EXHIBIT 4(b)
_______________________________________________________________________________
GENERAL ELECTRIC CAPITAL CORPORATION
THIRD AMENDED AND RESTATED
STANDARD MULTIPLE-SERIES INDENTURE PROVISIONS
_______________________________________________________________________________
Dated as of February 28, 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 General Electric Capital Corporation Third Amended and
Restated Standard Multiple-Series Indenture Provisions:
Section of the
Third Amended and
Restated Standard
Multiple-Series
Section of Act 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 (c)................................... *
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 Multiple-Series Indenture Provisions.
* Automatically included under Section 318(c) of the Trust Indenture
Act of 1939, as amended.
TABLE OF CONTENTS/1/
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions........................... 1
ARTICLE TWO
DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES.
Section 2.01. Forms................................. 6
Section 2.02. Amount Unlimited; Issuable in
Series................................ 7
Section 2.03. Authentication........................ 9
Section 2.04. Date and Denomination of
Securities............................ 11
Section 2.05. Execution of Securities............... 12
Section 2.06. Exchange and Registration of
Transfer of Securities................ 12
Section 2.07. Mutilated, Destroyed, Lost or
Stolen Securities..................... 14
Section 2.08. Temporary Securities.................. 15
Section 2.09. Cancellation of Securities Paid,
etc................................... 16
Section 2.10. Computation of Interest............... 16
ARTICLE THREE
REDEMPTION OF SECURITIES; SINKING FUNDS
Section 3.01. Applicability of Article.............. 17
Section 3.02. Notice of Redemption; Selection of
Securities............................ 17
Section 3.03. Payment of Securities Called for
Redemption............................ 18
Section 3.04. Satisfaction of Mandatory Sinking
Fund Payments with Securities......... 19
_______________________
/2/ This table of contents shall not, for any purpose, be deemed to be a
part of the Third Amended and Restated Standard Multiple-Series Indenture
Provisions.
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Section 3.05. Redemption of Securities for
Sinking Fund.......................... 19
Section 3.06. Repayment at the Option of the
Holder................................ 21
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal, Premium and
Interest.............................. 22
Section 4.02. Offices for Notices and Payments,
etc................................... 22
Section 4.03. Appointments to Fill Vacancies in
Trustee's Office...................... 23
Section 4.04. Provision as to Paying Agent.......... 23
Section 4.05. Statement as to Compliance............ 24
ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
Section 5.01. Securityholder Lists.................. 25
Section 5.02. Reports by the Company................ 25
Section 5.03. Reports by the Trustee................ 25
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS.ON
EVENT OF DEFAULT
Section 6.01. Events of Default..................... 26
Section 6.02. Payment of Securities on Default;
Suit Therefor......................... 30
Section 6.03. Application of Moneys Collected by
Trustee............................... 32
Section 6.04. Proceedings by Securityholders........ 33
Section 6.05. Proceedings by Trustee................ 34
Section 6.06. Remedies Cumulative and
Continuing............................ 35
Section 6.07. Direction of Proceedings and ▇▇▇▇▇▇
of Defaults by Securityholders........ 35
Section 6.08. Notice of Defaults.................... 36
Section 6.09. Undertaking to Pay Costs.............. 36
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ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01. Duties and Responsibilities of
Trustee............................... 37
Section 7.02. Reliance on Documents, Opinions,
etc................................... 39
Section 7.03. No Responsibility for Recitals,
etc................................... 40
Section 7.04. Ownership of Securities............... 40
Section 7.05. Moneys to be Held in Trust............ 40
Section 7.06. Compensation and Expenses of
Trustee............................... 41
Section 7.07. Officers' Certificate as Evidence..... 41
Section 7.08. Indentures Not Creating Potential
Conflicting Interests for the Trustee. 42
Section 7.09. Eligibility of Trustee................ 42
Section 7.10. Resignation or Removal of Trustee..... 43
Section 7.11. Acceptance by Successor Trustee....... 44
Section 7.12. Succession by ▇▇▇▇▇▇, etc............. 46
Section 7.13. Other Matters Concerning the
Trustee............................... 46
Section 7.14. Appointment of Authenticating
Agent................................. 46
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01. Action by Securityholders............. 49
Section 8.02. Proof of Execution by
Securityholders....................... 49
Section 8.03. Who Are Deemed Absolute Owners........ 50
Section 8.04. Company-Owned Securities
Disregarded........................... 50
Section 8.05. Revocation of Consents; Future
Holders Bound......................... 50
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
Section 9.01. Purposes of Meetings.................. 51
Section 9.02. Call of Meetings by Trustee........... 51
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Section 9.03. Call of Meetings by Company or
Securityholders....................... 52
Section 9.04. Qualifications for Voting............. 52
Section 9.05. Regulations........................... 52
Section 9.06. Voting................................ 53
Section 9.07. No Delay of Rights by Meeting......... 54
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures without
Consent of Securityholders............ 54
Section 10.02. Supplemental Indentures with
Consent of Securityholders............ 56
Section 10.03. Compliance with Trust Indenture
Act; Effect of Supplemental
Indentures............................ 57
Section 10.04. Notation on Securities................ 58
Section 10.05. Evidence of Compliance of
Supplemental Indenture to be
Furnished Trustee..................... 58
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 11.01. Company May Not Consolidate, etc.,
Except Under Certain Conditions....... 58
Section 11.02. Successor Corporation to be
Substituted........................... 59
Section 11.03. Documents to be Given Trustee......... 59
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE
Section 12.01. Discharge of Indenture................ 60
Section 12.02. Deposited Moneys to be Held in
Trust by Trustee...................... 60
Section 12.03. Paying Agent to Repay Moneys Held..... 61
Section 12.04. Return of Unclaimed Moneys............ 61
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ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 13.01. Indenture and Securities Solely
Corporate Obligations................. 61
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.01. Provisions Binding on Company's
Successors............................ 62
Section 14.02. Official Acts by Successor
Corporation........................... 62
Section 14.03. Addresses for Notices, etc............ 62
Section 14.04. New York Contract..................... 62
Section 14.05. Evidence of Compliance with
Conditions Precedent.................. 62
Section 14.06. Legal Holidays........................ 63
Section 14.07. Securities in a Specified Currency
other than Dollars.................... 63
Section 14.08. Trust Indenture Act to Control........ 64
Section 14.09. Table of Contents, Headings, etc...... 64
Section 14.10. Execution in Counterparts............. 65
Section 14.11. Separability; Benefits................ 65
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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 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 7.15 to act on behalf of the Trustee to authenticate
Securities.
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.
Company:
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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.
currency:
--------
The term "currency" shall mean Dollars or any Specified Currency.
1
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.
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:
---------------------
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 a declaration of acceleration of the maturity thereof
pursuant to Section 6.01.
2
Overdue Rate:
------------
The term "Overdue Rate" with respect to each series of Securities
shall mean the rate designated as such in the resolution of the Board of
Directors or the supplemental indenture, as the case may be, relating to such
series 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.
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 at any particular time
its corporate trust business shall be administered.
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
3
(a) Securities theretofore cancelled 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 set forth in
Section 2.06.
Security registrar:
------------------
The term "Security registrar" shall have the meaning set forth in
Section 2.06.
Securityholder:
--------------
4
The term "Securityholder", "holder of Securities", or other similar
terms, shall mean any Person in whose name at the time a particular Security is
registered on the books of the Company kept for that purpose in accordance with
the terms hereof.
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
thereof.
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 instalment 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 series of Securities established as contemplated hereunder.
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:
-------
5
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 hereof, 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 series
shall mean the Trustee with respect to Securities of that series.
ARTICLE TWO
DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES.
Section 2.01. Forms. (a) The Securities of each series 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 the Securities of such series may be
listed, or to conform to usage.
(b) The resolutions adopted by the Board of Directors establishing
the form and terms of the Securities of any series pursuant to Sections 2.01 and
2.02, respectively, of this Third Amended and Restated Indenture, may provide
for issuance of the Securities in global form. If Securities of a series are so
authorized to be issued in global form, any such global Security may provide
that it shall represent that aggregate amount of Securities from time to time
endorsed thereon and may also provided that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount or changes in the rights of holders of
Securities represented thereby, shall be made in such manner and by such Person
or Persons as shall be specified therein.
6
(c) The Trustee's Certificate of Authentication on all Securities
shall be in substantially the following form:
"This is one of the Securities of the series designated therein
described in the within-mentioned Indenture.
________________________,
as Trustee
----------
By__________________
Authorized Officer"
------------------
Section 2.02. Amount Unlimited; Issuable in Series. 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. There shall be
established in or pursuant to a resolution of the Board of Directors or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series 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 series 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 series is payable;
(4) the rate or rates, or the method of determination thereof, at
which the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, the interest payment dates on
which such interest shall be payable and, if other than as set forth in
Section 2.04, the record dates for the determination of holders to whom
interest is payable;
7
(5) the place or places where the principal of, and premium, if any,
and any interest on Securities of the series shall be payable;
(6) the Specified Currency of the Securities of the series;
(7) the currency or currencies in which payments on the Securities of
the series 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 series may be
redeemed, in whole or in part, at the option of the Company, pursuant to
any sinking fund or otherwise;
(9) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and the price at or process
by which and the period or periods within which and the terms and
conditions upon which Securities of the series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(11) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
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
series shall be payable;
(13) if the principal of or interest on the Securities of the series
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 series may be
8
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) any Events of Default with respect to the Securities of the
series, if not set forth herein;
(16) if other than the rate of interest stated in the title of the
Securities of the series, the applicable Overdue Rate;
(17) in the case of any series of non-interest bearing Securities,
the applicable dates for purposes of clause (a) of Section 5.01; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Third Amended and Restated
Indenture).
All Securities of any one series 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 such 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 series executed by the Company to the
Trustee for authentication. Except as otherwise provided in this Article Two,
the Trustee shall thereupon authenticate and deliver 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 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;
9
(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 series 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 form of such Securities has 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, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
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 has duly taken all necessary corporate action with
respect to such issuance;
(e) that the issuance of such Securities 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
10
(f) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities and the related
supplemental indenture, if any, have been complied with and that
authentication and delivery of such Securities 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 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.
Section 2.04. Date and Denomination of Securities. The Securities of
-----------------------------------
each series shall be issuable in registered form without coupons in such
denominations as shall be specified as contemplated by Section 2.02. In the
absence of any such specification with respect to the Securities of any series,
the Securities of such series shall be issuable in denominations of $1,000 and
any multiple of $1,000. Securities of each series shall be numbered, lettered
or otherwise distinguished in such manner or in accordance with such plan as the
officers of the Company executing the same may determine with the approval of
the Trustee.
Every Security shall be dated the date of its authentication.
The Person in whose name any Security of a particular series is
registered at the close of business on any record date (as hereinafter defined)
with respect to any interest payment date for such series shall be entitled to
receive the interest payable on such interest payment date notwithstanding the
cancellation of such 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 due on such interest payment date, such defaulted interest shall be
paid to the Persons in whose names Outstanding Securities of such series are
registered on a subsequent record date established by notice given by mail by or
on behalf of the
11
Company to the holders of such 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 Securities of a particular series, 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 day on which banking
institutions in The City of New York are authorized or required by law or
executive order to close or remain closed.
Interest on the 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.
Section 2.05. Execution of Securities. The Securities shall be
-----------------------
signed in the name and on behalf of the Company by the manual or facsimile
signature of its President or its Chairman of the Board and its Senior Vice
President - Corporate Treasury and Global Funding Operation or its Secretary,
under its corporate seal (which may be printed, engraved or otherwise reproduced
thereon, by facsimile or otherwise). 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 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 shall cease to be such officer before the Securities so signed shall
have been authenticated and delivered by the Trustee, or disposed of by the
Company, such Securities nevertheless may be authenticated and delivered or
disposed of as though the Person who signed such Securities had not ceased to be
such officer of the Company; and any Security may be signed on behalf of the
Company by such Persons as, at the actual date of the execution of such
Security, shall be the proper officers of the Company, although at the date of
the
12
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.
---------------------------------------------------
Securities of any series may be exchanged for a like aggregate principal amount
of Securities of the same series of other authorized denominations. Securities
to be 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 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".
The Company shall keep, at each such office or agency, a register for
each series of 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
Securities and shall register the transfer of Securities as in this Article Two
provided. 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 Security of any series 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
Security or Securities of the same series for an equal aggregate principal
amount. Registration or registration of transfer of any Security by any
Security registrar in the registry books of the Company maintained by such
Security registrar, and delivery of such Security, duly authenticated, shall be
deemed to complete the registration or registration of transfer of such
Security.
The Company will at all times designate one Person (who may be the
Company and who need not be a Security
13
registrar) to act as repository of a master list of names and addresses of the
holders of the 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 under and duly registered to act as such under and to the extent
required by applicable law and regulations.
All Securities presented for registration of transfer or for exchange,
redemption 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.
Neither the Company nor the Trustee shall be required to exchange or
register a transfer of (a) any Securities of any series for the period of 15
days next preceding the selection of Securities of that series to be redeemed
and thereafter until the date of the mailing of a notice of redemption of
Securities of that series selected for redemption or (b) any Securities
selected, called or being called for redemption in whole or in part except, in
the case of any Security to be redeemed in part, the portion thereof not so to
be redeemed.
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities. In
-----------------------------------------------
case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company in the case of a mutilated Security
shall, and in the case of a lost, stolen or destroyed Security 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
14
Security of the same series, bearing a number not contemporaneously Outstanding,
in exchange and substitution for the mutilated Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen. In every case the
applicant for a substituted Security 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 the Company and to the Trustee evidence to their satisfaction
of the destruction, loss or theft of such Security and the ownership thereof.
Upon the issuance of any substituted Security, 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 which has matured or is about to mature shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substituted Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Security) 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 and the
ownership thereof.
Every substituted Security issued pursuant to the provisions of this
Section 2.07 by virtue of the fact that any Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security 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
of the same series duly issued hereunder. All Securities 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 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 series, the Company may execute and the Trustee
shall authenticate and deliver temporary Securities (printed, lithographed or
typewritten). Temporary Securities shall be issuable in any
15
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 series and thereupon any or all temporary
Securities of such series 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 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 series.
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 series
shall in all respects be entitled to the same benefits under this Third Amended
and Restated Indenture as definitive Securities of the same series authenticated
and delivered hereunder.
Section 2.09. Cancellation of Securities Paid, etc. All Securities
-------------------------------------
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 cancelled by it, or, if surrendered to the Trustee, shall be promptly
cancelled by it, and no Securities 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 cancelled Securities and deliver a
certificate of such destruction to the Company or, at the written request of the
Company, shall deliver cancelled Securities to the Company. If the Company
shall acquire any of the Securities, however, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such
Securities 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
16
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE THREE
REDEMPTION OF SECURITIES; SINKING FUNDS
Section 3.01. Applicability of Article. The provisions of this
------------------------
Article Three shall be applicable, as the case may be, (i) to the Securities of
any series which are redeemable before their maturity and (ii) to any sinking
fund for the retirement of Securities of any series, in either case except as
otherwise specified as contemplated by Section 2.02 for Securities of such
series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment".
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 series in accordance with their
terms, it shall fix a date for redemption and shall mail or cause to be mailed a
notice of such redemption at least 30 and not more than 60 days prior to the
date fixed for redemption to the holders of Securities of such series so to be
redeemed as a whole or in part at their last addresses as the same appear on the
registry books of the Company and to the Trustee, except as the resolutions
adopted by the Board of Directors to establish the terms of any series of
Securities may otherwise provide. Such mailing shall be by first class mail.
The notice if mailed 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 such notice by mail or any defect in the
notice to the holder of any Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
Each such notice of redemption shall specify the date fixed for
redemption, the redemption price at which the Securities of such series are to
be redeemed, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities, that any
17
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 series are to be redeemed the notice of redemption shall specify
the number or numbers of the Securities of that series to be redeemed. In case
any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of that series in
aggregate principal amount equal to the unredeemed portion thereof will be
issued.
Prior to the redemption date specified in the notice of redemption
given as provided in this Section 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 Securities of a
series 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 series 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 of that series or portions thereof to be
redeemed. Securities of a series may be redeemed in part only in multiples of
the smallest authorized denomination of that series.
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 series 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 of such series or portions of Securities of such
series so called for redemption shall cease to accrue. On presentation and
surrender of such Securities at a place of payment in said notice specified, the
said Securities or the specified portions thereof shall be paid and redeemed by
the
18
Company at the applicable redemption price, together with any interest
accrued thereon to the date fixed for redemption; provided, however, that any
-------- -------
semi-annual instalment of interest becoming due on or prior to the date fixed
for redemption shall be payable to holders of such Securities registered as such
on the relevant record date according to their terms.
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
series, of authorized denominations, 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 of a series in cash, the Company may at
its option (a) deliver to the Trustee Securities of that series theretofore
purchased or otherwise acquired by the Company, or (b) receive credit for the
principal amount of Securities of that series 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 been previously
--------
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 series of
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 that series pursuant to the terms of that series, the
portion thereof, in 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 that series pursuant to
Section 3.04 (which Securities, if not theretofore delivered, will accompany
such certificate) and whether the Company intends
19
to exercise its right to make a permitted optional sinking fund payment with
resect to such series. Such certificate shall also state that no Event of
Default has occurred and is continuing with respect to such series. 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 that series 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 series.
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 (or a less sum if the
Company shall so request or determine) with respect to the Securities of any
particular series 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 series 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 the Securities of any
particular series 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 Securities of such series and not
held for the payment or redemption of particular Securities of such series shall
be applied by the Trustee (or by the Company if the Company is acting as its own
paying agent),
20
together with other moneys, if necessary, to be deposited (or segregated)
sufficient for the purpose, to the payment of the principal of the Securities of
that series 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 of a
series with sinking fund moneys or mail any notice of redemption of such
Securities by operation of the sinking fund for such series 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
mailed 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
series 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.
21
Section 3.06. Repayment at the Option of the Holder. Any series 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 accredited 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 holders of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of, premium, if any, and interest, if any, on each of the Securities
of that series at the places, at the respective times and in the manner provided
in such Securities. References to interest herein shall include any additional
amounts payable pursuant to the terms of the applicable Securities.
Section 4.02. Offices for Notices and Payments, etc. As long as any
--------------------------------------
of the Securities of a series remain Outstanding, the Company will designate and
maintain in the Borough of Manhattan, The City of New York an office or agency
where the Securities of that series may be presented for payment, an office or
agency where the Securities of that series may be presented for registration of
transfer and for exchange as in this Third Amended and Restated Indenture
provided and an office or agency where notices and demands to or upon the
Company in respect of the Securities of that series or of this Third Amended and
Restated Indenture may be served. In addition to such office or offices or
agency or agencies, the Company may from time to time designate and maintain one
or more additional offices or agencies within or outside the Borough of
Manhattan, The City of New York where the Securities of that series may be
presented for registration of transfer or for exchange, and
22
the Company may from time to time rescind such designation, as it may deem
desirable or expedient. 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 the Securities of each
series may be presented for payment, for registration of 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 of each
series or of this Third Amended and Restated Indenture may be served. The
Company also designates as repository the office of the Company located at ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the office or agency of the
Company as pursuant to Section 2.06 for the master list of the names and
addresses of the holders of the Securities of each series.
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 each
series of Securities 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 series, 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
the Securities of such series (whether such sums have been paid to it
by the Company or by any other obligor on the Securities of such
series) in trust for the benefit of the holders of the Securities of
such series;
23
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities of such series) to
make any payment of the principal of, premium, if any, or interest, if
any, on the Securities of such series 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 the Securities of such series)
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 series, it will, on or before each due date of the
principal of, premium, if any, or interest, if any, on the Securities of such
series, set aside, segregate and hold in trust for the benefit of the holders of
such Securities 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 the Securities of such series) to make any payment of the principal
of, premium, if any, or interest, if any, on the Securities of such series 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 series, it will, prior to each due date of the
principal of, premium, if any, or interest, if any, on the Securities of such
series, 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
24
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 June 1, 1995) 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 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 of any series, the Company and any other
obligor on the Securities will furnish or cause to be furnished to the Trustee a
list in such form as the Trustee may reasonably require of the names and
addresses of the holders of the Securities of such series pursuant to Section
312 of the Trust Indenture Act of 1939 (a) semi-annually not more than 15 days
after each record date for the payment of interest on such Securities, as
hereinabove specified, as of such record date, and on dates to be determined
pursuant to Section 2.02 for non-interest bearing 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 15(d)
of
25
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.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS 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 instalment 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 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
26
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 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 10 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 the Securities of such series at the time
Outstanding or within 10 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
27
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 other 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 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 or 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.
28
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 such 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 (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 the Securities of such series
contained to the contrary notwithstanding. This provision, however, is subject
to the condition that if, at any time after 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 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 of the Securities of such
series and the principal of, and premium, if any, on any and all Securities of
such series 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 Securities of such series 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 default, with respect to such
series and rescind and annul such declaration and its consequences; but no such
waiver or
29
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 proceeding shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee, then and in
every such case 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
proceeding 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
instalment of interest upon any Security of any series 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 of any series as and when the same shall
become due and payable, whether at maturity of the Securities of that series 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 any 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,
30
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.
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 the Securities of any series, or to the creditors or property
of the Company or such other obligor, the Trustee, irrespective of whether the
principal of the Securities of any series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section
6.02, 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 the Securities of any series are Original Issue Discount Securities,
such portion of the principal amount as may be due and payable with respect to
such series pursuant to a declaration in accordance with Section 6.01), premium,
if any, and interest, if any, owing and unpaid in respect of the Securities of
any series and, in case of any judicial proceedings, to file such proofs of
claim and other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee and of the Securityholders of any series allowed
in such judicial proceedings relative to the Company or any other obligor on the
Securities of any series, 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
31
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 of any series or the rights of any holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
All rights of action and of asserting claims under this Third Amended
and Restated Indenture, or under the Securities of any series, may be enforced
by the Trustee without the possession of any of the Securities of such series or
the production thereof 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 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 to which such proceedings
relate, and it shall not be necessary to make any holders of 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 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,
32
in the order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been collected by
the Trustee) upon the overdue installments of interest at the Overdue
Rate applicable to such Securities, such payments to be made ratably
to the Persons entitled thereto;
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) upon
overdue installments of interest, if any, at the Overdue Rate
applicable to such Securities; and in case such moneys shall be
insufficient to pay in full the whole 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 instalment of interest,
if any, over any other instalment 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.
Section 6.04. Proceedings by Securityholders. No holder of any
------------------------------
Security of any series 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 Securities of such series and of the
continuance thereof, as
33
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 with every other taker and holder and the
Trustee, that no one or more holders of Securities of such series 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 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.
Notwithstanding any other provisions in this Third Amended and
Restated Indenture, however, the right of any holder of any Security to receive
payment of the principal of, premium, if any, and interest, if any, on such
Security, on or after the respective due dates expressed in such Security, 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 Securities of any series or of this 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 the Securities of such series 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
34
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 Securityholders of
any series 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, 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 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 Securityholders of any series may be exercised from time to time, and
as often as shall be deemed expedient, by the Trustee or by the Securityholders
of such series.
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 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 the Securities of such series at the time Outstanding may on
behalf of the holders of all of the Securities of such series waive any past
default or Event of Default with respect to such Securities and its
35
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 in the
payment of any sinking fund instalment or analogous obligation with respect to
Securities of such series, 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 affected. Upon any such waiver the Company, the Trustee
and the holders of the Securities of that series shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or 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 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,
mail to all holders of Securities of such series, as the names and addresses of
such holders appear upon the registry books of the Company, notice of all
defaults with respect to such series known to a Responsible Officer of the
Trustee, 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 instalment 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 Securities of such series.
Section 6.09. Undertaking to Pay Costs. All parties to this Third
------------------------
Amended and Restated Indenture agree, and each holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
36
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 of
any series 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, 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 issued hereunder, the Trustee, prior
to the occurrence of an 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 wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
Securities of a series and
37
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 of a series 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, 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 Securities of such series.
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
38
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, 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 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
Securityholders shall offer reasonable security or indemnity satisfactory
to the Trustee against the costs, expenses and liabilities which might be
incurred therein or thereby;
39
(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, 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 the Securities, 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 or any of the Securities or of the proceeds
thereof.
40
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 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 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
41
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 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 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 Third Amended and Restated Indenture dated as of
February 27, 1997, between the Company and the Trustee, with respect to each
series of securities issued thereunder; (e) the indenture dated as of June 3,
1994, between the Company and the Trustee; (f) the indenture dated as of
November 1, 1981, between the Company and the Trustee; (g) the indenture dated
as of April 1, 1991, between the Company and the Trustee; and (h) the indenture
dated as of August 1, 1995, 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 ten million dollars. 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
42
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.
Section 7.10. Resignation or Removal of Trustee. (a) 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 by mailing notice thereof to the holders of
the applicable series of Securities 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 Security or
Securities of such series for at least six months, or
43
(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 at any time 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 effective
upon acceptance of appointment by the successor Trustee as provided in Section
7.11.
44
(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.
No successor Trustee with respect to a series of Securities shall
accept appointment as provided in this
45
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 mail notice of
the succession of such Trustee hereunder to the holders of Securities of such
series at their addresses as they shall appear on the registry books of the
Company. If the Company fails to mail such notice within 10 days after the
acceptance of appointment by the successor Trustee, the successor Trustee shall
cause such notice to be mailed 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 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. Other Matters Concerning the Trustee. The principal
------------------------------------
corporate trust office of the Trustee at the date of this Third Amended and
Restated
46
Indenture is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Global Trust Services Administration.
Section 7.14. 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, 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 7.14, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 7.14.
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 7.14, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
47
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 7.14, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and 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 7.14.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 7.14.
If an appointment is made pursuant to this Section 7.14, 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 described in the within-mentioned Indenture.
The Chase Manhattan Bank,
As Trustee
[AUTHENTICATING AGENT]
As Authenticating Agent
By_____________________,
Authorized Signatory
48
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, proof of the execution of any
instrument by a Securityholder or his agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
ownership of Securities shall be proved by the 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.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 9.06.
The Company may set a record date for purposes of determining the
identity of holders of 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 Securities of any
series, only holders of Securities of such series of record on such record date
shall be entitled so to vote or give such consent or revoke such vote or
consent.
49
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 such Security shall be registered upon the books of the Company to
be, and may treat him 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.
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.
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 obligor of 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 of 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 or 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
50
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.
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 Meetings 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
51
in Section 9.01, to be held at such time and at such place in the Borough of
Manhattan, The City of New York as the Trustee shall determine. Notice of every
meeting of the holders of Securities of any 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 mailed to holders of Securities of each
series affected at their addresses as they shall appear on the registry books of
the Company. Such notice shall be mailed not less than 10 nor more than 90 days
prior to the date fixed for the meeting.
Section 9.03. Call of Meetings 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
mailed 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 in said Borough of Manhattan, The City of New
York for such meeting and may call such meeting to take any action authorized in
Section 9.01, by mailing 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. 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
52
the right to vote, and such other matters concerning the conduct of the meeting
as it shall think fit.
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 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 9.06. 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 holders of Securities or of their representatives by proxy and the
principal amount (in the case of Original Issue Discount Securities, such
principal amount to be determined as provided in the definition of "Security or
Securities; Outstanding" in Section 1.01) of such Securities held or represented
by them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall
be
53
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 9.02. The record shall show the
principal amount of the Securities (in the case of Original Issue Discount
Securities, such principal amount to be determined as provided in the definition
of "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 9.07. No Delay of Rights by Meeting. Nothing in this Article
-----------------------------
Nine contained 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.
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
54
protection of the holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of 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, 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;
(d) to establish the forms or terms of Securities of any series 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; 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
55
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 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 any supplemental
indenture or of modifying in any manner the rights of the holders of the
Outstanding Securities of each such series; 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
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)
56
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 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.
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 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
57
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 on behalf 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 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, premium, if
any, and interest, if any, on all the Outstanding Securities, 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
58
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. 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 which theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order of such
successor corporation, instead of the Company, and subject to all the terms,
conditions and limitations in this Third Amended and Restated Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
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 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 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 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
59
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
Section 12.01. Discharge of Indenture. When (a) the Company shall
----------------------
deliver to the Trustee for cancellation all Securities theretofore authenticated
(other than any Securities which shall have been destroyed, lost or stolen or 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
provisions of Section 2.07) and not theretofore cancelled or (b) all the
Securities not theretofore cancelled 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 (other
than any (i) Securities which shall have been mutilated, destroyed, lost or
stolen and 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
provisions of Section 2.07 or (ii) Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company as
provided in Section 12.04) not theretofore cancelled 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, 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 incurred by
the Trustee in connection with this Third Amended and Restated Indenture or the
Securities.
Section 12.02. Deposited Moneys to be Held in Trust by Trustee. All
-----------------------------------------------
moneys deposited with the Trustee
60
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 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 Securities of any series and not applied but remaining
unclaimed by the holders of Securities of that series for two years after the
date upon which the principal of, premium, if any, or interest, if any, on such
Securities, 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
shall thereafter look only to the Company for any payment which such holder may
be entitled to collect.
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 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 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
61
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.
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 be given or served by the Trustee or by the holders of
Securities 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, P.O. Box 8300, Stamford, Connecticut 06904. Any notice, direction,
request or demand by any Securityholder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or made in
writing 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 to the principal office of the Trustee and to the
attention of its corporate trust office as specified in Section 7.13.
Section 14.04. New York Contract. This Third Amended and Restated
-----------------
Indenture and each Security 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.
62
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 the opinion of such Person, such condition or
covenant has been complied with.
Section 14.06. Legal Holidays. In any case where the date of
--------------
maturity 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 will be
in The City of New York, New York, a Saturday, a Sunday, a legal holiday or a
day on which banking institutions are authorized or required by law or executive
order to close or remain closed, 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 day not in such city, a Saturday, a
Sunday, a legal holiday or a day on which banking institutions are authorized or
required by law or executive order to close or remain closed, with the same
force and effect as if made on the date of maturity or a 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
63
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 European
Currency Units ("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 from one or more major banks in The City of New York or in the
country of issue of the currency 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
64
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; Benefits. 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.
Nothing in this Third Amended and Restated Indenture or in the
Securities, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the holders of the
Securities, any benefit or any legal or equitable right, remedy or claim under
this Third Amended and Restated Indenture.
65
