EXHIBIT 4(a)
_______________________________________________________________________________
GENERAL ELECTRIC CAPITAL CORPORATION
THIRD AMENDED AND RESTATED
STANDARD GLOBAL MULTIPLE-SERIES INDENTURE PROVISIONS
_______________________________________________________________________________
Dated as of February 27, 1997
CROSS REFERENCE SHEET/1/
between
the provisions of Sections 310 through 318(a) of the Trust Indenture Act of
1939, as amended, and the Third Amended and Restated General Electric Capital
Corporation Standard Global Multiple-Series Indenture Provisions:
Section of Act Section of the
------------------------------------------------------ Third Amended and Restated
Standard Global
Multiple-Series
Indenture Provisions
----------------------------------
310 (a)(1), (2) and (5)............................... 7.09
310 (a)(3) and (4).................................... Not applicable
310 (b)............................................... 7.08 and 7.10
310 (c)............................................... Not applicable
311 (a) and (b)....................................... *
311 (c)............................................... Not applicable
312 (a)............................................... 5.01
312 (b) and (c)....................................... *
313 (a)............................................... 5.03
313 (b) (1)........................................... Not applicable
313 (b) (2)........................................... *
313 (c)............................................... *
313 (d)............................................... *
314 (a)............................................... 5.02
314 (b)............................................... Not applicable
314 (c) (1) and (2)................................... 14.05
314 (c) (3)........................................... Not applicable
314 (d)............................................... Not applicable
314 (e)............................................... 14.05
314 (f)............................................... Not applicable
315 (a), (c) and (d).................................. 7.01
315 (b)............................................... 6.08
315 (e)............................................... 6.09
316 (a) (1)........................................... 6.01 and 6.07
316 (a) (2)........................................... Omitted
316 (a) last sentence................................. 8.04
316 (b)............................................... 6.04
316 (e) *
317 (a)............................................... 6.02
317 (b)............................................... 4.04(a)
318 (a)............................................... 14.08
/1/ This cross reference sheet is not part of the Third Amended and Restated
Standard Global Multiple-Series Indenture Provisions.
*Automatically included under Section 318(c) of the Trust Indenture Act
of 1939, as amended.
TABLE OF CONTENTS/2/
Page
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions................................... 1
ARTICLE TWO
DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section 2.01. Forms......................................... 8
Section 2.02. Amount Unlimited; Issuable in
Series and Tranches........................... 9
Section 2.03. Authentication................................ 12
Section 2.04. Date and Denomination of
Securities.................................... 14
Section 2.05. Execution of Securities....................... 16
Section 2.06. Exchange and Registration of
Transfer of Securities........................ 16
Section 2.07. Mutilated, Destroyed, Lost or
Stolen Securities............................. 21
Section 2.08. Temporary Securities.......................... 22
Section 2.09. Cancellation of Securities Paid,
etc........................................... 23
Section 2.10. Computation of Interest....................... 24
ARTICLE THREE
REDEMPTION OF SECURITIES; SINKING FUNDS; REPAYMENT AT THE
OPTION OF THE HOLDER
Section 3.01. Applicability of Article...................... 24
Section 3.02. Notice of Redemption; Selection of
Securities.................................... 24
Section 3.03. Payment of Securities Called for
Redemption.................................... 26
_________________
/2/ This table of contents shall not, for any purpose, be deemed to be part of
the Third Amended and Restated Standard Global Multiple-Series Indenture
Provisions.
Page
----
Section 3.04. Satisfaction of Mandatory Sinking
Fund Payments with Securities................. 27
Section 3.05. Redemption of Securities for
Sinking Fund.................................. 27
Section 3.06. Repayment at the Option of the
Holder........................................ 30
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal, Premium and
Interest...................................... 30
Section 4.02. Offices for Notices and Payments,
etc........................................... 31
Section 4.03. Appointments to Fill Vacancies in
Trustee's Office.............................. 33
Section 4.04. Provision as to Paying Agent.................. 33
Section 4.05. Statement as to Compliance.................... 34
ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 5.01. Securityholder Lists.......................... 35
Section 5.02. Reports by the Company........................ 35
Section 5.03. Reports by the Trustee........................ 35
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDER ON EVENT OF DEFAULT
Section 6.01. Events of Default............................. 36
Section 6.02. Payment of Securities on Default;
Suit Therefor................................. 40
Section 6.03. Application of Moneys Collected by
Trustee....................................... 42
Section 6.04. Proceedings by Securityholders................ 43
Section 6.05. Proceedings by Trustee........................ 44
Section 6.06. Remedies Cumulative and
Continuing.................................... 44
Section 6.07. Direction of Proceedings and ▇▇▇▇▇▇
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of Defaults by Securityholders................ 45
Section 6.08. Notice of Defaults............................ 46
Section 6.09. Undertaking to Pay Costs...................... 46
ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01. Duties and Responsibilities of
Trustee....................................... 47
Section 7.02. Reliance on Documents, Opinions,
etc........................................... 49
Section 7.03. No Responsibility for Recitals,
etc........................................... 50
Section 7.04. Ownership of Securities....................... 51
Section 7.05. Moneys to be Held in Trust.................... 51
Section 7.06. Compensation and Expenses of
Trustee....................................... 51
Section 7.07. Officers' Certificate as Evidence............. 52
Section 7.08. Indentures Not Creating Potential
Conflicting Interests for the Trustee......... 52
Section 7.09. Eligibility of Trustee........................ 52
Section 7.10. Resignation or Removal of Trustee............. 53
Section 7.11. Acceptance by Successor Trustee............... 55
Section 7.12. Succession by ▇▇▇▇▇▇, etc..................... 56
Section 7.13. Appointment of Authenticating
Agent......................................... 57
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01. Action by Securityholders..................... 59
Section 8.02. Proof of Execution by
Securityholders............................... 59
Section 8.03. Who are Deemed Absolute Owners................ 61
Section 8.04. Company-Owned Securities
Disregarded................................... 61
Section 8.05. Revocation of Consents; Future
Holders Bound................................. 62
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
Section 9.01. Purposes of Meetings.......................... 62
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Page
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Section 9.02. Call of Meeting by Trustee.................... 63
Section 9.03. Call of Meeting by Company or
Securityholders............................... 63
Section 9.04. Qualifications for Voting..................... 64
Section 9.05. Quorum; Adjourned Meetings.................... 64
Section 9.06. Regulations................................... 65
Section 9.07. Voting........................................ 66
Section 9.08. No Delay of Rights by Meeting................. 67
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures without
Consent of Securityholders................... 67
Section 10.02. Supplemental Indentures with
Consent of Securityholders................... 69
Section 10.03. Compliance with Trust Indenture
Act; Effect of Supplemental Indentures....... 70
Section 10.04. Notation on Securities....................... 70
Section 10.05. Evidence of Compliance of
Supplemental Indenture to be Furnished
Trustee...................................... 71
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 11.01. Company May Not Consolidate, etc.,...........
Except Under Certain Conditions.............. 71
Section 11.02. Successor Corporation to be
Substituted.................................. 72
Section 11.03. Documents to be Given Trustee................ 72
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE
Section 12.01. Discharge of Indenture....................... 73
Section 12.02. Deposited Moneys to be Held in
Trust by Trustee............................. 74
Section 12.03. Paying Agent to Repay Moneys Held............ 74
Section 12.04. Return of Unclaimed Moneys................... 74
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Page
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ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 13.01. Indenture and Securities Solely
Corporate Obligations........................ 74
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.01. Provisions Binding on Company's
Successors................................... 75
Section 14.02. Official Acts by Successor
Corporation.................................. 75
Section 14.03. Addresses for Notices, etc................... 75
Section 14.04. New York Contract............................ 76
Section 14.05. Evidence of Compliance with
Conditions Precedent......................... 76
Section 14.06. Legal Holidays............................... 76
Section 14.07. Securities in a Specified Currency
Other Than Dollars........................... 77
Section 14.08. Trust Indenture Act to Control............... 78
Section 14.09. Table of Contents, Headings, etc............. 78
Section 14.10. Execution in Counterparts.................... 78
Section 14.11. Separability................................. 78
v
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. The terms defined in this Section 1.01
-----------
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Third Amended and Restated Indenture shall
have the respective meanings specified in this Section 1.01. All other terms
used in this Third Amended and Restated Indenture which are defined in the Trust
Indenture Act of 1939, as amended, or which are by reference therein defined in
the Securities Act of 1933, as amended (except as herein otherwise expressly
provided or unless the context otherwise requires) shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act as
in force at the date of this Third Amended and Restated Indenture as originally
executed. The words "herein", "hereof" and "hereunder", and other words of
similar import refer to this Third Amended and Restated Indenture as a whole and
not to any particular Article, Section or other subdivision.
Authenticating Agent:
--------------------
The term "Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 7.13 to act on behalf of the Trustee to authenticate
Securities.
Authorized Newspaper:
--------------------
The term "Authorized Newspaper" shall mean a newspaper (which, in the
case of The City of New York, will, if practicable, be The Wall Street Journal
-----------------------
(Eastern edition), in the case of the United Kingdom, will, if practicable, be
The Financial Times (London edition) and, in the case of Luxembourg, will, if
-------------------
practicable, be The Luxemburger Wort) published in an official language of the
--------------------
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York, the United Kingdom or in Luxembourg, as applicable. If it shall be
impractical to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof which is
made or given by the Trustee after consulting with the Company shall constitute
a sufficient publication of such notice.
1
Board of Directors:
------------------
The term "Board of Directors" shall mean the Board of Directors of the
Company or any Committee of such Board to which the relevant powers of such
Board have been lawfully delegated.
Business Day:
------------
The term "Business Day" shall mean, unless otherwise specified with
respect to a particular Tranche of Notes, any day other than a Saturday or
Sunday or any other day on which banking institutions are generally authorized
or obligated by law or regulation to close in The City of New York or (i) with
respect to any floating rate notes where interest is determined with respect to
LIBOR or with respect to any Series B or C Notes, in London, England, (ii) with
respect to Notes denominated in a Specified Currency other than U.S. dollars,
Australian dollars or European Currency Units ("ECUs"), in the principal
financial center of the country of the Specified Currency, (iii) with respect to
Notes denominated in Australian dollars, in Sydney or (iv) with respect to Notes
denominated in ECUs, a day that is a non-ECU clearing day as determined by the
ECU Banking Association in Paris.
Company:
-------
The term "Company" shall mean General Electric Capital Corporation, a
New York corporation, until any successor corporation shall have become such
pursuant to the provisions of Article Eleven, and thereafter "Company" shall
mean such successor, except as otherwise provided in Section 11.02.
Coupon:
------
The term "Coupon" shall mean any interest coupon appertaining to a
Security.
currency:
--------
The term "currency" shall mean Dollars or any Specified Currency.
2
Depositary:
----------
The term "Depositary" shall mean, with respect to the Securities of
any series or Tranche issuable or issued in the form of one or more Registered
Global Securities, the Person designated as Depositary by the Company pursuant
to Section 2.02 until a successor Depositary shall have become such pursuant to
the applicable provisions of this Third Amended and Restated 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 or
Tranche shall mean the Depositary with respect to such Registered Global
Security or Securities.
Dollar:
------
The term "Dollar" shall mean the coin or currency of the United States
of America as at the time of payment is legal tender for the payment of public
and private debts.
Event of Default:
----------------
The term "Event of Default" shall have the meaning specified in
Section 6.01.
Global Series Note:
------------------
The term "Global Series Note" shall mean any Outstanding Global
Medium-Term Note, Series A (a "Global Series A Note"), Global Medium-Term Note,
Series B (a "Global Series B Note"), Global Medium-Term Note, Series C (a
"Global Series C Note"), and any and all such other series of Global Medium-Term
Notes as may hereafter be established by or pursuant to a supplemental indenture
or a resolution of the Board of Directors. The Global Series Notes may be
issued in one or more Tranches, pursuant to the provisions of Section 2.02.
interest:
--------
The term "interest", when used with respect to a non-interest bearing
Security, means interest payable after the principal thereof has become due and
payable, whether at maturity, by declaration of acceleration, by call for
redemption, pursuant to a sinking fund or otherwise.
Officers' Certificate:
---------------------
3
The term "Officers' Certificate" shall mean a certificate signed by
the President, the Chairman or any Vice Chairman of the Board or any Vice
President and by the Senior Vice President-Corporate Treasury and Global Funding
Operation or any Assistant Treasurer, the Controller or the Secretary or any
Assistant Secretary of the Company and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act of 1939 and
include the statements provided for in Section 14.05 if and to the extent
required by the provisions of such Section.
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 may
be other counsel. Each such opinion shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 14.05
if and to the extent required by the provisions of such Section.
Original Issue Discount Security:
--------------------------------
The term "Original Issue Discount Security" shall mean any Security
which at any time provides for an amount less than the principal amount thereof
to be due and payable upon redemption or a declaration of acceleration of the
maturity thereof pursuant to Section 6.01.
Overdue Rate:
------------
The term "Overdue Rate" with respect to each Tranche of Securities
shall mean the rate designated as such in or pursuant to the resolution of the
Board of Directors or the supplemental indenture, as the case may be, relating
to such Tranche as contemplated by Section 2.02.
Person:
------
The term "Person" shall mean any individual, corporation, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
4
Principal Office of the Trustee:
-------------------------------
The term "principal office of the Trustee", or other similar term,
shall mean the principal office of the Trustee at which any particular time its
corporate trust business shall be administered.
Registered Global Security:
--------------------------
The term "Registered Global Security" shall mean a Security evidencing
all or a part of a Tranche of Securities, issued to the Depositary for such
Tranche in accordance with Section 2.03 and bearing the legend prescribed in
Section 2.03.
Registered Security:
-------------------
The term "Registered Security" shall mean any Security registered on
the Security register of the Company.
Responsible Officer:
-------------------
The term "Responsible Officer", when used with respect to the Trustee,
shall mean the Chairman or any Vice Chairman of the Board of Directors, the
Chairman or any Vice Chairman of the Executive Committee of the Board of
Directors, the President, any Vice President, any Assistant Vice President, the
Cashier, any Assistant Cashier, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, any Trust Officer, any Assistant Trust
Officer, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
Security or Securities; Outstanding:
-----------------------------------
The terms "Security" or "Securities" shall mean any Security or
Securities, as the case may be, authenticated and delivered under this Third
Amended and Restated Indenture.
The term "Outstanding", when used with reference to Securities, shall,
subject to the provisions of Section 8.04, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Third Amended
and Restated Indenture, except:
5
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Company) or shall
have been set aside and segregated in trust by the Company (if the Company
shall act as its own paying agent), provided that if such Securities are to
be redeemed prior to the maturity thereof, notice of such redemption shall
have been mailed as in Article Three provided, or provision satisfactory to
the Trustee shall have been made for mailing such notice; and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered, or which shall have
been paid, pursuant to the terms of Section 2.07, unless proof satisfactory
to the Trustee is presented that any such Securities are held by Persons in
whose hands any of such Securities is a valid, binding and legal obligation
of the Company.
In determining whether the holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 6.01.
Security register:
-----------------
The term "Security register" shall have the meaning specified in
Section 2.06.
Security registrar:
------------------
The term "Security registrar" shall have the meaning specified in
Section 2.06.
6
Securityholder:
--------------
The term "Securityholder", "holder of Securities", or other similar
terms, shall mean, (a) with respect to any Registered Security, the Person in
whose name at the time such Registered Security is registered on the books of
the Company kept for that purpose in accordance with the terms hereof or (b)
with respect to any Unregistered Security, the bearer thereof.
Specified Currency:
------------------
The term "Specified Currency" shall mean the currency in which a
Security is denominated, which may include Dollars, any foreign currency or any
composite of two or more currencies.
Subsidiary; Finance Subsidiary:
------------------------------
The term "Subsidiary" shall mean (i) any corporation of which the
Company directly or indirectly owns or controls at that time at least a majority
of the outstanding stock having under ordinary circumstances (not dependent upon
the happening of a contingency) voting power to elect a majority of the board of
directors of such corporation or (ii) any other Person (other than a
corporation) in which the Company directly or indirectly has at least a majority
ownership interest and power to direct the policies, management and affairs
thereto.
The term "Finance Subsidiary" shall mean any Subsidiary engaged within
the United States in the business of purchasing notes, accounts receivable
(whether or not payable in installments), conditional sale contracts or other
paper originating in sales at wholesale or retail, or of leasing new or used
products or of making installment loans.
Third Amended and Restated Indenture:
------------------------------------
The term "Third Amended and Restated Indenture" shall mean this
instrument as originally executed or as it may be amended or supplemented from
time to time as herein provided, and shall include the form and terms of
particular Tranches of Securities established as contemplated hereunder.
7
Tranche:
-------
The term "Tranche" shall mean all Securities of the same series having
identical terms but for authentication date and public offering price.
Trust Indenture Act of 1939:
---------------------------
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture
Act of 1939 as it was in force at the date of execution of this Third Amended
and Restated Indenture, except as provided in Section 10.03.
Trustee:
-------
The term "Trustee" shall mean the corporation or association named as
Trustee in this Third Amended and Restated Indenture and, subject to the
provisions of Article Seven, shall also include its successors and assigns as
Trustee hereunder. If pursuant to the provisions of this Third Amended and
Restated Indenture there shall be at any time more than one Trustee hereunder,
the term "Trustee" as used with respect to Securities of any Tranche shall mean
the Trustee with respect to Securities of such Tranche.
Unregistered Security:
---------------------
The term "Unregistered Security" shall mean any Security other than a
Registered Security.
8
ARTICLE TWO
DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section 2.01. Forms. The Securities and the Coupons, if any,
-----
appertaining thereto shall be in substantially such form as shall be established
by or pursuant to a resolution of the Board of Directors or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Third Amended and Restated Indenture, and may have such legends or
endorsements placed thereon as the officers executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Third Amended and Restated 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 stock exchange on which
such Securities may be listed, or to conform to usage.
The Trustee's Certificate of Authentication on all Securities shall be
in substantially the following form, and shall be executed on behalf of the
Trustee by its authorized officer or agent:
This is one of the Securities of the Tranche designated therein
described in the within-mentioned Indenture.
________________________________,
as Trustee
By______________________________
Section 2.02. Amount Unlimited; Issuable in Series and Tranches. The
-------------------------------------------------
aggregate principal amount of Securities which may be authenticated and
delivered under this Third Amended and Restated Indenture is unlimited.
The Securities may be issued in one or more series, each of which may
consist of one or more Tranches. There shall be established in or pursuant to a
resolution of the Board of Directors or established in one or more
9
indentures supplemental hereto, prior to the issuance of Securities of any
Tranche,
(1) the title of the series to which such Tranche belongs (which shall
distinguish the Securities of such series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
such series or Tranche which may be authenticated and delivered under this
Third Amended and Restated Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the Tranche pursuant to Section 2.06, 2.07,
2.08, 3.03, 3.06 or 10.04);
(3) the date or dates on which the principal and premium, if any, of
the Securities of the Tranche are payable;
(4) the rate or rates, or the method of determination thereof, at
which the Securities of the Tranche shall bear interest, if any, the date
or dates from which such interest shall accrue, the interest payment dates
on which such interest shall be payable and, in the case of Registered
Securities, if other than as set forth in Section 2.04, the record dates
for the determination of holders to whom interest is payable;
(5) the place or places where the principal of, and premium, if any,
and any interest on Securities of the Tranche shall be payable;
(6) the Specified Currency of the Securities of the Tranche;
(7) the currency or currencies in which payments on the Securities of
the Tranche are payable, if other than the Specified Currency;
(8) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the Tranche may be
redeemed, in whole or in part, at the option of the Company, pursuant to
any sinking fund or otherwise;
10
(9) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the Tranche pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and the price or prices at
which or process by which and the period or periods within which and the
terms and conditions upon which Securities of the Tranche shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(10) the denominations in which Securities of the Tranche shall be
issuable, if other than as provided in Section 2.04;
(11) if other than the principal amount thereof, the portion of the
principal amount of Securities of the Tranche which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
6.01;
(12) if other than the Specified Currency, the coin or currency in
which payment of the principal of or interest on the Securities of the
Tranche shall be payable;
(13) if the principal of or interest on the Securities of the Tranche
are to be payable, at the election of the Company or a holder thereof, in a
coin or currency other than the Specified Currency, the period or periods
within which, and the terms and conditions upon which, such election may be
made;
(14) if the amount of payments of principal of and interest on the
Securities of the Tranche may be determined with reference to an index
based on a coin or currency other than the Specified Currency, the manner
in which such amounts shall be determined;
(15) whether the Securities of the Tranche will be issuable as
Registered Securities (and, if so, whether such Securities will be issuable
as Registered Global Securities) or Unregistered Securities (with or
without Coupons), or any combination of the foregoing, any restriction
applicable to the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon and, if other than as provided in Section 2.06,
the terms upon which Unregistered Securities of any Tranche may be
exchanged for Registered Securities of such Tranche and vice versa;
11
(16) whether and under what circumstances the Company will pay
additional amounts on the Securities of the Tranche held by a Person who is
not a U.S. Person in respect of any tax, assessment, or governmental charge
withheld or deducted and, if so, whether the Company will have the option
to redeem such Securities rather than pay such additional amounts;
(17) if the Securities of such Tranche are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such Tranche) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, the
form and terms of such certificates, documents or conditions, if other than
as provided for by the form of such Securities established pursuant to
Section 2.01;
(18) any Events of Default with respect to the Securities of the
Tranche, if not set forth herein;
(19) if other than the rate of interest stated in the title of the
Securities of the Tranche, the applicable Overdue Rate;
(20) in the case of any Tranche of non-interest bearing Securities,
the applicable dates for purposes of clause (a) of Section 5.01;
(21) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to such
Tranche; and
(22) any other terms of the Tranche (which terms shall not be
inconsistent with the provisions of this Third Amended and Restated
Indenture).
All Securities of any one Tranche and Coupons, if any, appertaining
thereto, shall be substantially identical except as to denomination and except
as may otherwise be provided in or pursuant to such resolution of the Board of
Directors or in any indenture supplemental hereto.
Section 2.03. Authentication. At any time and from time to time
--------------
after the execution and delivery of this Third Amended and Restated Indenture,
the Company may deliver Securities of any Tranche having attached thereto
appropriate Coupons, if any, executed by the Company to the Trustee or its agent
for authentication. Except as otherwise provided in this Article Two, the
Trustee shall
12
thereupon authenticate and deliver, or cause to be authenticated and delivered,
said Securities to or for the account of the Company upon the written order of
the Company, signed by its President, its Chairman or any Vice Chairman of the
Board or one of its Vice Presidents (including Executive and Senior Vice
Presidents) and by its Senior Vice President-Corporate Treasury and Global
Funding Operation or its Controller. In authenticating or causing the
authentication of such Securities and accepting the additional responsibilities
under this Third Amended and Restated Indenture in relation to such Securities,
the Trustee shall be entitled to receive and (subject to Sections 7.01 and 7.02)
shall be fully protected in relying upon:
(1) a copy of any resolution or resolutions of the Board of Directors
relating thereto and, if applicable, an appropriate record of any action
taken pursuant to such resolution, in each case certified by the Secretary
or an Assistant Secretary of the Company;
(2) an executed supplemental indenture, if any, relating thereto;
(3) an Officers' Certificate prepared in accordance with Section 14.05
which shall also state to the best knowledge of the signers of such
Certificate that no Event of Default with respect to any Tranche of
Securities shall have occurred and be continuing; and
(4) an Opinion of Counsel prepared in accordance with Section 14.05
which shall also state:
(a) that the forms of such Securities and Coupons, if any, have
been established by or pursuant to a resolution of the Board of
Directors or by a supplemental indenture as permitted by Section 2.01
in conformity with the provisions of this Third Amended and Restated
Indenture;
(b) that the terms of such Securities have been established by or
pursuant to a resolution of the Board of Directors or by a
supplemental indenture as permitted by Section 2.02 in conformity with
the provisions of this Third Amended and Restated Indenture;
(c) that such Securities and Coupons, if any, when authenticated
(in the case of the Securities) and delivered by or at the direction
13
of the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
legal, valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles;
(d) that the Company has the corporate power to issue such
Securities and Coupons, if any, and has duly taken all necessary
corporate action with respect to such issuance;
(e) that the issuance of such Securities and Coupons, if any,
will not contravene the organization certificate or by-laws of the
Company 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 known to such Counsel by which the Company or any of its
Subsidiaries is bound; and
(f) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities and Coupons, if any,
and the related supplemental indenture, if any, have been complied
with and that authentication and delivery of such Securities and
Coupons, if any, and the execution and delivery of the related
supplemental indenture, if any, by the Trustee will not violate the
terms of this Third Amended and Restated Indenture.
The Trustee shall have the right to decline to authenticate and
deliver or cause to be authenticated and delivered any Securities under this
Section 2.03 if the Trustee, being advised by counsel, determines that such
action may not lawfully be taken or if the Trustee in good faith by action of
its board of directors or trustees, executive committee, or a trust committee of
directors or trustees and Responsible Officers shall determine that such action
would expose the Trustee to personal liability to existing Securityholders.
If the Company shall establish pursuant to Section 2.02 that the
Securities of a Tranche are to be issued in the form of one or more Registered
Global Securities, then the Company shall execute and the Trustee shall, in
14
accordance with this Section 2.03 and the Company order with respect to such
Tranche, authenticate and deliver one or more Registered Global Securities that
(i) shall represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such Tranche issued and not yet
canceled, (ii) shall be either in bearer form or registered in the name of the
Depositary for such Registered Global Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security may
not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.02 must, at the time
of its designation and at all times while it serves as Depositary hereunder, be
a clearing agency registered under the United States Securities Exchange Act of
1934 and any other applicable statute or regulation.
Section 2.04. Date and Denomination of Securities. The Securities of
-----------------------------------
each Tranche shall be issuable as Registered Securities or Unregistered
Securities in such denominations as shall be specified as contemplated by
Section 2.02. In the absence of any such specification (a) with respect to
Registered Securities, such Securities shall be issuable in denominations of
100,000 units of the Specified Currency and integral multiples of 1,000 units of
the Specified Currency in excess thereof; and (b) with respect to Unregistered
Securities, such Securities shall be issuable in denominations of not less than
1,000 units of the Specified Currency and in such other denominations in excess
thereof as may be provided in or pursuant to a supplemental indenture or
resolution of the Board of Directors in accordance with Section 2.02.
Securities of each Tranche shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Company executing the same may determined with the approval of the Trustee.
Every Registered Security shall be dated the date of its
authentication. Every Unregistered Security shall be dated as provided in the
resolution of the Board of
15
Directors or the supplemental indenture referred to in Section 2.02; provided,
--------
however, that Unregistered Securities which are part of the same Tranche as a
-------
prior issue of Notes shall be dated the original issue date of such prior issue
of Notes.
The Person in whose name any Registered Security of a particular
Tranche is registered at the close of business on any record date (as
hereinafter defined) with respect to any interest payment date for such Tranche
shall be entitled to receive the interest payable on such interest payment date
notwithstanding the cancellation of such Registered Security upon any
registration of transfer or exchange subsequent to the record date and prior to
such interest payment date; provided, however, that if and to the extent that
-------- -------
the Company shall default in the payment of interest on such interest payment
date, such defaulted interest shall be paid to the Persons in whose names
Outstanding Registered Securities of such Tranche are registered on a subsequent
record date established by notice given by mail by or on behalf of the Company
to the holders of such Registered Securities not less than 15 days preceding
such subsequent record date, such record date to be not less than five days
preceding the date of payment of such defaulted interest. Except as otherwise
specified as contemplated by Section 2.02 for Registered Securities of a
particular Tranche, the term "record date" as used in this Section 2.04 with
respect to any regular interest payment date shall mean the last day of the
calendar month preceding such interest payment date if such interest payment
date is the fifteenth day of the calendar month, and shall mean the fifteenth
day of the calendar month preceding such interest payment date if such interest
payment date is the first day of a calendar month, whether or not such day shall
be a Business Day.
Section 2.05. Execution of Securities. The Securities and, if
-----------------------
applicable, the Coupons appertaining thereto, shall be signed in the name and on
behalf of the Company by the manual or facsimile signature of its President, its
Chairman of the Board, its Senior Vice President, Finance, or its Senior Vice
President-Corporate Treasury and Global Funding Operation, under its corporate
seal (which may be printed, engraved or otherwise reproduced thereon, by
facsimile or otherwise) attested by the Secretary or any Assistant Secretary of
the Company. Only such Securities as shall bear thereon a certificate of
authentication substantially in the form herein recited, executed by the
Trustee, shall be entitled to the benefits of this Third Amended and Restated
Indenture or be valid or
16
obligatory for any purpose. Such certificate by the Trustee upon any Security
executed by the Company shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
holder is entitled to the benefits of this Third Amended and Restated Indenture.
In case any officer of the Company who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Securities or Coupons so signed (or the Securities to which the Coupons so
signed appertain) shall have been authenticated and delivered by the Trustee, or
disposed of by the Company, such Securities or Coupons nevertheless may be
authenticated and delivered or disposed of as though the Person who signed such
Securities or Coupons had not ceased to be such officer of the Company; and any
Security or Coupon may be signed on behalf of the Company by such Persons as, at
the actual date of such Security or Coupon, shall be the proper officers of the
Company, although at the date of the execution of this Third Amended and
Restated Indenture any such Person was not such an officer.
Section 2.06. Exchange and Registration of Transfer of Securities.
---------------------------------------------------
Registered Securities of any Tranche (other than a Registered Global Security,
except as set forth below) may be exchanged for a like aggregate principal
amount of Registered Securities of the same Tranche of other authorized
denominations. Unregistered Securities will not be issuable in exchange for
Registered Securities.
Unregistered Securities of any Tranche (with all unmatured Coupons, if
any, and all matured Coupons, if any, then in default, attached thereto) may be
exchanged for Registered Securities of the same Tranche of any authorized
denominations and in an equal aggregate principal amount. Unregistered
Securities surrendered in exchange for Registered Securities after the close of
business on (i) any record date with respect to any regular payment of interest
and before the opening of business at such office on the relevant interest
payment date or (ii) any record date to be established for the payment of
defaulted interest and before the opening of business on the related proposed
date for payment of defaulted interest, shall be surrendered without the Coupon
relating to such date for payment of interest.
Securities to be exchanged pursuant to the preceding two paragraphs
shall be surrendered, at the option of the holders thereof, either at the office
or agency
17
designated and maintained by the Company for such purpose in the Borough of
Manhattan, The City of New York in accordance with the provisions of Section
4.02 or at any of such other offices or agencies as may be designated and
maintained by the Company for such purpose in accordance with the provisions of
Section 4.02, and the Company shall execute and register and the Trustee shall
authenticate and deliver in exchange therefor the Security or Securities which
the Securityholder making the exchange shall be entitled to receive. Each Person
designated by the Company pursuant to the provisions of Section 4.02 as a Person
authorized to register and register transfer of the Securities is sometimes
herein referred to as a "Security registrar."
Unregistered Securities in definitive form of any Tranche will be
exchangeable for Unregistered Securities in definitive form of the same Tranche
in other authorized denominations, in an equal aggregate principal amount.
Unregistered Securities to be so exchanged shall be surrendered, at the option
of the holders thereof, either at the office or agency designated and maintained
by the Company for such purpose outside the United States in accordance with the
provisions of Section 4.02, or at the office of any agent appointed by the
Company to perform such service, and the Company shall execute and the Trustee
shall authenticate and deliver, or cause to be authenticated and delivered, in
exchange therefor the Unregistered Security or Securities which the
Securityholder making the exchange shall be entitled to receive.
The Company shall keep, at each such office or agency, a register for
each Tranche of Registered Securities issued hereunder (the registers of all
Security registrars being herein sometimes collectively referred to as the
"Security register" or the "registry books of the Company") in which, subject to
such reasonable regulations as it may prescribe, the Company shall register
Registered Securities and shall register the transfer of Registered Securities
as provided in this Article Two. The Security register shall be in written form
or in any other form capable of being converted into written form within a
reasonable time. At all reasonable times the Security register shall be open
for inspection by the Trustee and any Security registrar other than the Trustee.
Upon due presentment for registration of transfer of any Registered Security of
any Tranche at any designated office or agency, the Company shall execute and
register and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Registered Security or Registered Securities of
the same Tranche for an equal aggregate principal amount. Registration or
18
registration of transfer of any Registered Security by any Security registrar in
the registry books of the Company maintained by such Security registrar, and
delivery of such Registered Security, duly authenticated, shall be deemed to
complete the registration or registration of transfer of such Registered
Security.
The Company will at all times designate one Person (who may be the
Company and who need not be a Security registrar) to act as repository of a
master list of names and addresses of the holders of the Registered Securities.
The Company shall act as such repository unless and until some other Person is,
by written notice from the Company to the Trustee and each Security registrar,
designated by the Company to act as such. The Company shall cause each Security
registrar to furnish to such repository, on a current basis, such information as
to all registrations of transfer and exchanges effected by such registrar, as
may be necessary to enable such repository to maintain such master list on as
current a basis as is practicable.
No Person shall at any time be designated as or act as a Security
registrar unless such Person is at such time empowered under applicable law to
act as such and duly registered to act as such under and to the extent required
by applicable law and regulations.
All Registered Securities presented for registration of transfer or
for exchange, redemption, repayment or payment shall (if so required by the
Company or the Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer or exchange in form satisfactory to the
Company and the Trustee duly executed by, the holder or his attorney duly
authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities to be redeemed for a period of fifteen calendar days
preceding the first publication of the relevant notice of redemption, or if
Registered Securities are Outstanding and there is no publication, the mailing
of the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Registered Securities selected for redemption, in whole
19
or in part, except the unredeemed portion of any such Registered Securities
being redeemed in part, or (iii) to exchange any Unregistered Securities
selected for redemption except that such Unregistered Securities may be
exchanged for Registered Securities of like tenor, provided that such Registered
Securities shall be simultaneously surrendered for redemption or (iv) to
register the transfer of or exchange any Securities surrendered for optional
repayment, in whole or in part.
Unregistered Securities and any Coupons appertaining thereto will be
transferable by delivery.
Notwithstanding any other provision of this Section 2.06, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a Tranche may not be transferred except as a whole by the
Depositary for such Tranche 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 Tranche
or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a
Tranche represented by one or more Registered Global Securities notifies the
Company that it is unwilling or unable to continue as Depositary for such
Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.03, the Company shall
appoint a successor Depositary eligible under Section 2.03 with respect to such
Registered Securities. If a successor Depositary eligible under Section 2.03
for such Registered Securities is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility,
the Company's election pursuant to Section 2.02 that such Registered Securities
be represented by one or more Registered Global Securities shall no longer be
effective and the Company will execute, and the Trustee, upon receipt of an
Officer's Certificate for the authentication and delivery of definitive
Securities of such Tranche, will authenticate and deliver Securities of such
Tranche in definitive registered form without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the aggregate principal
amount of the Registered Global Security or Securities representing such
Registered Securities in exchange for such Registered Global Security or
Securities.
20
The Company may at any time and in its sole discretion determine that
Registered Securities issued in the form of one or more Registered Global
Securities shall no longer be represented by a Registered Global Security or
Securities. In such event the Company will execute and the Trustee, upon
receipt of an Officer's Certificate for the authentication and delivery of
definitive Securities, will authenticate and deliver Securities of the same
Tranche in definitive registered form without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the aggregate principal
amount of the Registered Global Security or Securities in exchange for such
Registered Global Security or Securities.
If specified by the Company pursuant to Section 2.02 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same Tranche in definitive
registered form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge:
(i) to the Person specified by such Depositary, a new Registered
Security or Securities of the same Tranche, of any authorized denominations
as requested by such Person, in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Registered Global
Security; and
(ii) to such Depositary, a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Registered Global Security and the aggregate principal
amount of Registered Securities authenticated and delivered pursuant to
clause (i) above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without Coupons, in authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered
Global Security, such Registered Global Security shall be canceled by the
Trustee or an agent of the Company or the Trustee. Securities in definitive
registered form without Coupons issued in exchange for a Registered Global
Security pursuant to this Section 2.06 shall be registered in such names and in
such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants or
21
otherwise, shall instruct the Trustee or an agent of the Company or the Trustee.
The Trustee or such agent shall deliver such Securities to or as directed by the
Persons in whose names such Securities are so registered.
Notwithstanding anything herein or in the terms of any Securities to
the contrary, none of the Company, the Trustee or any agent of the Company or
the Trustee (any of which, other than the Company, shall be entitled to rely on
an Officer's Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if such exchange
could result in adverse Federal income tax consequences to the Company (such as,
for example, the inability of the Company to deduct from its income, as computed
for Federal income tax purposes, the interest payable on the Unregistered
Securities) under then applicable United States Federal income tax laws, as
determined by the Company.
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities. In
-----------------------------------------------
case any temporary or definitive Security or any Coupon appertaining to any
Security shall become mutilated or be destroyed, lost or stolen, the Company in
the case of a mutilated Security or Coupon shall, and in the case of a lost,
stolen, or destroyed Security or Coupon may in its discretion, execute and, upon
the written request or authorization of any officer of the Company, the Trustee
shall authenticate and deliver a new Security of the same Tranche or Coupon, as
the case may be, bearing a number not contemporaneously Outstanding, in exchange
and substitution for the mutilated Security or Coupon, or in lieu of and in
substitution for the Security or Coupon so destroyed, lost or stolen with (in
the case of mutilated, lost, stolen or destroyed Securities) Coupons
corresponding to the Coupons appertaining to such Securities. In every case the
applicant for a substituted Security or Coupon shall furnish to the Company and
to the Trustee such security or indemnity as may be required by them to save
each of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security or Coupon and of
the ownership thereof.
Upon the issuance of any substituted Security or Coupon, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Security or Coupon which has matured
or is about to mature shall become
22
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a
substituted Security or Coupon, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Security or Coupon)
if the applicant for such payment shall furnish to the Company and to the
Trustee such security or indemnity as may be required by them to save each of
them harmless and, in case of destruction, loss or theft, evidence satisfactory
to the Company and the Trustee of the destruction, loss or theft of such
Security or Coupon and the ownership thereof.
Every substituted Security or Coupon issued pursuant to the provisions
of this Section 2.07 by virtue of the fact that any Security or Coupon is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security or Coupon
shall be found at any time, and shall be entitled to all the benefits of this
Third Amended and Restated Indenture equally and proportionately with any and
all other Securities or Coupons of the same Tranche duly issued hereunder. All
Securities and Coupons shall be held and owned upon the express condition that
the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and Coupons and shall
preclude (to the extent lawful) any and all other rights or remedies with
respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
Section 2.08. Temporary Securities. Pending the preparation of
--------------------
definitive Securities of any Tranche, the Company may execute and the Trustee
shall authenticate and deliver temporary Securities (printed, lithographed or
typewritten). Temporary Securities shall be issuable in any authorized
denomination and substantially in the form of the definitive Securities in lieu
of which they are issued, but with such omissions, insertions and variations as
may be appropriate for temporary Securities, all as may be determined by the
Company. Every such temporary Security shall be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with the same
effect, as the definitive Securities in lieu of which they are issued. Without
unreasonable delay, the Company will execute and deliver to the Trustee
definitive Securities of such Tranche and thereupon any or all temporary
Securities of such Tranche may be surrendered in exchange therefor, at the
option of the holders thereof, either at the office or agency to be designated
and maintained by the Company for such purpose in the Borough of Manhattan, The
City of New York in accordance with the
23
provisions of Section 4.02 or at any of such other offices or agencies as may be
designated and maintained by the Company for such purpose in accordance with the
provisions of Section 4.02, and the Trustee shall authenticate and deliver in
exchange for such temporary Securities an equal aggregate principal amount of
definitive Securities of the same Tranche and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Such exchange shall
be made by the Company at its own expense and without any charge therefor. Until
so exchanged, the temporary Securities of any Tranche shall in all respects be
entitled to the same benefits under this Third Amended and Restated Indenture as
definitive Securities of the same Tranche authenticated and delivered hereunder,
unless otherwise established pursuant to Section 2.02. The provisions of this
Section 2.08 are subject to any restrictions or limitations on the issue and
delivery of temporary Unregistered Securities that may be established pursuant
to Section 2.01 or 2.02 (including any provision that such Unregistered
Securities initially be issued in the form of a single global Unregistered
Security to be delivered to a depositary located outside the United States and
the procedures pursuant to which definitive or global Unregistered Securities
would be issued in exchange for such temporary global Unregistered Security).
Section 2.09. Cancellation of Securities Paid, etc. All Securities
-------------------------------------
and Coupons surrendered for the purpose of payment, redemption, repayment,
exchange or registration of transfer or for credit against any sinking fund
shall, if surrendered to the Company, any Security registrar, any paying agent
or any other agent of the Company or of the Trustee, be delivered to the Trustee
and promptly canceled by it, or, if surrendered to the Trustee, shall be
promptly canceled by it, and no Securities or Coupons shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this Third
Amended and Restated Indenture. The Trustee may destroy canceled Securities and
Coupons and deliver a certificate of such destruction to the Company or, at the
written request of the Company, shall deliver canceled Securities and Coupons to
the Company. If the Company shall acquire any of the Securities or Coupons,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities or Coupons unless and until the
same are delivered to the Trustee for cancellation.
Section 2.10. Computation of Interest. Except as otherwise specified
-----------------------
as contemplated by Section 2.02 for Securities of any Tranche, interest on the
Securities of
24
each Tranche shall be computed on the basis of a 360-day year of twelve 30-day
months.
ARTICLE THREE
REDEMPTION OF SECURITIES; SINKING FUNDS; REPAYMENT AT THE
OPTION OF THE HOLDER
Section 3.01. Applicability of Article. The provisions of this
------------------------
Article Three shall be applicable, as the case may be, (i) to any Securities
which are redeemable or subject to repayment at the option of the holder before
their maturity and (ii) to any sinking fund for the retirement of any
Securities, in either case except as otherwise specified as contemplated by
Section 2.02 for any Tranche of Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities 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 such Securities is herein referred to as an "optional sinking fund
payment."
Section 3.02. Notice of Redemption; Selection of Securities. In case
---------------------------------------------
the Company shall desire to exercise any right to redeem all, or, as the case
may be, any part of, the Securities of any Tranche in accordance with their
terms, it shall fix a date for redemption. Notice of redemption to the holders
of Registered Securities of any Tranche to be redeemed as a whole or in part at
the option of the Company shall be given by mailing notice of such redemption by
first class mail, postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption to such holders at their last addresses
as they shall appear upon the registry books of the Company and to the Trustee.
Notices of redemption to be sent to the holders of Global Series Notes that are
Registered Securities shall be sent only to the holders of those Global Series
Notes to be redeemed. Notice of redemption to the holders of Unregistered
Securities to be redeemed as a whole or in part who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture
Act of 1939 shall be given by mailing notice of such redemption, by first class
mail, postage prepaid, at least 30 days and not more than 60 days prior to the
date fixed for redemption, to such holders at such addresses as were so
furnished to the Trustee (and, in the case of any such notice given by the
Company, the Trustee shall make such
25
information available to the Company for such purpose). Notice of redemption to
all other holders of Unregistered Securities shall be published in an Authorized
Newspaper in the Borough of Manhattan, The City of New York, in an Authorized
Newspaper in London and, if any such Unregistered Securities are listed on the
Luxembourg Stock Exchange, in an Authorized Newspaper in Luxembourg, in each
case, once in each of three successive calendar weeks, the first publication to
be not less than 30 nor more than 60 days prior to the date fixed for
redemption. Any notice if given in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give notice or any defect in the
notice to the holder of any Security of a Tranche designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such Tranche.
Each such notice of redemption shall specify the date fixed for
redemption, the redemption price at which the Securities of such Tranche are to
be redeemed, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities and, in the case of Securities
issued with Coupons, of all Coupons appertaining thereto maturing after the date
fixed for redemption, that any interest accrued to the date fixed for redemption
will be paid as specified in said notice, and that on and after said date any
interest thereon or on the portions thereof to be redeemed will cease to accrue.
If less than all the Securities of a Tranche are to be redeemed, the notice of
redemption shall specify the number or numbers of the Securities to be redeemed.
In case any Security is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of the same Tranche in principal amount
equal to the unredeemed portion thereof, together with any unmatured Coupons
appertaining thereto, will be issued.
Prior to the redemption date specified in the notice of redemption
given as provided in this Section 3.02, the Company will deposit with the
Trustee or with one or more paying agents (or if the Company is acting as its
own paying agent, shall segregate and hold in trust as provided in Section 4.05)
an amount of money sufficient to redeem on the redemption date all the
Securities or portions thereof so called for redemption, together with accrued
interest to the date fixed for redemption. If less than all the
26
Securities of a Tranche are to be redeemed, the Company will give the Trustee
notice not less than 60 days prior to the redemption date as to the aggregate
principal amount of Securities of such Tranche to be redeemed, and the Trustee
shall select or cause to be selected, in such manner as in its sole discretion
it shall deem appropriate and fair, the Securities or portions thereof to be
redeemed. Securities of a Tranche may be redeemed in part only in multiples of
the smallest authorized denomination of that Tranche.
Section 3.03. Payment of Securities Called for Redemption. If notice
-------------------------------------------
of redemption has been given as provided in Section 3.02 or 3.05, the Securities
or portions of Securities of the Tranche with respect to which such notice has
been given shall become due and payable on the date and at the place or places
stated in such notice at the applicable redemption price, together with any
interest accrued to the date fixed for redemption, and on and after said date
(unless the Company shall default in the payment of such Securities or portions
of such Securities, together with any interest accrued to said date) any
interest on the Securities or portions of Securities of such Tranche so called
for redemption shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void. On presentation and surrender of such
Securities at a place of payment in said notice specified, together with all
Coupons, if any, appertaining thereto maturing after the date fixed for
redemption, the said Securities or the specified portions thereof shall be paid
and redeemed by the Company at the applicable redemption price, together with
any interest accrued thereon to the date fixed for redemption; provided,
--------
however, that payment of interest becoming due on or prior to the date fixed for
-------
redemption shall be payable in the case of Securities with Coupons attached
thereto, to the holders of the Coupons for such interest upon surrender thereof,
and in the case of Registered Securities, to the Holders of such Registered
Securities registered as such on the relevant record date subject to the terms
and provisions of Sections 2.02 and 2.04.
If any Security issued with Coupons is surrendered for redemption and
is not accompanied by all appurtenant Coupons maturing after the date fixed for
redemption and all matured Coupons, if any, then in default, the surrender of
such missing Coupon or Coupons may be waived by the Company and the Trustee, if
there be furnished to each of them such security or indemnity as they may
require to save each of them harmless.
27
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and deliver to the holder
thereof, at the expense of the Company, a new Security or Securities of the same
Tranche, of authorized denominations, together with all unmatured Coupons, if
any, and all matured Coupons, if any, then in default appertaining thereto, in
aggregate principal amount equal to the unredeemed portion of the Security so
presented.
Section 3.04. Satisfaction of Mandatory Sinking Fund Payments with
----------------------------------------------------
Securities. In lieu of making all or any part of any mandatory sinking fund
----------
payment with respect to any Securities in cash, the Company may at its option
(a) deliver to the Trustee Securities, together with all unmatured Coupons, if
any, appertaining thereto, of the same Tranche theretofore purchased or
otherwise acquired by the Company or (b) receive credit for the principal amount
of Securities of the same Tranche which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities; provided that such Securities have not previously been so
--------
credited. Such Securities shall be received and credited for such purpose by
the Trustee at 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.
Section 3.05. Redemption of Securities for Sinking Fund. Not less
-----------------------------------------
than 60 days prior to each sinking fund payment date for any Securities, the
Company will deliver to the Trustee a certificate signed by the Senior Vice
President-Corporate Treasury and Global Funding Operation or any Assistant
Treasurer of the Company specifying the amount of the next ensuing sinking fund
payment for such Securities pursuant to the terms thereof, the portion thereof,
if any, which is to be satisfied by payment of cash (which cash may be deposited
with the Trustee or with one or more paying agents, or if the Company is acting
as its own paying agent, segregated and held in trust as provided in Section
4.04) and the portion thereof, if any, which is to be satisfied by delivering
and crediting Securities of the same Tranche pursuant to Section 3.04 (which
Securities, if not theretofore delivered, will accompany such certificate) and
whether the Company intends to exercise its right to make a permitted optional
sinking fund payment with respect to such Securities. Such certificate shall
also state that no Event of Default has occurred and is continuing with respect
to such Securities.
28
Such certificate shall be irrevocable and, upon its delivery, the Company shall
be obligated to make the cash payment or payments therein referred to, if any,
on or before the next succeeding sinking fund payment date. In the case of the
failure of the Company to deliver such certificate (or to deliver the Securities
specified in this paragraph), the sinking fund payment due on the next
succeeding sinking fund payment date for such Securities shall be paid entirely
in cash and shall be sufficient to redeem the principal amount of such
Securities subject to a mandatory sinking fund payment without the option to
deliver or credit Securities as provided in Section 3.04 and without the right
to make any optional sinking fund payment, if any, with respect to such
Securities.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made in cash
which, in the aggregate, shall equal or exceed 100,000 units of the Specified
Currency with respect to the particular Tranche (or a lesser sum if the Company
shall so request or determine) with respect to any Securities shall be applied
by the Trustee (or by the Company if the Company is acting as its own paying
agent) on the sinking fund payment date on which such payment is made (or, if
such payment is made before a sinking fund payment date, on the next sinking
fund payment date following the date of such payment) to the redemption of such
Securities at the redemption price specified in such Securities for operation of
the sinking fund together with accrued interest, if any, to the date fixed for
redemption. Any sinking fund moneys not so applied or allocated by the Trustee
(or by the Company if the Company is acting as its own paying agent) to the
redemption of Securities shall be added to the next cash sinking fund payment
received by the Trustee (or if the Company is acting as its own paying agent,
segregated and held in trust as provided in Section 4.04) for such Securities
and, together with such payment (or such amount so segregated), shall be applied
in accordance with the provisions of this Section 3.05. Any and all sinking
fund moneys with respect to any Securities held by the Trustee (or if the
Company is acting as its own paying agent, segregated and held in trust as
provided in Section 4.04) on the last sinking fund payment date with respect to
such Securities and not held for the payment or redemption of particular
Securities of such Tranche shall be applied by the Trustee (or by the Company if
the Company is acting as its own paying agent), together with other moneys, if
necessary, to be deposited (or segregated) sufficient for
29
the purpose, to the payment of the principal of the Securities of that Tranche
at maturity.
The Trustee shall select or cause to be selected the Securities to be
redeemed upon such sinking fund payment date in the manner specified in the last
paragraph of Section 3.02 and the Company shall cause notice of the redemption
thereof to be given in the manner provided in Section 3.02 except that the
notice of redemption shall also state that the Securities are being redeemed by
operation of the sinking fund. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Section 3.03.
On or before each sinking fund payment date, the Company shall pay to
the Trustee in cash (or if the Company is acting as its own paying agent, shall
segregate and hold in trust as provided in Section 4.04) a sum equal to any
interest accrued to the date fixed for redemption of Securities or portions
thereof to be redeemed on such sinking fund payment date pursuant to this
Section 3.05.
Neither the Trustee nor the Company shall redeem any Securities with
sinking fund moneys or give any notice of redemption of such Securities by
operation of the sinking fund for such Tranche during the continuance of a
default in payment of interest, if any, on such Securities or of any Event of
Default (other than an Event of Default occurring as a consequence of this
paragraph) with respect to such Securities, except that if the notice of
redemption of any such Securities shall theretofore have been given in
accordance with the provisions hereof, the Trustee (or the Company if the
Company is acting as its own paying agent) shall redeem such Securities if cash
sufficient for that purpose shall be deposited with the Trustee (or segregated
by the Company) for that purpose in accordance with the terms of this Article
Three. Except as aforesaid, any moneys in the sinking fund for such Securities
at the time when any such default or Event of Default shall occur and any moneys
thereafter paid into such sinking fund shall, during the continuance of such
default or Event of Default, be held as security for the payment of such
Securities; 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 for such Securities to which
such moneys may be applied pursuant to the provisions of this Section 3.05.
30
Section 3.06. Repayment at the Option of the Holder. Any Tranche of
-------------------------------------
Securities may be made, by provision contained in or established pursuant to a
supplemental indenture or a resolution of the Board of Directors pursuant to
Section 2.02, subject to repayment, in whole or in part, at the option of the
holder on a date or dates specified prior to maturity, at a price equal to 100%
of the principal amount thereof, together with accrued interest to the date of
repayment or, in the case of Original Issue Discount Securities, at a price
equal to 100% of the accreted principal amount thereof to the date of such
repayment, on such notice as may be required; provided, however, that the holder
-------- -------
of a Security may only elect partial repayment in an amount that will result in
the portion of such Security that will remain Outstanding after such repayment
constituting an authorized denomination, or combination thereof, of such
Securities.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal, Premium and Interest. The
------------------------------------------
Company covenants and agrees for the benefit of all holders of Securities issued
hereunder that it will duly and punctually pay or cause to be paid the principal
of, premium, if any, and interest, if any, on all such Securities (for all
purposes herein, references to interest shall include any additional amounts
payable pursuant to the terms of such Securities) at the places, at the
respective times and in the manner provided in such Securities, in the Coupons,
if any, appertaining thereto, and in this Third Amended and Restated Indenture.
The interest on Securities issued with Coupons (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only
upon presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature. If any
temporary Unregistered Security provides that interest thereon may be paid while
such Security is in temporary form, the interest on any such temporary
Unregistered Security (together with any additional amounts payable pursuant to
the terms of such Security) shall be paid, as to the installments of interest
evidenced by Coupons attached thereto, if any, only upon presentation and
surrender thereof, and, as to the other installments of interest, if any, only
upon presentation of such Securities for notation thereon of the payment of such
interest, in each case subject to any restrictions that may be established
pursuant to Section 2.02.
31
Section 4.02. Offices for Notices and Payments, etc. As long as any
--------------------------------------
Registered Securities remain Outstanding hereunder, the Company will designate
and maintain in the Borough of Manhattan, The City of New York an office or
agency where such Registered Securities may be presented for payment, and where
such Securities may be presented for registration of transfer and for exchange
as in this Third Amended and Restated Indenture provided.
The Company will maintain one or more offices or agencies in a city or
cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on
which any of the Securities are listed) where any Unregistered Securities issued
hereunder and Coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or Coupon will be made upon
presentation of such Unregistered Security or Coupon at an agency of the Company
within the United States nor will any payment be made by transfer to an account
in, or by check mailed to an address in, the United States unless pursuant to
applicable United States laws and regulations then in effect such payment can be
made without adverse consequences to the Company. Notwithstanding the
foregoing, payments in Dollars on Unregistered Securities and Coupons
appertaining thereto may be made at an agency of the Company maintained in the
Borough of Manhattan, The City of New York if such payment in Dollars at each
agency maintained by the Company outside the United States for payment on such
Unregistered Securities is illegal or effectively precluded by exchange controls
or other similar restrictions.
Interest on Registered Securities may at the option of the Company be
paid by check mailed to the Persons entitled thereto at their respective
addresses as such appear on the registry books of the Company, or, at the option
of any holder of $5,000,000 or more aggregate principal amount of Registered
Securities of any Tranche and subject to applicable laws and regulations (or the
equivalent thereof in a Specified Currency), be made by transfer to an account
denominated in the currency in which such payment is to be made, maintained by
such holder, if appropriate wire transfer instructions have been received by the
Company or its agent not less than ten days prior to the applicable interest
payment date.
Interest on Unregistered Securities and the Coupons appertaining
thereto shall be made upon presentation of such Securities or Coupons, subject
to applicable laws
32
and regulations, at the designated offices of such paying agents outside of the
United States as the Company may designate from time to time. Payments on
Unregistered Securities or the Coupons appertaining thereto will, upon
presentation of such Securities or Coupons, at the holder's option and subject
to applicable laws and regulations, be made by check or by wire transfer to an
account denominated in the currency in which such payment is to be made,
maintained by such holder with a bank outside the United States, if appropriate
wire transfer instructions have been received by the Company or its agent not
less than ten days prior to the applicable interest payment date.
The Company will maintain in the Borough of Manhattan, The City of New
York an office or agency where notices and demands to or upon the Company in
respect of any Securities issued hereunder, the Coupons appertaining thereto or
this Third Amended and Restated Indenture may be served.
The Company may from time to time designate one or more additional
offices or agencies where Securities and any Coupons appertaining thereto may be
presented for payment, where Securities may be presented for exchange as
provided in this Third Amended and Restated Indenture and pursuant to Section
2.02 and where Registered Securities may be presented for registration of
transfer as in this Third Amended and Restated Indenture provided, and the
Company may from time to time rescind any such designation, as the Company may
deem desirable or expedient; provided, however, that no such designation or
-------- -------
rescission shall in any manner relieve the Company of its obligation to maintain
the agencies provided for in this Section 4.02. The Company will give to the
Trustee prompt written notice of any such designation or rescission thereof.
The Company will give to the Trustee written notice of the location of
each such office or agency and of any change of location thereof. In case the
Company shall fail to maintain any such office or agency in the Borough of
Manhattan, The City of New York or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands may
be made and notices may be served at the principal office of the Trustee.
The Company hereby designates the office of the Company located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as the office or agency of the Company
in the Borough of Manhattan, The City of New York where Registered Securities
may be presented for payment, for registration of
33
transfer and for exchange as in this Third Amended and Restated Indenture
provided and where notices and demands to or upon the Company in respect of the
Securities or of this Third Amended and Restated Indenture may be served. The
Company also designates the office of the Company located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the office or agency of the Company as the
repository pursuant to Section 2.06 for the master list of the names and
addresses of the holders of Securities.
Section 4.03. Appointments to Fill Vacancies in Trustee's Office.
--------------------------------------------------
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.10, a successor
Trustee, so that there shall at all times be a Trustee with respect to all
Securities issued hereunder.
Section 4.04. Provision as to Paying Agent. (a) If the Company
----------------------------
shall appoint a paying agent other than the Trustee with respect to the
Securities of any Tranche, it will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 4.04,
(1) that it will hold all sums held by it as such agent for the
payment of the principal of, premium, if any, or interest, if any, on such
Securities (whether such sums have been paid to it by the Company or by any
other obligor on such Securities) in trust for the benefit of the holders
of such Securities, or the Coupons appertaining thereto, if any;
(2) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on such Securities) to make any payment of the
principal of, premium, if any, or interest, if any, on such Securities when
the same shall be due and payable; and
(3) that at any time during the continuance of any failure by the
Company (or by any other obligor on such Securities) specified in the
preceding paragraph (2), such paying agent will, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held in trust by
it.
(b) If the Company shall act as its own paying agent with respect to
the Securities of any Tranche, it will, on or before each due date of the
principal of, premium, if any, or interest, if any, on such Securities,
34
set aside, segregate and hold in trust for the benefit of the holders of such
Securities or the Coupons appertaining thereto, if any, a sum sufficient to pay
such principal, premium, if any, or interest, if any, so becoming due and will
promptly notify the Trustee of any failure to take such action and of any
failure by the Company (or by any other obligor on such Securities) to make any
payment of the principal of, premium, if any, or interest, if any, on such
Securities when the same shall become due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Third Amended and Restated Indenture, or for any other reason,
pay or cause to be paid to the Trustee all sums held in trust by it, or any
paying agent hereunder, as required by this Section 4.04, such sums to be held
by the Trustee upon the trusts herein contained.
(d) Anything in this Section 4.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.04 is subject to
Sections 12.03 and 12.04.
(e) Whenever the Company shall have one or more paying agents with
respect to the Securities of any Tranche, it will, prior to each due date of the
principal of, premium, if any, or interest, if any, on the Securities of such
Tranche, deposit with a designated paying agent a sum sufficient to pay the
principal, premium, if any, and interest, if any, so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal,
premium, if any, or interest, if any, and (unless such paying agent is the
Trustee) the Company will promptly notify the Trustee of any failure so to act.
Section 4.05. Statement as to Compliance. The Company will furnish
--------------------------
to the Trustee on or before June 1 in each year (beginning with first June 1
which is not less than 60 days following the first date of issuance of any
Tranche of Securities under this Third Amended and Restated Indenture) a brief
certificate (which need not comply with Section 14.05) from the principal
executive, financial or accounting officer or the Senior Vice President-
Corporate Treasury and Global Funding Operation of the Company stating that in
the course of the performance by the signer of his duties as an officer of the
Company he would normally have knowledge of any default or non-compliance by the
Company in the performance of any covenants or conditions contained in Sections
4.01 and 11.01, stating whether or not he has
35
knowledge of any such default or non-compliance and, if so, specifying each such
default or non-compliance of which the signer has knowledge and the nature
thereof.
ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 5.01. Securityholder Lists. If and so long as the Trustee
--------------------
shall not be the Security registrar for any Tranche of Registered Securities,
the Company will furnish or cause to be furnished to the Trustee with respect to
each Tranche of Registered Securities issued hereunder a list in such form as
the Trustee may reasonably require of the names and addresses of the holders of
Registered Securities of such Tranche pursuant to Section 312 of the Trust
Indenture Act of 1939 (a) semiannually not more than 15 days after each record
date for the payment of interest in respect of the Registered Securities of such
Tranche, as of such record date, and on dates to be determined pursuant to
Section 2.02 for each Tranche of non-interest bearing Registered Securities in
each year 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, as of a date
not more than 15 days prior to the time such information is furnished.
Section 5.02. Reports by the Company. The Company covenants to file
----------------------
with the Trustee, within 15 days after the Company is required to file the same
with the Securities and Exchange Commission, copies of the annual reports and of
the information, documents and other reports that the Company may be required to
file with the Securities and Exchange Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 or pursuant to Section 314
of the Trust Indenture Act of 1939.
Section 5.03. Reports by the Trustee. Any Trustee's report required
----------------------
under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on
or before May 15 in each year beginning May 15, 1997, as provided in Section
313(c) of the Trust Indenture Act of 1939, so long as any Securities are
Outstanding hereunder, and shall be dated as of a date convenient to the Trustee
no more than 60 days prior thereto.
36
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDER ON EVENT OF DEFAULT
Section 6.01. Events of Default. The term "Event of Default"
-----------------
whenever used herein with respect to Securities of any series means any one of
the following events and such other events as may be established with respect to
the Securities of such series as contemplated by Section 2.02, continued for the
period of time, if any, and after the giving of notice, if any, designated in
this Third Amended and Restated Indenture or as may be established with respect
to such Securities as contemplated by Section 2.02, as the case may be, unless
it is either inapplicable or is specifically deleted or modified in the
applicable resolution of the Board of Directors or in the supplemental indenture
under which such series of Securities is issued, as the case may be, as
contemplated by Section 2.02:
(a) default in the payment of any installment of interest upon any
Security of such series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of, or premium, if any, on
any Security of such series as and when the same shall become due and
payable whether at maturity, upon redemption, by declaration, repayment or
otherwise; or
(c) default in the making or satisfaction of any sinking fund payment
or analogous obligation as and when the same shall become due and payable
by the terms of the Securities of such series; or
(d) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in respect
of the Securities of such series contained in this Third Amended and
Restated Indenture (other than a covenant or agreement in respect of the
Securities of such series a default in whose observance or performance is
elsewhere in this Section 6.01 specifically dealt with) continued for a
period of 60 days after the date on which written notice of such failure,
requiring the Company to remedy the same, shall have been given to the
Company by the Trustee by registered mail, or to the Company and the
Trustee by the holders of at least
37
twenty-five percent in aggregate principal amount of the Securities of such
series at the time Outstanding; or
(e) an event of default with respect to any other series of Securities
issued pursuant to this Third Amended and Restated Indenture or as defined
in any other indenture or instrument evidencing or under which the Company
has at the date of this Third Amended and Restated Indenture or shall
hereafter have outstanding any indebtedness for borrowed money shall happen
and be continuing and such other series of Securities or such indebtedness,
as the case may be, shall have been accelerated so that the same shall be
or become due and payable prior to the date on which the same would
otherwise have become due and payable, and such acceleration shall not be
rescinded or annulled within ten days after written notice of such
acceleration shall have been given to the Company by the Trustee or to the
Company and the Trustee by the holders of at least twenty-five percent in
aggregate principal amount of such Securities at the time Outstanding or
within ten days after written notice of such acceleration shall have been
given to the Company pursuant to the terms of such other indenture or
instrument, as the case may be; provided, however, that if such event of
-------- -------
default with respect to such other series of Securities or under such other
indenture or instrument, as the case may be, shall be remedied or cured by
the Company, or waived by the holders of such other series of Securities or
of such other indebtedness, as the case may be, then the Event of Default
hereunder by reason thereof shall be deemed likewise to have been thereupon
remedied, cured or waived without further action upon the part of either
the Trustee or any of the Securityholders of such series; and provided
--------
further that, subject to the provisions of Sections 6.08 and 7.01, the
-------
Trustee shall not be charged with knowledge of any such event of default or
any remedy, cure or waiver thereof or any such acceleration unless written
notice thereof shall have been given to the Trustee by the Company, by a
holder or an agent of a holder of any Securities of such other series or of
any such other indebtedness, as the case may be, or by the Trustee then
acting under this Third Amended and Restated Indenture with respect to such
other series of Securities or under any other indenture or instrument, as
the case may be, under which such event of default shall have occurred, or
by the holders of at least twenty-five percent in aggregate principal
amount of
38
the Securities of such series at the time Outstanding; or
(f) a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of the
Company under the Federal Bankruptcy Code or any other similar applicable
Federal or State law, and such decree and order shall have continued
undischarged and unstayed for a period of 60 days; or a decree or order of
a court having jurisdiction in the premises for the appointment of a
receiver or liquidator or trustee or assignee (or other similar official)
in bankruptcy or insolvency of the Company or of all or substantially all
of its property, or for the winding up or liquidation of its affairs, shall
have been entered, and such decree or order shall have continued
undischarged and unstayed for a period of 60 days; or
(g) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization under the Federal Bankruptcy Code or any other
similar applicable Federal or State law, or shall consent to the filing of
any such petition, or shall consent to the appointment of a receiver or
liquidator or trustee or assignee (or other similar official) in bankruptcy
or insolvency of it or of all or substantially all of its property, or
shall make an assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become due; or
(h) any other Event or Default provided in the applicable resolution
of the Board of Directors or in the supplemental indenture under which such
series of Securities is issued, as the case may be, as contemplated by
Section 2.02.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then and in each and every case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the holders of not less than
twenty-five percent in aggregate principal amount of the Securities of such
series then Outstanding hereunder, by notice in writing to the Company
39
(and to the Trustee if given by Securityholders of such series), may declare the
principal amount (or, if the Securities of such series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the certificates evidencing the Securities of such series) of all the Securities
of such series to be due and payable immediately, and upon any such declaration
the same shall become and shall be immediately due and payable, anything in this
Third Amended and Restated Indenture or in such Securities contained to the
contrary notwithstanding. This provision, however, is subject to the condition
that if, at any time after the principal amount (or, if such Securities are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the certificates evidencing the Securities of such series) of
the Securities of any series shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest, if any, upon all such Securities and the principal of, and premium, if
any, on any and all such Securities which shall have become due otherwise than
by acceleration (with interest on overdue installments of interest (to the
extent that payment of such interest is enforceable under applicable law) and on
such principal at the Overdue Rate applicable to such series, to the date of
such payment or deposit) and all amounts payable to the Trustee pursuant to the
provisions of Section 7.06, and any and all defaults under this Third Amended
and Restated Indenture with respect to such series of Securities, other than the
nonpayment of principal of and accrued interest on such Securities which shall
have become due solely by acceleration, shall have been remedied or cured or
waived or provision shall have been made therefor to the satisfaction of the
Trustee -- then and in every such case the holders of a majority in aggregate
principal amount of the Securities of such series then Outstanding, by written
notice to the Company and to the Trustee, may waive all defaults with respect to
such series and rescind and annul such declaration and its consequences; but no
such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Third Amended and Restated Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to
40
the Trustee, then and in every such case the Company and the Trustee shall be
restored respectively to their several positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee shall continue as
though no such proceedings had been taken.
Section 6.02. Payment of Securities on Default; Suit Therefor. The
-----------------------------------------------
Company covenants that (a) in case default shall be made in the payment of any
installment of interest upon any Security as and when the same shall become due
and payable, and such default shall have continued for a period of 30 days, (b)
in case default shall be made in the payment of the principal of, or premium, if
any, on any Security as and when the same shall become due and payable, whether
at maturity of such Security or upon redemption or by declaration, repayment or
otherwise or (c) in case of default in the making or satisfaction of any sinking
fund payment or analogous obligation when the same becomes due by the terms of
the Securities of any series -- then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holder of any such Security (or
holders of any series of Securities in the case of clause (c) above) the whole
amount that then shall have become due and payable on any such Security (or
Securities of any such series in the case of clause (c) above) for principal,
premium, if any, and interest, if any, with interest upon the overdue principal
and premium, if any, and (to the extent that payment of such interest is
enforceable under applicable law) upon the overdue installments of interest, if
any, at the Overdue Rate applicable to any such Security (or Securities of any
such series in the case of clause (c) above); and, in addition thereto, such
further amount as shall be sufficient to cover costs and expenses of collection,
and any further amounts payable to the Trustee pursuant to the provisions of
Section 7.06.
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 actions or proceedings 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 such
Securities and collect in the manner provided by law out of the property of the
Company or any other obligor on such Securities wherever situated the moneys
adjudged or decreed to be payable.
41
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Securities of any
series under the Federal Bankruptcy Code or any other similar applicable Federal
or State law, or in case a receiver or trustee (or other similar official) shall
have been appointed for the property of the Company or such other obligor, or in
the case of any other similar judicial proceedings relative to the Company or
other obligor on any Securities, or to the creditors or property of the Company
or such other obligor, the Trustee, irrespective of whether the principal of any
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section 6.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal (or, if any Securities are
Original Issue Discount Securities, such portion of the principal amount as may
be due and payable with respect to such Securities pursuant to a declaration in
accordance with Section 6.01), premium, if any, and interest, if any, owing and
unpaid in respect of any Securities and, in the case of any judicial
proceedings, to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee and of the
Securityholders allowed in such judicial proceedings relative to the Company or
any other obligor on any Securities, its or their creditors, or its or their
property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of costs and expenses of collection, and any further amounts payable to the
Trustee pursuant to the provisions of Section 7.06 and incurred by it up to the
date of such distribution; and any receiver, assignee or trustee (or other
similar official) in bankruptcy or reorganization is hereby authorized by each
of the Securityholders to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee costs and expenses of collection and any
further amounts payable to the Trustee pursuant to the provisions of Section
7.06 and incurred by it up to the date of such distribution.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting any of
the Securities or the rights of any holder
42
▇▇▇▇▇▇▇, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
All rights of action and of asserting claims under this Third Amended
and Restated Indenture, or under any Securities or Coupons appertaining to such
Securities, may be enforced by the Trustee without the possession of such
Securities or Coupons or the production thereof in any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the holders of the
Securities or Coupons appertaining to such Securities in respect of which such
action was taken. In any proceedings brought by the Trustee (and also any
proceedings in which a declaratory judgment of a court may be sought as to the
interpretation or construction of any provision of this Third Amended and
Restated Indenture, to which the Trustee shall be a party), the Trustee shall be
held to represent all the holders of the Securities or Coupons appertaining to
such Securities to which such proceedings relate, and it shall not be necessary
to make any holders of such Securities or Coupons appertaining to such
Securities parties to any such proceedings.
Section 6.03. Application of Moneys Collected by Trustee. Any moneys
------------------------------------------
collected by the Trustee pursuant to this Article Six shall be applied in the
order following, at the date or dates fixed by the Trustee for the distribution
of such moneys, upon presentation of the several Securities and Coupons
appertaining to such Securities in respect of which moneys have been collected,
and the notation thereon of the payment if only partially paid, and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee pursuant to the
provisions of Section 7.06;
SECOND: In case the principal of the Outstanding Securities in
respect of which such moneys have been collected shall not have become due
(at maturity, upon redemption, by declaration, repayment or otherwise) and
be unpaid, to the payment of interest, if any, on such Securities, in the
order of the maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by Trustee) upon the
overdue installments of interest at the Overdue Rate applicable to such
Securities, such payments to be made ratably to the Persons entitled
thereto;
43
THIRD: In case the principal of the Outstanding Securities in respect
of which such moneys have been collected shall have become due (at
maturity, upon redemption, by declaration, repayment or otherwise), to the
payment of the whole amount then owing and unpaid upon such Securities for
principal, premium, if any, and interest, if any, with interest on the
overdue principal, premium, if any, and (to the extent that such interest
has been collected by the Trustee) overdue installments of interest, if
any, at the Overdue Rate applicable to such Securities; and in case such
moneys shall be insufficient to pay in full the whole amounts so due and
unpaid upon such Securities, then to the payment of such principal,
premium, if any, and interest, if any, without preference or priority of
principal and premium, if any, over interest, if any, or of interest, if
any, over principal, and premium, if any, or of any installment of
interest, if any, over any other installment of interest, if any, or of any
such Security over any other such Security, ratably to the aggregate of
such principal, premium, if any, and accrued and unpaid interest, if any;
and
FOURTH: To the payment of the remainder, if any, to the Company, its
successors or assigns, or to whosoever may be lawfully entitled to receive
the same, or as a court of competent jurisdiction may direct.
44
Section 6.04. Proceedings by Securityholders. No holder of any
------------------------------
Security or of any Coupon appertaining thereto shall have any right by virtue of
or by availing of any provision of this Third Amended and Restated Indenture to
institute any suit, action or proceeding to the extent lawful in equity or at
law upon or under or with respect to this Third Amended and Restated Indenture
or for the appointment of a receiver or trustee (or other similar official), or
for any other remedy hereunder, unless such holder previously shall have given
to the Trustee written notice of default with respect to such series of
Securities and of the continuance thereof, as hereinbefore provided, and unless
also the holders of not less than twenty-five percent in aggregate principal
amount of the Securities of such series then Outstanding shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding, it being understood and intended,
and being expressly covenanted by the taker and holder of every Security or
Coupon with every other taker and holder and the Trustee, that no one or more
holders of Securities of such series or Coupons appertaining to such Securities
shall have any right in any manner whatever by virtue of or by availing of any
provision of this Third Amended and Restated Indenture to affect, disturb or
prejudice the rights of any other holder of Securities of such series or Coupons
appertaining to such Securities, or to obtain or seek to obtain priority over or
preference to any other such holder or to enforce any right under this Third
Amended and Restated Indenture, except in the matter herein provided and for the
equal, ratable and common benefit of all holders of Securities of such series
and Coupons appertaining to such Securities.
Notwithstanding any other provisions in this Third Amended and
Restated Indenture, however, the right of any holder of any Security or Coupon
to receive payment of the principal of, premium, if any, and interest, if any,
on such Security or Coupon, on or after the respective due dates expressed in
such Security or Coupon, or upon redemption, by declaration, repayment or
otherwise, or to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such holder, and no provision of the
45
Securities of any series or Coupons appertaining to such Securities or of this
Third Amended and Restated Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest, if any, on such Securities and Coupons at the respective
places, at the respective times, at the respective rates and in the coin or
currency, therein and herein prescribed.
Section 6.05. Proceedings by Trustee. In case of an Event of Default
----------------------
hereunder, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Third Amended and Restated Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either by suit in equity or by action at
law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Third Amended and
Restated Indenture or in aid of the exercise of any power granted in this Third
Amended and Restated Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Third Amended and Restated Indenture or by law.
Section 6.06. Remedies Cumulative and Continuing. All powers and
----------------------------------
remedies given by this Article Six to the Trustee or to the holders of the
Securities of any series or Coupons appertaining to such Securities shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
holders of such Securities or Coupons, by judicial proceedings or otherwise, to
enforce the performance or observance of the covenants and agreements contained
in this Third Amended and Restated Indenture, and no delay or omission of the
Trustee or of any holder of any such Securities or Coupons to exercise any right
or power accruing upon any default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the provisions of Section
6.04, every power and remedy given by this Article Six or by law to the Trustee
or to the holders of the Securities of any series or Coupons appertaining to
such Securities may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the holders of such Securities or
Coupons.
Section 6.07. Direction of Proceedings and Waiver of Defaults by
--------------------------------------------------
Securityholders. The holders of a majority in aggregate principal amount of the
---------------
Securities of any
46
series at the time Outstanding shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series; provided, however, that (subject to the provisions of
-------- -------
Section 7.01) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the action
or proceeding so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees and/or Responsible Officers shall determine
that the action or proceeding so directed 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
Securities at the time Outstanding may on behalf of the holders of all such
Securities and all Coupons appertaining thereto waive any past default or Event
of Default with respect to such Securities and all Coupons appertaining thereto
and its consequences except a default in the payment of interest, if any, on, or
the principal of or premium, if any, on any Security of such series or any
Coupon appertaining thereto, or in the payment of any sinking fund installment
or analogous obligation with respect to such Securities or Coupons, or in
respect of a covenant or provision hereof which under Section 10.02 cannot be
modified or amended without the consent of the holder of each Security or Coupon
affected. Upon any such waiver the Company, the Trustee and the holders of such
Securities and Coupons shall be restored to their former position 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 6.07, said default or Event of Default shall for all
purposes of the Securities of such series and all Coupons appertaining thereto
and this Third Amended and Restated Indenture be deemed to have been cured and
to be not continuing.
Section 6.08. Notice of Defaults. The Trustee shall, within 90 days
------------------
after the occurrence of a default with respect to the Securities of any series,
give notice of all defaults with respect to that series known to a Responsible
Officer of the Trustee (i) if any Unregistered Securities of that series are
then Outstanding, to the holders thereof and of all Coupons appertaining
thereto, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York at least once in an Authorized
47
Newspaper in London and, if any such Unregistered Securities are listed on the
Luxembourg Stock Exchange, at least once in an Authorized Newspaper in
Luxembourg and (ii) to all holders of Securities of such series and of all
Coupons appertaining thereto in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act of 1939, unless such defaults shall have been
cured before the giving of such notice (the term "defaults" for the purpose of
this Section 6.08 being hereby defined to be the events specified in Section
6.01 or established with respect to such Securities as contemplated by Section
2.02, not including the periods of grace, if any, provided for therein or
established with respect to such Securities as contemplated by Section 2.02 and
irrespective of the giving of the notices specified in clauses (d) and (e) of
Section 6.01 or established with respect to such Securities as contemplated by
Section 2.02); provided, however, that except in the case of default in the
-------- -------
payment of the principal of, premium, if any, or interest, if any, on any of the
Securities of such series or in the making of any sinking fund installment or
analogous obligation with respect to such Securities, 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 and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the holders of such Securities and the Coupons
appertaining thereto.
Section 6.09. Undertaking to Pay Costs. All parties to this Third
------------------------
Amended and Restated Indenture agree, and each holder of any Security or Coupon
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Third Amended and Restated Indenture, or in any suit against the
Trustee for any action taken, omitted or suffered by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 6.09 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any holder of
Securities or group of such holders, holding in the aggregate more than twenty-
five percent in principal amount of the Outstanding Securities of such series or
to any suit instituted by any Securityholder for the enforcement of the payment
of the principal of, premium, if any, or interest,
48
if any, on any Security on or after the due date expressed in such Security, on
or after the date fixed for redemption or repayment or after such Security shall
have become due by declaration.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01. Duties and Responsibilities of Trustee. With respect
--------------------------------------
to the holders of any series of Securities issues hereunder, the Trustee, prior
to the occurrence of any Event of Default with respect to the Securities of such
series and after the curing or waiving of all Events of Default which may have
occurred with respect to such series, undertakes to perform such duties and only
such duties as are specifically set forth in this Third Amended and Restated
Indenture. In case an Event of Default with respect to the Securities of a
series has occurred (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Third Amended and
Restated Indenture with respect to such series, and use the same degree of care
and skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
No provision of this Third Amended and Restated Indenture shall be
construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
Securities of a series and after the curing or waiving of all Events of
Default with respect to such series which may have occurred:
(1) the duties and obligations of the Trustee with respect to the
Securities shall be determined solely by the express provisions of
this Third Amended and Restated Indenture, and the Trustee shall not
be liable except for the performance of such duties and obligations as
are specifically set forth in this Third Amended and Restated
Indenture, and no implied covenants or obligations shall be read into
this Third Amended and Restated Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely,
49
as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Third Amended and
Restated Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Third Amended and Restated Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken,
omitted or suffered to be taken by it in good faith in accordance with the
direction of the holders of Securities of any series pursuant to Section
6.07 relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Third Amended and Restated Indenture
with respect to such Securities.
None of the provisions of this Third Amended and Restated Indenture
shall be construed as requiring the Trustee to expend or risk its own funds or
otherwise to incur any personal financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if
there shall be reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
The provisions of this Section 7.01 are in furtherance of and subject
to Section 315 of the Trust Indenture Act of 1939.
Section 7.02. Reliance on Documents, Opinions, etc. In furtherance
-------------------------------------
of and subject to the Trust Indenture Act of 1939, and subject to the provisions
of Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
50
direction, consent, order or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an instrument
signed in the name of the Company by its President, its Chairman of
the Board or any Vice President (including any Executive or Senior
Vice President) and its Senior Vice President-Corporate Treasury and
Global Funding Operation or its Controller (unless other evidence in
respect thereof be herein specifically prescribed); and any resolution
of the Board of Directors of the Company may be evidenced to the
Trustee by a copy thereof certified by the Secretary, an Assistant
Secretary or an Attesting Secretary of the Company;
(c) the Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, omitted or suffered to be
taken by it hereunder in good faith and in accordance with such advice
or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Third Amended and Restated
Indenture at the request, order or direction of any of the
Securityholders, pursuant to the provisions of this Third Amended and
Restated Indenture, unless such Securityholder shall have offered
reasonable security and indemnity satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken,
omitted or suffered by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Third Amended and Restated Indenture;
(f) the Trustee shall not be bound to make any inquiry or
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
51
request, direction, consent, order, bond, note or other paper or
document unless requested in writing so to do by the holders of a
majority in aggregate principal amount of the Securities of any series
affected then Outstanding; provided, however, that if the payment
-------- -------
within a reasonable time to the Trustee of the costs and expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security conferred upon it by the terms
of this Third Amended and Restated Indenture, the Trustee may require
reasonable indemnity against such costs, expenses or liabilities as a
condition to so proceeding; and the reasonable expenses of such
investigation shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through
agents or attorneys, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 7.03. No Responsibility for Recitals, etc. The recitals
------------------------------------
contained herein and in the Securities shall be taken as the statements of the
Company (except in the Trustee's certificates of authentication), and the
Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of this Third Amended
and Restated Indenture or of the Securities or Coupons, provided that the
--------
Trustee shall not be relieved of its duty to authenticate Securities only as
authorized by this Third Amended and Restated Indenture. The Trustee shall not
be accountable for the use or application by the Company of any of the
Securities or of the proceeds thereof.
Section 7.04. Ownership of Securities. The Trustee and any agent of
-----------------------
the Company or of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities or Coupons with the same rights it
would have if it were not Trustee or such agent.
Section 7.05. Moneys to be Held in Trust. Subject to the provisions
--------------------------
of Sections 4.04, 12.03 and 12.04, all moneys received by the Trustee or any
paying agent
52
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. Neither the Trustee nor any paying
agent shall be under any liability for interest on any moneys received by it
hereunder except such as it may agree in writing with the Company to pay
thereon. So long as no Event of Default shall have occurred and be continuing,
all interest allowed on any such moneys shall be paid from time to time upon the
written order of the Company, signed by its President, Chairman or any Vice
Chairman of the Board, or any Vice President (including any Executive or Senior
Vice President), the Senior Vice President-Corporate Treasury and Global Funding
Operation or Controller.
Section 7.06. Compensation and Expenses of Trustee. The Company
------------------------------------
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and, except as otherwise expressly provided, the Company will pay or reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the
provisions of this Third Amended and Restated Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all Persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the part
of the Trustee, arising out of or in connection with the acceptance or
administration of this trust and its duties hereunder, including the costs and
expenses of defending itself against any claim of liability in the premises.
The obligations of the Company under this Section 7.06 to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Third Amended and
Restated Indenture.
Section 7.07. Officers' Certificate as Evidence. Subject to the
---------------------------------
provisions of Sections 7.01 and 7.02, whenever in the administration of the
provisions of this Third Amended and Restated Indenture the Trustee shall deem
it necessary or desirable that a matter be proved or established prior to
taking, omitting or suffering any
53
action to be taken hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
Certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, omitted or
suffered by it under the provisions of this Third Amended and Restated Indenture
upon the faith thereof.
Section 7.08. Indentures Not Creating Potential Conflicting Interests
-------------------------------------------------------
for the Trustee. The following indentures are hereby specifically described for
---------------
the purposes of Section 310(b)(1) of the Trust Indenture Act of 1939: (a) this
Third Amended and Restated Indenture with respect to the Securities of any other
series; (b) the indenture dated as of October 1, 1991, between the Company and
the Trustee; (c) the indenture dated as of February 1, 1994, between the Company
and the Trustee; (d) the indenture dated as of November 1, 1981, between the
Company and the Trustee; (e) the indenture dated as of April 1, 1991, between
the Company and the Trustee; (f) the indenture dated as of August 1, 1995,
between the Company and the Trustee; and (g) the indenture dated as June 3,
1994, between the Company and the Trustee.
Section 7.09. Eligibility of Trustee. The Trustee hereunder shall at
----------------------
all times be a corporation organized and doing business under the laws of the
United States or any State, which (a) is authorized under such laws to exercise
corporate trust powers and (b) is subject to supervision or examination by
Federal or State authority and (c) shall have at all times a combined capital
and surplus of not less than $10,000,000. If such corporation publishes reports
of condition at least annually, pursuant to law, or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 7.09, the combined capital and surplus of such corporation at any time
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section 7.09, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 7.10.
The provisions of this Section 7.09 are in furtherance of and subject
to Section 310(a) of the Trust Indenture Act of 1939.
54
Section 7.10. Resignation or Removal of Trustee. The Trustee, or any
---------------------------------
Trustee or Trustees hereafter appointed, may at any time resign with respect to
any one or more or all series of Securities by giving written notice of
resignation to the Company and (i) if any Unregistered Securities of a series
affected are then Outstanding, by giving notice of such resignation to the
holders thereof, by publication at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York, at least once in an Authorized
Newspaper in London and, if any such Unregistered Securities are listed on the
Luxembourg Stock Exchange, at least once in an Authorized Newspaper in
Luxembourg, (ii) if any Unregistered Securities of a series affected are then
Outstanding, by mailing notice of such resignation to the holders thereof who
have filed their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act of 1939, at such addresses as were so
furnished to the Trustee and (iii) by mailing notice of such resignation to the
holders of then Outstanding Registered Securities of each series affected at
their addresses as they shall appear on the registry books of the Company. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor Trustee or Trustees with respect to the applicable series by written
instrument, in duplicate, executed in the name of and on behalf of the Company
by a duly authorized officer, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor Trustee. If no successor
Trustee shall have been so appointed with respect to any series and have
accepted appointment within 60 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any Securityholder
who has been a bona fide holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section 6.09,
on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor Trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a successor
Trustee.
(b) In case at any time any of the following shall occur --
(1) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act of 1939 with respect to any series of
Securities after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a
55
Security or Securities of such series for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and Section 310(a) of the Trust Indenture Act of
1939 with respect to any series of Securities and shall fail to resign
after written request therefor by the Company or by any such
Securityholder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation --
then, in any such case, the Company may remove the Trustee with respect to such
series and appoint a successor Trustee with respect to such series by written
instrument, in duplicate, executed in the name of and on behalf of the Company
by a duly authorized officer, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor Trustee, or, subject to the
provisions of Section 315(e) of the Trust Indenture Act of 1939, any
Securityholder who has been a bona fide holder of a Security or Securities of
such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee with respect to such
series. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor Trustee with
respect to such series.
(c) The holders of a majority in aggregate principal amount of the
Securities of one or more series (each series voting as a class) or all series
at the time Outstanding may remove the Trustee with respect to the applicable
series or all series, as the case may be, and appoint with respect to the
applicable series or all series, as the case may be, a successor Trustee by
written notice of such action to the Company, the Trustee and the successor
Trustee.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor Trustee with respect to such series
pursuant to any of the provisions of this Section 7.10 shall become
56
effective upon acceptance of appointment by the successor Trustee as provided in
Section 7.11.
(e) No predecessor Trustee shall be liable for the acts or omissions
of any successor Trustee.
Section 7.11. Acceptance by Successor Trustee. Any successor Trustee
-------------------------------
appointed as provided in Section 7.10 shall execute, acknowledge and deliver to
the Company and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee with respect to any or all applicable series shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as Trustee herein; but, nevertheless, on the
written request of the Company or of the successor Trustee, the Trustee ceasing
to act shall, upon payment (or due provision therefor) of any amounts then due
it pursuant to the provisions of Section 7.06, execute and deliver an instrument
transferring to such successor Trustee all the rights and powers with respect to
such series of the Trustee so ceasing to act. Upon request of any such
successor Trustee, the Company shall execute any and all instruments in writing
in order more fully and certainly to vest in and confirm to such successor
Trustee all such rights and powers.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
predecessor Trustee and each successor Trustee with respect to the Securities of
any applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and shall add to or change any of the provisions of this Third Amended and
Restated Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be Trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee.
57
No successor Trustee with respect to a series of Securities shall
accept appointment as provided in this Section 7.11 unless at the time of such
acceptance such successor Trustee shall, with respect to such series, be
qualified under Section 310(b) of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 7.09.
Upon acceptance of appointment by a successor Trustee with respect to
any series as provided in this Section 7.11, the Company shall give notice
thereof (a) if any Unregistered Securities of a series affected are then
Outstanding, to the holders thereof, by publication of such notice at least once
in an Authorized Newspaper in the Borough of Manhattan, The City of New York, at
least once in an Authorized Newspaper in London and, if any such Unregistered
Securities are listed on the Luxembourg Stock Exchange, at least once in an
Authorized Newspaper in Luxembourg, (b) if any Unregistered Securities of a
series affected are then Outstanding, to the holders thereof who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of the
Trust Indenture Act of 1939, by mailing such notice to such holders at such
addresses as were so furnished to the Trustee (and the Trustee shall make such
information available to the Company for such purpose) and (c) to the holders of
Registered Securities of each series affected, by mailing such notice to such
holders at their addresses as they shall appear on the registry books of the
Company. If the Company fails to mail such notice within ten days after the
acceptance of appointment by the successor Trustee, the successor Trustee shall
cause such notice to be given at the expense of the Company.
Section 7.12. Succession by ▇▇▇▇▇▇, etc. Any corporation into which
--------------------------
the Trustee may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to the corporate
trust business of the Trustee, shall be the successor to the Trustee hereunder,
provided such corporation shall be qualified under Section 310(b) of the Trust
Indenture Act of 1939, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trust created by this Third Amended and Restated Indenture with respect to one
or more series of
58
Securities, any of such securities shall have been authenticated but not
delivered, any such successor to the Trustee by merger, conversion or
consolidation may adopt the certificate of authentication of any predecessor
Trustee, and deliver such Security so authenticated; and in case at that time
any of such Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of such successor to
the Trustee or, if such successor to the Trustee is a successor by merger,
conversion or consolidation, the name of any predecessor hereunder; and in all
such cases such certificate shall have the full force which it is anywhere in
such Securities or in this Third Amended and Restated Indenture provided that
the certificate of the Trustee shall have.
Section 7.13. Appointment of Authenticating Agent. The Trustee may
-----------------------------------
appoint an Authenticating Agent or Agents which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon original issue and
upon exchange, registration of transfer, partial conversion or partial
redemption or pursuant to Section 2.07 and Securities so authenticated shall be
entitled to the benefits of this Third Amended and Restated Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Third Amended and Restated
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $10,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section 7.13, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 7.13, such
59
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section 7.13.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 7.13, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 7.13, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and (i) if any
Unregistered Securities are then Outstanding, shall publish notice of such
appointment at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, at least once in an Authorized Newspaper in
London, and, if any Unregistered Securities are listed on the Luxembourg Stock
Exchange, at least one in an Authorized Newspaper in Luxembourg and (ii) shall
mail written notice of such appointment by first-class mail, postage prepaid, to
all holders of Securities as their names and addresses appear in the Security
register. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 7.13.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 7.13.
60
If an appointment is made pursuant to this Section 7.13, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternative certificate of authentication in the following
form:
Dated:
This is one of the Notes referred to in the within-mentioned
Indenture.
The CHASE MANHATTAN BANK,
As Trustee
[AUTHENTICATING AGENT],
As Authenticating Agent
By________________________,
Authorized Signatory
--------------------
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01. Action by Securityholders. Whenever in this Third
-------------------------
Amended and Restated Indenture it is provided that the holders of a specified
percentage in aggregate principal amount of the Securities of any or all series
may take any action (including the making of any demand or request, the giving
of any notice, consent or waiver or the taking of any other action) the fact
that at the time of taking any such action the holders of such specified
percentage have joined therein may be evidenced (a) by any instrument or any
number of instruments of similar tenor executed by such Securityholders in
person or by agent or proxy appointed in writing, or (b) by the record of such
holders of Securities voting in favor thereof at any meeting of such
Securityholders duly called and held in accordance with the provisions of
Article Nine, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of such Securityholders.
Section 8.02. Proof of Execution by Securityholders. Subject to the
-------------------------------------
provisions of Sections 7.01, 7.02 and 9.05, the execution of any instrument by a
Securityholder or his agent or proxy may be proved in the
61
following manner: The fact and date of the execution by any holder of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgements of deeds or
administer oaths that the Person executing such instruments acknowledged to him
the execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or other such officer. Where such execution is by or
on behalf of any legal entity other than an individual, such certificate or
affidavit shall also constitute sufficient proof of the authority of the Person
executing the same. The fact of the holding by any holder of an Unregistered
Security, and the identifying number of such Security and the date of his
holding the same, may be proved by the production of such Security or by a
certificate executed by any trust company, bank, banker or recognized securities
dealer wherever situated satisfactory to the Trustee if such certificate shall
be deemed by the Trustee to be satisfactory. Each such certificate shall be
dated and shall state that on the date thereof a Security of such series bearing
a specified identifying number was deposited with or exhibited to such trust
company, bank, banker or recognized securities dealer by the Person named in
such certificate. Any such certificate may be issued in respect of one or more
Unregistered Securities of one or more series specified therein. The holding by
the Person named in any such certificate of any Unregistered Securities of any
series specified therein shall be presumed to continue for a period of one year
from the date of such certificate unless at the time of any determination of
such holding (1) another certificate bearing a later date issued in respect of
the same Securities shall be produced, or (2) the Security specified in such
certificate shall be produced by some other Person, or (3) the Security
specified in such certificate shall have ceased to be Outstanding. Subject to
Sections 7.01 and 7.02, the fact and date of the execution of any such
instrument and the amount and numbers of Securities held by the Person so
executing such instrument and the amount and numbers of any Security or
Securities may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee for the relevant series or in
any other manner which the Trustee for such series may deem sufficient.
The ownership of Registered Securities shall be proved by the registry
books of the Company or by a certificate of the Person designated by the Company
to act as repository in accordance with the provisions of Section 2.06.
62
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 9.07.
The Company may set a record date for purposes of determining the
identity of holders of Registered Securities of any series entitled to vote or
consent to any action referred to in Section 8.01, which record date may be set
at any time or from time to time by notice to the Trustee, for any date or dates
(in the case of any adjournment or reconsideration) not more than 60 days nor
less than five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, with respect to
Registered Securities of any series, only holders of Registered Securities of
such series of record on such record date shall be entitled to so vote or give
such consent or revoke such vote or consent.
Section 8.03. Who are Deemed Absolute Owners. The Company, the
------------------------------
Trustee and any agent of the Company or of the Trustee may deem the Person in
whose name any Registered Security shall be registered upon the books of the
Company to be, and may treat such Person as, the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation
of ownership or other writing thereon) for the purpose of receiving payment of
or on account of the principal of, premium, if any, and interest, if any, on
such Security and for all other purposes; and neither the Company nor the
Trustee nor any agent of the Company or of the Trustee shall be affected by any
notice to the contrary. The Company, the Trustee and any agent of the Company
or the Trustee may treat the holder of the Unregistered Security and the holder
of any Coupon as the absolute owner of such Unregistered Security or Coupon
(whether or not such Unregistered Security or Coupon shall be overdue) for the
purpose of receiving payment thereof or on account thereof and for all other
purposes and neither the Company, the Trustee, nor any agent of the Company or
the Trustee shall be affected by any notice to the contrary. All such payments
so made to any holder for the time being, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Security or Coupon.
Section 8.04. Company-Owned Securities Disregarded. In determining
------------------------------------
whether the holders of the requisite aggregate principal amount of Securities
have concurred in any demand, request, notice, direction, consent or waiver
under this Third Amended and Restated Indenture, Securities which are owned by
the Company or any other
63
obligor on the Securities with respect to which such determination is being made
or by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any other obligor on the
Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination; provided, that for the purposes of determining whether the
--------
Trustee shall be protected in relying on any such demand, request, notice,
direction consent or waiver, only Securities which a Responsible Officer of the
Trustee knows are so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding for the purposes
of this Section 8.04 if the pledgee shall establish to the satisfaction of the
Trustee the pledgee's right to vote such Securities and that the pledgee is not
a Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company of any such other obligor. In the case
of a dispute as to such right, any decision by the Trustee taken upon the advice
of counsel shall be full protection to the Trustee.
Section 8.05. Revocation of Consents; Future Holders Bound. At any
--------------------------------------------
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Third Amended and Restated 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 8.02, 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, irrespective of whether or not any notation in
regard thereto is made upon such Security or any Security issued in exchange or
substitution therefor.
64
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
Section 9.01. Purposes of Meetings. A meeting of holders of
--------------------
Securities 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:
(1) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to
be taken by Securityholders pursuant to any of the provisions of Article
Six;
(2) to remove the Trustee and nominate a successor Trustee pursuant to
the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of the Securities
of any or all series, as the case may be, under any other provision of this
Third Amended and Restated Indenture or under applicable law.
Section 9.02. Call of Meeting by Trustee. The Trustee may at any
--------------------------
time call a meeting of holders of Securities of any or all series to take any
action specified in Section 9.01, to be held at such time and at such place as
the Trustee shall determine. Notice of every meeting of the holders of
Securities of any or all 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 given (i) if any Unregistered Securities of a series affected are then
Outstanding, by giving notice of such meeting to the holders thereof, by
publication at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, at least once in an Authorized Newspaper in
London, and, if any such Unregistered Securities are listed on the Luxembourg
Stock Exchange, at least one in an Authorized Newspaper in Luxembourg, (ii) if
any Unregistered Securities of a series affected are then Outstanding, by
mailing notice of such a meeting to the holders thereof who have filed their
names and addresses with the Trustee
65
pursuant to Section 313(c)(2) of the Trust Indenture Act of 1939 at such
addresses as were so furnished to the Trustee and (iii) by mailing notice of
such meeting to the holders of then Outstanding Registered Securities of each
series affected at their addresses as they shall appear on the registry books of
the Company. Such notice shall be given not less than 10 nor more than 90 days
prior to the date fixed for the meeting.
Section 9.03. Call of Meeting by Company or Securityholders. In case
---------------------------------------------
at any time a duly authorized officer of the Company in the name of and on
behalf of the Company or the holders of at least ten percent in aggregate
principal amount of the Securities then Outstanding of any series that may be
affected by the action proposed to be taken at the meeting, shall have requested
the Trustee to call a meeting of the holders of Securities of all series that
may be so affected, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have given
the notice of such meeting within 20 days after receipt of such request, then
the Company or such Securityholders, in the amount specified above, may
determine the time and the place for such meeting and may call such meeting to
take any action authorized in Section 9.01, by giving notice thereof as provided
in Section 9.02.
Section 9.04. Qualifications for Voting. To be entitled to vote at
-------------------------
any meeting of Securityholders, a Person shall (a) be a holder of one or more
Securities with respect to which such meeting is being held or (b) be a Person
appointed by an instrument in writing as proxy by a holder of one or more such
Securities. The only Persons who shall be entitled to be present or to speak at
any meeting of Securityholders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
Section 9.05. Quorum; Adjourned Meetings. The Persons entitled to
--------------------------
vote a majority in aggregate principal amount of the Securities of the relevant
series at the time Outstanding shall constitute a quorum for the transaction of
all business specified in Section 9.01. No business shall be transacted in the
absence of a quorum (determined as provided in this Section 9.05). In the
absence of a quorum within 30 minutes after the time appointed for any such
meeting, the meeting shall, if convened at the request of the holders of
Securities (as provided in Section 9.03), be dissolved. In any other case the
meeting shall be adjourned
66
for a period of not less than ten days as determined by the chairman of the
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting shall be further adjourned for a period of not less than ten
days as determined by the chairman of the meeting. Notice of the reconvening of
any adjourned meeting shall be given as provided in Section 9.02, except that
such notice need be published only once and must be mailed or published not less
than five days prior to the date on which the meeting is schedule to be
reconvened.
Subject to the foregoing, at the second reconvening of any meeting
adjourned for lack of a quorum, the Persons entitled to vote 25% in aggregate
principal amount of the Securities of the relevant series then Outstanding shall
constitute a quorum for the taking of any action set forth in the notice of the
original meeting. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage of the aggregate principal amount of the Securities of
the relevant series then Outstanding which shall constitute a quorum.
At a meeting or any adjourned meeting duly convened and at which a
quorum is present as aforesaid, any resolution and all matters (except as
limited by the proviso in Section 10.02) shall be effectively passed and decided
if passed or decided by the Persons entitled to vote the lesser of (a) a
majority in aggregate principal amount of the Securities of the relevant series
then Outstanding and (b) 75% in aggregate principal amount of the Securities
represented and voting at the meeting.
Any holder of a Security who has executed in person or by proxy and
delivered to the Trustee an instrument in writing complying with the provisions
of Article Eight shall be deemed to be present for the purposes of determining a
quorum and be deemed to have voted; provided that such holder of a Security
--------
shall be considered as present or voting only with respect to the matters
covered by such instrument in writing.
Section 9.06. Regulations. Notwithstanding any other provisions of
-----------
this Third Amended and Restated 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
67
conduct of the meeting as it shall think fit. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved in
the manner specified in Section 8.02 and the appointment of any proxy shall be
proved in the manner specified in Section 8.02.
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 9.03, 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.
Subject to the provisions of Section 8.04, at any meeting each holder
of Securities with respect to which such meeting is being held or proxy for such
holder shall be entitled to one vote for each $1,000 (or the equivalent thereof
in any foreign or composite currency) of principal amount (in the case of
Original Issue Discount Securities, such principal amount to be determined as
provided in the definition of "Security or Securities; Outstanding" in Section
1.01) of such Securities held or represented by him; provided, however, that no
-------- -------
vote shall be cast or counted at any meeting in respect of any such Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of such Securities held by him or instruments in writing as aforesaid
duly designating him as the Person to vote on behalf of other such
Securityholders. Any meeting of holders of Securities with respect to which a
meeting was duly called pursuant to the provisions of Section 9.02 or 9.03 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 9.07. Voting. The vote upon any resolution submitted to any
------
meeting of holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be subscribed the signatures of
such holder of Securities or of their representatives by proxy and the principal
amount (in the case of Original Issue Discount Securities, such principal amount
to be determined as provided in the definition of "Security or Securities;
Outstanding" in Section 1.01) held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all
68
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 and setting
forth a copy of the notice of the meeting and showing that said notice was given
as provided in Section 9.02. The record will show the principal amount of the
Securities (in the case of Original Discount Securities, such principal amount
to be determined as provided in the definition of "Security or Securities;
Outstanding" in Section 1.01) 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, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 9.08. No Delay of Rights by Meeting. Nothing 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 or all series or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Securityholders of any or all such series under any of the provisions of
this Third Amended and Restated Indenture or of the Securities.
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ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures without Consent of
------------------------------------------
Securityholders. The Company and the Trustee may from time to time and at any
---------------
time enter into an indenture or indentures supplemental hereto for one or more
of the following purposes:
(a) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Company pursuant to
Article Eleven;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the holders of all or any
series of Securities or Coupons appertaining to Unregistered Securities
(and if such covenants are to be for the benefit of less than all
Securities, stating that such covenants are expressly being included for
the benefit of such series) as a duly authorized officer of the Company, on
behalf of the Company, and the Trustee shall consider to be for the
protection of the holders of such Securities or Coupons, and to make the
occurrence, or the occurrence and continuance, of a default in any of such
additional covenants, restrictions or conditions a default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Third Amended and Restated Indenture as herein set forth;
provided, however, that in respect of any such additional covenant,
-------- -------
restriction or condition such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default;
(c) to provide for the issuance under this Third Amended and Restated
Indenture of Securities in coupon form (including Securities registrable as
to principal only) and to provide for exchangeability of such Securities
with the Securities of the same series issued hereunder in fully registered
form and to make all appropriate changes for such purpose;
70
(d) to establish the forms or terms of Securities of any series or of
the Coupons appertaining to such Securities as permitted by Sections 2.01
and 2.02;
(e) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions in regard to
matters or questions arising under this Third Amended and Restated
Indenture which shall not adversely affect the interests of the holders of
any Outstanding Securities or Coupons; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series or to add to or change any of the provisions of this Third
Amended and Restated Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 7.11.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
shall not be obligated to, but may in its discretion, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Third Amended and Restated Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 10.01 may be executed by the Company 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 10.02.
Section 10.02. Supplemental Indentures with Consent of
---------------------------------------
Securityholders. With the consent (evidenced as provided in Sections 8.01 and
---------------
8.02) of the holders of not less than 66-2/3% in aggregate principal amount of
the Outstanding Securities of each series (each series voting as a class) (in
the case of Original Issue Discount Securities, such principal amount to be
determined as provided in the definition of "Security or Securities;
Outstanding" in Section 1.01) affected by such supplemental indenture at the
time Outstanding, the Company and the Trustee may from time
71
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 of the provisions of this Third Amended and Restated Indenture
or of any supplemental indenture or modifying in any manner the rights of the
holders of the Outstanding Securities of each such series or the Coupons
appertaining to such Securities; provided, however, that no such supplemental
-------- -------
indenture shall (i) extend the fixed maturity of any Outstanding Security, or
reduce the rate or extend the time of payment of interest, if any, thereon, or
reduce the principal amount or premium, if any, thereof, or make the principal
thereof or premium, if any, or interest, if any, thereon payable in any coin or
currency other than that provided in any Outstanding Security or Coupon, or
impair the right of any holder of a Security to institute suit for any such
payment, or reduce the amount of the principal of an Outstanding Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof pursuant to Section 6.01 or adversely affect the right of
repayment, if any, at the option of the holder, or extend the time, or reduce
the amount of any payment to any sinking fund or analogous obligation relating
to any Security, (ii) reduce the percentage in principal amount of Outstanding
Securities of any series, the holders of which are required to consent to any
such supplemental indenture or any waiver of any past default or Event of
Default pursuant to Section 6.07 or (iii) modify any provision of Section 6.07
or 10.02 (except to increase any such percentage or to provide that certain
other provisions of this Third Amended and Restated Indenture cannot be modified
or waived without the consent of the holder of each Security so affected)
without, in the case of each of the foregoing clauses (i), (ii) and (iii), the
consent of the holder of each Security so affected. A supplemental indenture
which changes or eliminates any covenant or other provision of this Third
Amended and Restated Indenture which has expressly been included solely for the
benefit of one or more particular series of Outstanding Securities, or which
modifies the rights of the holders of Outstanding Securities of such series or
of Coupons appertaining to such Securities with respect to such covenant or
other provision, shall be deemed not to affect the rights under this Third
Amended and Restated Indenture of the holders of Securities of any other series
or of Coupons appertaining to such Securities.
Upon the request of the Company and upon the filing with the Trustee
of evidence of the consent of Securityholders as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture
72
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Third Amended and Restated Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 10.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 10.03. Compliance with Trust Indenture Act; Effect of
----------------------------------------------
Supplemental Indentures. Any supplemental indenture executed pursuant to the
-----------------------
provisions of this Article Ten shall comply with the Trust Indenture Act of 1939
as then in effect. Upon the execution of any supplemental indenture pursuant to
the provisions of this Article Ten, this Third Amended and Restated Indenture
shall be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Third Amended and Restated Indenture of the Trustee, the Company and
the holders of Securities 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 Third Amended and Restated
Indenture for any and all purposes.
Section 10.04. Notation on Securities. Securities authenticated and
----------------------
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Ten 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 of any series so
modified as to conform, in the opinion of the Trustee and a duly authorized
officer of the Company, to any modification of this Third Amended and Restated
Indenture contained in any such supplemental indenture may be prepared and
executed by the Company, authenticated by the Trustee and delivered in exchange
for the Securities of such series then Outstanding.
Section 10.05. Evidence of Compliance of Supplemental Indenture to be
------------------------------------------------------
Furnished Trustee. The Trustee, subject to the provisions of Sections 7.01 and
-----------------
7.02, shall be entitled to receive an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that any
73
supplemental indenture executed pursuant hereto complies with the requirements
of this Article Ten.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 11.01. Company May Not Consolidate, etc., Except Under
-----------------------------------------------
Certain Conditions. The Company covenants that it will not merge or consolidate
------------------
with any other Person or sell, convey, transfer or otherwise dispose of all or
substantially all of its assets to any other Person, unless (i) either the
Company shall be the continuing corporation, or the successor Person (if other
than the Company) shall be a corporation organized and existing under the laws
of the United States of America or a State thereof and such corporation shall
expressly assume the due and punctual payment of the principal of, and premium,
if any, and interest, if any, on all the Outstanding Securities and Coupons, if
any, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Third Amended and
Restated Indenture to be performed by the Company by supplemental indenture
satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation and (ii) the Company or such successor corporation, as the case may
be, shall not, immediately after such merger or consolidation, or such sale,
conveyance, transfer or other disposition, be in default in the performance of
any such covenant or condition. In the event of any such sale, conveyance
(other than by way of lease), transfer or other disposition, the predecessor
company may be dissolved, wound up and liquidated at any time thereafter.
Section 11.02. Successor Corporation to be Substituted. In case of
---------------------------------------
any such consolidation, merger, sale, conveyance (other than by way of lease),
transfer or other disposition, and upon any such assumption by the successor
corporation, such successor corporation shall succeed to and be substituted for
the Company, with the same effect as if it had been named herein as the Company,
and the Company shall be relieved of any further obligation under this Third
Amended and Restated Indenture and under the Outstanding Securities and Coupons,
if any. Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of General Electric Capital
Corporation, any or all of the Securities issuable hereunder together with any
Coupons appertaining thereto which theretofore shall not have been signed by the
74
Company and delivered to the Trustee; and, upon the order of such successor
corporation, instead of the Company, and subject to all the terms, conditions
and limitations in this Third Amended and Restated Indenture prescribed, the
Trustee shall authenticate and deliver any Securities together with any Coupons
appertaining thereto which previously shall have been signed and delivered by
the officers of the Company to the Trustee for authentication, and any
Securities which such successor corporation thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Securities so issued
together with any Coupons appertaining thereto shall in all respects have the
same legal rank and benefit under this Third Amended and Restated Indenture as
the Securities theretofore or thereafter issued in accordance with the terms of
this Third Amended and Restated Indenture as though all of such Securities and
Coupons appertaining thereto had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, conveyance, transfer
or other disposition, such changes in phraseology and form (but not in
substance) may be made in the Securities and Coupons thereafter to be issued as
may be appropriate.
Section 11.03. Documents to be Given Trustee. The Trustee, subject
-----------------------------
to the provisions of Sections 7.01 and 7.02, shall be entitled to receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, sale, conveyance, transfer or other disposition, and
any such assumption, comply with the provisions of this Article Eleven.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE
75
Section 12.01. Discharge of Indenture. When (a) the Company shall deliver
----------------------
to the Trustee for cancellation all Securities theretofore authenticated and all
unmatured Coupons appertaining thereto (other than any Securities or Coupons
which shall have been destroyed, lost or stolen or in lieu of or in substitution
for which other Securities or Coupons shall have been authenticated and
delivered, or which shall have been paid, pursuant to the provisions of Section
2.07) and not theretofore canceled or (b) all the Securities and all unmatured
Coupons appertaining thereto not theretofore canceled or delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit with the
Trustee, in trust, funds sufficient to pay at maturity or upon redemption all of
the Securities and Coupons appertaining thereto (other than any (i) Securities
or Coupons which shall have been mutilated, destroyed, lost or stolen and in
lieu of or in substitution for which other Securities or Coupons shall have been
authenticated and delivered, or which shall have been paid pursuant to the
provisions of Section 2.07 or (ii) Securities or Coupons for whose payment money
has theretofore been deposited in trust and thereafter repaid to the Company as
provided in Section 12.04) not theretofore canceled or delivered to the Trustee
for cancellation, including principal, premium, if any, and interest, if any,
due or to become due to such date of maturity or date fixed for redemption, as
the case may be, and if in either case the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Third Amended
and Restated Indenture shall cease to be of further effect (except as to (i)
rights of registration of transfer and exchange of Securities, (ii) substitution
of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of
holders to receive payments of principal thereof and interest thereon, and
remaining rights of the holders to receive mandatory sinking fund payments, if
any, (iv) the rights, obligations and immunities of the Trustee hereunder and
(v) the rights of the Securityholders as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them), and
the Trustee, on demand of the Company accompanied by an Officers' Certificate
and an Opinion of Counsel and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this
Third Amended and Restated Indenture, the Company, however, hereby agreeing to
reimburse the Trustee for any costs or expenses thereafter reasonably and
properly
76
incurred by the Trustee in connection with this Third Amended and
Restated Indenture or the Securities or Coupons appertaining thereto.
Section 12.02. Deposited Moneys to be Held in Trust by Trustee. All
-----------------------------------------------
moneys deposited with the Trustee pursuant to the provisions of Section 12.01
shall be held in trust and applied by it to the payment, either directly or
through any paying agent (including the Company if acting as its own paying
agent), to the holders of the particular Securities or Coupons for payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal, premium, if any, and interest,
if any.
Section 12.03. Paying Agent to Repay Moneys Held. Upon the
---------------------------------
satisfaction and discharge of this Third Amended and Restated Indenture, all
moneys then held by any paying agent of the Securities (other than the Trustee)
shall, upon demand of the Company, be repaid to it or paid to the Trustee, and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
Section 12.04. Return of Unclaimed Moneys. Any moneys, deposited
--------------------------
with or paid to the Trustee for payment of the principal of, premium, if any, or
interest, if any, on any Securities or Coupons appertaining thereto and not
applied but remaining unclaimed by the holders of such Securities or Coupons for
two years after the date upon which the principal of, premium, if any, or
interest, if any, on such Securities or Coupons, as the case may be, shall have
become due and payable, shall be repaid to the Company by the Trustee; and the
holder of any such Securities or Coupons shall thereafter look only to the
Company for any payment which such holder may be entitled to collect.
77
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 13.01. Indenture and Securities Solely Corporate Obligations.
-----------------------------------------------------
No recourse for the payment of the principal of, premium, if any, or interest,
if any, on any Security or any Coupon appertaining thereto, or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Third Amended and
Restated Indenture or in any supplemental indenture, or in any Security or
Coupon, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Third Amended and Restated Indenture
and the issue of the Securities and Coupons appertaining thereto.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.01. Provisions Binding on Company's Successors. All the
------------------------------------------
covenants, stipulations, promises and agreements in this Third Amended and
Restated Indenture contained by the Company shall bind its successors and
assigns whether so expressed or not.
Section 14.02. Official Acts by Successor Corporation. Any act or
--------------------------------------
proceeding by any provision of this Third Amended and Restated Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any corporation that shall at
the time be the lawful sole successor of the Company.
Section 14.03. Addresses for Notices, etc. Any notice or demand
---------------------------
which by any provision of this Third Amended and Restated Indenture is required
or permitted to
78
be given or served by the Trustee or by the holders of Securities or Coupons on
the Company may be given or served by being deposited postage prepaid by first
class mail in a post office letter box addressed (until another address is filed
by the Company with the Trustee) to General Electric Capital Corporation, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention Senior Vice President-
Corporate Treasury and Global Funding Operation. Any notice, direction, request
or demand by any holder of Securities or Coupons to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made in writing and (i) deposited (first class postage prepaid) in a post office
letter box, (ii) transmitted by facsimile transmission or (iii) delivered by
courier, in any event addressed and delivered to the principal office of the
Trustee and to the attention of its corporate trust office.
Section 14.04. New York Contract. This Third Amended and Restated
-----------------
Indenture and each Security, including any Coupons appertaining thereto, shall
be deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
Section 14.05. Evidence of Compliance with Conditions Precedent.
------------------------------------------------
Upon any application or demand by the Company to the Trustee to take any action
under any of the provisions of this Third Amended and Restated Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Third Amended and Restated
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.
Each certificate or opinion provided for in this Third Amended and
Restated Indenture and delivered to the Trustee with respect to compliance with
a condition or covenant provided for in this Third Amended and Restated
Indenture shall include: (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinion contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in
79
the opinion of such person, such condition or covenant has been complied with.
Section 14.06. Legal Holidays. Except as may be otherwise provided
--------------
with respect to any Tranche or series of Securities, in any case where the date
of payment of interest, if any, on or principal of, or premium, if any, on the
Securities or the date fixed for redemption or repayment of any Security or
Coupon will not be a Business Day, then payment of such interest, if any, on or
principal of or premium, if any, on the Securities need not be made on such date
but may be made on the next succeeding Business Day, with the same force and
effect as if made on the date of maturity or date fixed for redemption or
repayment, and no interest shall accrue for the period from and after such date.
Section 14.07. Securities in a Specified Currency Other Than Dollars.
-----------------------------------------------------
Unless otherwise specified as contemplated by Section 2.02 with respect to a
particular series of Securities, whenever for purposes of this Third Amended and
Restated Indenture any action may be taken by the holders of a specified
percentage in aggregate principal amount of Securities of all series or all
series affected by a particular action at the time Outstanding and, at such
time, there are Outstanding any Securities of any series which are denominated
in a Specified Currency other than Dollars (including ECUs), then the principal
amount of Securities of such series which shall be deemed to be Outstanding for
the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount of such Specified Currency at the Market Exchange Rate.
For purposes of this Section 14.07, Market Exchange Rate shall mean the noon
Dollar buying rate in The City of New York for cable transfers of the Specified
Currency published by the Federal Reserve Bank of New York; provided, however,
-------- -------
in the case of ECUs, Market Exchange Rate shall mean the rate of exchange
determined by the Commission of the European Communities (or any successor
thereto) as published in the Official Journal of the European Communities (such
publication or any successor publication, the "Journal"). If such Market
Exchange Rate is not available for any reason with respect to such Specified
Currency, the Trustee shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York or, in the case
of ECUs, the rate of exchange as published in the Journal, as of the most recent
available date, or quotations or, in the case of ECUs, rates of exchange from
one or more major banks in The City of New York or in the country of issue of
the currency
80
in question, which for purposes of the ECU shall be Brussels, Belgium, or such
other quotations or, in the case of ECU, rates of exchange, as the Trustee shall
deem appropriate. The provisions of this paragraph shall apply in determining
the equivalent principal amount in respect of Securities of a series denominated
in a Specified Currency other than Dollars in connection with any action taken
by holders of Securities pursuant to the terms of this Third Amended and
Restated Indenture, including, without limitation, any determination
contemplated in Section 6.01(d) or (e).
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Company and all Securityholders.
Section 14.08. Trust Indenture Act to Control. If and to the extent
------------------------------
that any provision of this Third Amended and Restated Indenture limits,
qualifies or conflicts with the duties imposed by, or with another provision (an
"incorporated provision") included in this Third Amended and Restated Indenture
by operation of, Sections 310 to 318, inclusive, of the Trust Indenture Act of
1939, such imposed duties or incorporated provision shall control.
Section 14.09. Table of Contents, Headings, etc. The table of
---------------------------------
contents and the titles and headings of the articles and sections of this Third
Amended and Restated Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
Section 14.10. Execution in Counterparts. This Third Amended and
-------------------------
Restated Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
and the same instrument.
Section 14.11. Separability. In case any provision in this Third
------------
Amended and Restated Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
81
