rights set forth in this Article with respect to any Senior
Indebtedness at the time held by it, to the same extent as any other holder of
Senior Indebtedness.
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Section 1614. Rights of Holders of Senior Indebtedness Not Impaired.
(a) No right of any present or future holder of any Senior Indebtedness to
enforce the subordination herein shall at any time or in any way be prejudiced
or impaired by any act or failure to act on the part of the Company or the
Guarantor or by any noncompliance by the Company or the Guarantor with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
(b) With respect to the holders of Senior Indebtedness, (i) the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Indenture, (ii) the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this
Indenture, (iii) no implied covenants or obligations shall be read into this
Indenture against the Trustee and (iv) the Trustee shall not be deemed to be a
fiduciary as to such holders.
Section 1615. Article Applicable to Paying Agents. In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in this Article shall in
such case (unless the context shall require otherwise) be construed as extending
to and including such Paying Agent within its meaning as fully for all intents
and purposes as if such Paying Agent were named in this Article in addition to
or in place of the Trustee, provided, however, that Sections 1607, 1608, 1612
and 1613 shall not apply to the Company or the Guarantor, as applicable, if
either acts as its own Paying Agent.
Section 1616. Trustee; Compensation Not Prejudiced. Nothing in this Article
shall apply to claims of, or payments to, the Trustee pursuant to Section 1101.
ARTICLE SEVENTEEN
MISCELLANEOUS PROVISIONS
Section 1701. Consolidation, Merger, Sale or Lease.
(a) Subject to the provisions of Sections 605 and 1505, nothing contained
in this Indenture or in the Securities shall be deemed to prevent the
consolidation or merger of the Company or the Guarantor with or into any entity,
or the merger into the Company or the Guarantor of any entity, or the sale or
lease by the Company or the Guarantor of their respective property and assets
as, or substantially as, an entirety, or otherwise.
(b) Upon any consolidation or merger, or any sale other than for cash or
lease of all or substantially all of the assets of the Company or the Guarantor
in accordance with the provisions of Sections 605 and 1505, as applicable, the
entity formed by such consolidation or into which the Company or the Guarantor
shall have been merged or to which such sale or lease shall have been made shall
succeed to and be substituted for the Company or the Guarantor, as applicable,
with the same effect as if it had been named herein as a party hereto, and
thereafter from time to time such entity may exercise each and every right and
power of the Company or the Guarantor, as applicable, under this Indenture, in
the name of the Company or the Guarantor, or in its own name; and any act or
proceeding by any provision of this Indenture required or permitted to be done
by the Board of Directors or any officer of the Company or the Guarantor
87
may be done with like force and effect by the like board or officer of any
entity that shall at the time be the successor of the Company or the Guarantor
hereunder. In the event of any such sale or conveyance, but not any such lease,
the Company or the Guarantor (or any successor entity which shall theretofore
have become such in the manner described in Sections 605 and 1505, as
applicable) shall be discharged from all obligations and covenants under this
Indenture and the Securities and may thereupon be dissolved and liquidated.
Section 1702. Certificates and Opinions as to Conditions Precedent.
(a) Upon any request or application by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the Company or the
Guarantor shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent have been complied
with, except that in the case of any such application or demand as to which the
furnishing of such document is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than the certificates provided pursuant to
Section 6.06 of this Indenture) shall include (i) a statement that the Person
making giving such certificate or opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (iii) a statement that, in the view or opinion
of such Person, he or she has made such examination or investigation as is
necessary to enable such Person to express an informed view or 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 view or opinion of such Person, such
condition or covenant has been complied with.
(c) Any certificate, statement or opinion of an officer of the Company or
the Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his or
certificate, statement or opinion is based are erroneous. Any certificate,
statement or opinion of counsel may be based, insofar as it relates to factual
matters, upon a certificate, statement or opinion of, or representations by, an
officer or officers of the Company or the Guarantor stating that the information
with respect to such factual matters is in the possession of the Company or the
Guarantor, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate, statement or opinion or representations with
respect to such matters are erroneous.
(d) Any certificate, statement or opinion of an officer of the Company, the
Guarantor or of counsel to the Company or the Guarantor may be based, insofar as
it relates to accounting matters, upon a certificate or opinion of, or
representations by, an accountant or firm of accountants, unless such officer or
counsel, as the case may be, knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to the
88
accounting matters upon which his or her certificate, statement or opinion may
be based are erroneous. Any certificate or opinion of any firm of independent
registered public accountants filed with the Trustee shall contain a statement
that such firm is independent.
(e) In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(f) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1703. Trust Indenture Act Controls. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or another provision included in this Indenture which is required to
be included in this Indenture by any of the provisions of Sections 310 to 318,
inclusive, of the Trust Indenture Act, such imposed duties or incorporated
provision shall control.
Section 1704. What Constitutes Action by Board of Directors. Whenever action is
required by this Indenture by the Board of Directors of the Company or the
Guarantor and there is at the time constituted a committee of the Board of
Directors duly authorized to take such action, or a committee of officers or
other representatives of the Company or the Guarantor so authorized by the Board
of Directors, such action by such a committee shall be deemed to be the action
of the Board of Directors and shall be sufficient for all purposes of this
Indenture where action by the Board of Directors is specified.
Section 1705. Notices to the Company, Guarantor and Trustee. Any notice or
demand authorized by this Indenture to be made upon, given or furnished to, or
filed with, the Company, the Guarantor or the Trustee shall be sufficiently
made, given, furnished or filed for all purposes if it shall be mailed,
delivered or telefaxed to:
(a) the Company, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
Assistant Treasurer, fax: (▇▇▇) ▇▇▇-▇▇▇▇ or at such other address or facsimile
number as may have been furnished in writing to the Trustee by the Company.
(b) the Guarantor, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
General Counsel - Capital Markets, Fax: (▇▇▇) ▇▇▇-▇▇▇▇ or at such other address
or facsimile number as may have been furnished in writing to the Trustee by the
Guarantor.
(c) the Trustee, at the Corporate Trust Office of the Trustee.
Any such notice, demand or other document shall be in the English language.
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Section 1706. Notices to Holders; Waiver. Any notice required or permitted to be
given to Securityholders shall be sufficiently given (unless otherwise herein
expressly provided),
(a) if to Registered Holders, if given in writing by first class mail,
postage prepaid, to such holders at their addresses as the same shall appear on
the Register of the Company, and
(b) if to holders of Bearer Securities, if published on two separate
Business Days in an Authorized Newspaper or Newspapers in such Place or Places
of Payment specified pursuant to Section 301, the first such publication to be
not earlier than the earliest date and not later than two Business Days prior to
the latest date prescribed for the giving of such notice;
provided, however, that, in any case, any notice to holders of Floating Rate
Securities regarding the determination of a periodic rate of interest, if such
notice is required pursuant to Section 301, shall be sufficiently given if given
in the manner specified pursuant to Section 301.
(c) In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, then such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose hereunder.
(d) In the event of suspension of publication of any Authorized Newspapers
or by reason of any other cause it shall be impractical to give notice by
publication, then such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
(e) Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance on such waiver. In any case where notice to holders is given by mail;
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular holder shall affect the sufficiency of such notice with
respect to other holders, and any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given. In any case
where notice to holders is given by publication, any defect in any notice so
published as to any particular holder shall not affect the sufficiency of such
notice with respect to other holders, and any notice that is published in the
manner herein provided shall be conclusively presumed to have been duly given.
Section 1707. Legal Holiday. Unless otherwise specified pursuant to Section 301,
in any case where any Interest Payment Date, Redemption Date or Maturity of any
Security of any series shall not be a Business Day at any Place of Payment for
the Securities of that series, then payment of principal and premium, if any, or
interest need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on such Interest Payment Date, Redemption Date or Maturity
and no interest shall accrue on such payment for the period from and after such
Interest Payment Date, Redemption Date or Maturity, as the case may be, to such
Business Day if such payment is made or duly provided for on such Business Day.
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Section 1708. Effects of Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
Section 1709. Successors and Assigns. All covenants and agreements in this
Indenture by the parties hereto shall bind their respective successors and
assigns and inure to the benefit of their permitted successors and assigns,
whether so expressed or not.
Section 1710. Separability Clause. In case any provision in this Indenture or in
the Securities or Coupons shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1711. Benefits of Indenture. Nothing in this Indenture expressed and
nothing that may be implied from any of the provisions hereof is intended, or
shall be construed, to confer upon, or to give to, any Person or corporation
other than the parties hereto and their successors and the holders of the
Securities and the holders of Senior Indebtedness any benefit or any right,
remedy or claim under or by reason of this Indenture or any covenant, condition,
stipulation, promise or agreement hereof, and all covenants, conditions,
stipulations, promises and agreements in this Indenture contained shall be for
the sole and exclusive benefit of the parties hereto and their successors and of
the holders of the Securities.
Section 1712. Counterparts Originals. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 1713. Governing Law. This Indenture, the Securities and the Coupons
shall be deemed to be contracts made under the law of the State of New York, and
for all purposes shall be governed by and construed in accordance with the law
of said State.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
CITIGROUP FUNDING INC.,
as Issuer
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
and Assistant Treasurer
CITIGROUP INC., as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
By: /s/ Yana Kalachikova
-----------------------------------
Name: Yana Kalachikova
Title: Associate