------------------------------------------------------------
CHIREX INC.
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
_________
Indenture
Dated as of
________
Debt Securities
------------------------------------------------------------
CHIREX INC.
Debt Securities
CROSS REFERENCE SHEET/*/
This Cross Reference Sheet shows the location in the Indenture of the provisions
inserted pursuant to Sections 310-318(a), inclusive of the Trust Indenture Act
of 1939.
Indenture
TIA Section Section
----------- -------
310 (a)(1)................................................... 7.10
(a)(2)................................................... 7.10
(a)(3)................................................... 7.10
(a)(4)................................................... 7.10
(a)(5)................................................... 7.10
(b)...................................................... 7.10
(c)...................................................... N.A./**/
311 (a)...................................................... 7.11
(b)...................................................... 7.11
(c)...................................................... N.A
312 (a)...................................................... 5.01
(b)...................................................... 5.02
(c)...................................................... 5.02
313 (a)...................................................... 5.04
(b)(1)................................................... 5.04
(b)(2)................................................... 5.04
(c)...................................................... 13.03
(d)...................................................... 5.04
------------------------
/*/ The Cross Reference Sheet is not part of the Indenture.
/**/ N.A. means "Not Applicable."
2
Indenture
TIA Section Section
----------- -------
314 (a)(1)................................................... 5.03(a)
(a)(2)................................................... 5.03(b)
(a)(3)................................................... 5.03(a)&(b)
& 13.03
(a)(4)................................................... 4.05
(b)...................................................... N.A.
(c)(1)................................................... 13.05
(c)(2)................................................... 13.05
(c)(3)................................................... N.A.
(d)...................................................... N.A.
(e)...................................................... 13.05
(f)...................................................... 4.06
315 (a)...................................................... 7.01(a)
(b)...................................................... 6.07
& 13.03
(c)...................................................... 7.01
(d)...................................................... 7.01
(e)...................................................... 6.08
316 (a)(last sentence)....................................... 1.01
(a)(1)(A)................................................ 6.06
(a)(1)(B)................................................ 6.06
(a)(2)................................................... 9.01(d)
(b)...................................................... 6.04
(c)...................................................... 5.05
317 (a)(1)................................................... 6.02
(a)(2)................................................... 6.02
(b)...................................................... 4.04
318 (a)...................................................... 13.07
TABLE OF CONTENTS/*/
Page
----
RECITALS OF THE COMPANY .................................................
ARTICLE I
Definitions
-----------
SECTION 1.01. Certain Terms Defined..............................
SECTION 1.02. Incorporation by Reference of Trust
Indenture Act
SECTION 1.03. Rules of Construction..............................
ARTICLE II
Debt Securities
---------------
SECTION 2.01. Forms Generally....................................
SECTION 2.02. Form of Trustee's Certificate of
Authentication...................................
SECTION 2.03. Principal Amount; Issuable in
Series...........................................
SECTION 2.04. Execution of Debt Securities.......................
SECTION 2.05. Authentication and Delivery of Debt
Securities.......................................
SECTION 2.06. Denomination of Debt Securities....................
SECTION 2.07. Registration of Transfer and
Exchange.........................................
SECTION 2.08. Temporary Debt Securities..........................
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen
Debt Securities..................................
SECTION 2.10. Cancelation of Surrendered Debt
Securities.......................................
SECTION 2.11. Provisions of the Indenture and Debt
Securities for the Sole Benefit of
the Parties and the Holders......................
SECTION 2.12. Payment of Interest; Interest Rights
Preserved........................................
SECTION 2.13. Securities Denominated in Foreign
Currencies.......................................
SECTION 2.14. Wire Transfers.....................................
SECTION 2.15. Securities Issuable in the Form of a
Global Security..................................
SECTION 2.16. Medium Term Securities.............................
/*/ The Table of Contents is not part of the Indenture.
Contents, p. 2
SECTION 2.17. Defaulted Interest.................................
SECTION 2.18. Judgments..........................................
ARTICLE III
Redemption of Debt Securities
-----------------------------
SECTION 3.01. Applicability of Article...........................
SECTION 3.02. Tax Redemption; Special Tax
Redemption.......................................
SECTION 3.03. Notice of Redemption; Selection of
Debt Securities..................................
SECTION 3.04. Payment of Debt Securities Called
for Redemption...................................
SECTION 3.05. Mandatory and Optional Sinking
Funds............................................
SECTION 3.06. Redemption of Debt Securities for
Sinking Fund.....................................
ARTICLE IV
Particular Covenants of the Company
-----------------------------------
SECTION 4.01. Payment of Principal of, and
Premium, If Any, and Interest on,
Debt Securities..................................
SECTION 4.02. Maintenance of Offices or Agencies
for Registration of Transfer,
Exchange and Payment of Debt
Securities.......................................
SECTION 4.03. Appointment to Fill a Vacancy in the
Office of Trustee................................
SECTION 4.04. Duties of Paying Agents, etc.......................
SECTION 4.05. Statement by Officers as to
Default..........................................
SECTION 4.06. Payment of Additional Interest.....................
SECTION 4.07. Further Instruments and Acts.......................
SECTION 4.08. Existence..........................................
SECTION 4.09. Maintenance of Properties..........................
SECTION 4.10. Payment of Taxes and Other Claims..................
ARTICLE V
Holders, Lists and Reports by the Company and the Trustee
---------------------------------------------------------
SECTION 5.01. Company to Furnish Trustee
Information as to Names and
Addresses of Holders; Preservation
of Information...................................
Contents, p. 3
SECTION 5.02. Communications to Holders..........................
SECTION 5.03. Reports by Company.................................
SECTION 5.04. Reports by Trustee.................................
SECTION 5.05. Record Dates for Action by Holders.................
ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
-------------------------------------------------------
SECTION 6.01. Events of Default..................................
SECTION 6.02. Collection of Indebtedness by
Trustee, etc.....................................
SECTION 6.03. Application of Moneys Collected by
Trustee..........................................
SECTION 6.04. Limitation on Suits by Holders.....................
SECTION 6.05. Remedies Cumulative; Delay or
Omission in Exercise of Rights Not
a Waiver of Default..............................
SECTION 6.06. Rights of Holders of Majority in
Principal Amount of Debt
Securities to Direct Trustee and
to Waive Default.................................
SECTION 6.07. Trustee to Give Notice of Defaults
Known to It, but May Withhold Such
Notice in Certain Circumstances..................
SECTION 6.08. Requirement of an Undertaking to Pay
Costs in Certain Suits Under the
Indenture or Against the Trustee.................
ARTICLE VII
Concerning the Trustee
----------------------
SECTION 7.01. Certain Duties and Responsibilities................
SECTION 7.02. Certain Rights of Trustee..........................
SECTION 7.03. Trustee Not Liable for Recitals in
Indenture or in Debt Securities..................
SECTION 7.04. Trustee, Paying Agent or Registrar'
May Own Debt Securities..........................
SECTION 7.05. Moneys Received by Trustee to Be
Held in Trust....................................
SECTION 7.06. Compensation and Reimbursement.....................
SECTION 7.07. Right of Trustee to Rely on an
Officers' Certificate Where No
Other Evidence Specifically
Prescribed.......................................
SECTION 7.08. Separate Trustee; Replacement of
Trustee..........................................
SECTION 7.09. Successor Trustee by Merger........................
Consents, p. 4
SECTION 7.10. Eligibility; Disqualification......................
SECTION 7.11. Preferential Collection of Claims
Against Company..................................
SECTION 7.12. Compliance with Tax Laws...........................
ARTICLE VIII
Concerning the Holders
----------------------
SECTION 8.01. Evidence of Action by Holders......................
SECTION 8.02. Proof of Execution of Instruments
and of Holding of Debt Securities................
SECTION 8.03. Who May Be Deemed Owner of Debt
Securities.......................................
SECTION 8.04. Instruments Executed by Holders
Bind Future Holders..............................
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Purposes for Which Supplemental
Indenture May Be Entered into
Without Consent of Holders.......................
SECTION 9.02. Modification of Indenture with
Consent of Holders of Debt
Securities.......................................
SECTION 9.03. Effect of Supplemental Indentures..................
SECTION 9.04. Debt Securities May Bear Notation
of Changes by Supplemental
Indentures.......................................
SECTION 9.05. Payment for Consent................................
ARTICLE X
Consolidation, Merger, Sale or Conveyance
-----------------------------------------
SECTION 10.01. Consolidations and Mergers of the
Company..........................................
SECTION 10.02. Rights and Duties of Successor
Corporation......................................
ARTICLE XI
Satisfaction and Discharge of Indenture;
----------------------------------------
Defeasance; Unclaimed Moneys
----------------------------
Contents, p. 5
SECTION 11.01. Applicability of Article...........................
SECTION 11.02. Satisfaction and Discharge of
Indenture; Defeasance............................
SECTION 11.03. Conditions to Defeasance...........................
SECTION 11.04. Application of Trust Money.........................
SECTION 11.05. Repayment to Company...............................
SECTION 11.06. Indemnity for U.S. Government
Obligations......................................
SECTION 11.07. Reinstatement......................................
ARTICLE XII
Subordination of Debt Securities
--------------------------------
SECTION 12.01. Applicability of Article; Agreement
to Subordinate...................................
SECTION 12.02. Liquidation, Dissolution, Bankruptcy...............
SECTION 12.03. Default on Senior Indebtedness.....................
SECTION 12.04. Acceleration of Payment of Debt
Securities.......................................
SECTION 12.05. When Distribution Must Be Paid Over................
SECTION 12.06. Subrogation........................................
SECTION 12.07. Relative Rights....................................
SECTION 12.08. Subordination May Not Be Impaired by
Company..........................................
SECTION 12.09. Rights of Trustee and Paying Agent.................
SECTION 12.10. Distribution or Notice to
Representative...................................
SECTION 12.11. Article XII Not to Prevent Defaults
or Limit Right to Accelerate.....................
SECTION 12.12. Trust Moneys Not Subordinated......................
SECTION 12.13. Trustee Entitled to Rely...........................
SECTION 12.14. Trustee to Effectuate Subordination................
SECTION 12.15. Trustee Not Fiduciary for Holders of
Senior Indebtedness..............................
SECTION 12.16. Reliance by Holders of Senior
Indebtedness on Subordination
Provisions.......................................
ARTICLE XIII
Miscellaneous Provisions
------------------------
SECTION 13.01. Successors and Assigns of Company
Bound by Indenture...............................
SECTION 13.02. Acts of Board, Committee or Officer
of Successor Company Valid.......................
SECTION 13.03. Required Notices or Demands........................
Contents, p. 6
SECTION 13.04. Indenture and Debt Securities to Be
Construed in Accordance with the
Laws of the State of New York....................
SECTION 13.05. Officers' Certificate and Opinion of
Counsel to Be Furnished upon
Application or Demand by the
Company..........................................
SECTION 13.06. Payments Due on Legal Holidays.....................
SECTION 13.07. Provisions Required by Trust
Indenture Act to Control.........................
SECTION 13.08. Computation of Interest on Debt
Securities.......................................
SECTION 13.09. Rules by Trustee, Paying Agent and
Registrar........................................
SECTION 13.10. No Recourse Against Others.........................
SECTION 13.11. Severability.......................................
SECTION 13.12. Effect of Headings.................................
SECTION 13.13. Indenture May Be Executed in
Counterparts.....................................
SIGNATURES .............................................................
INDENTURE dated as of , between CHIREX
INC., a corporation duly organized and existing under the laws of
the State of Delaware (the "Company"), and , a
corporation duly incorporated and existing under the laws of the
State of (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes, bonds or other evidences of indebtedness to be issued in one or more
series unlimited as to principal amount (herein called the "Debt Securities"),
as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
That in order to declare the terms and conditions upon which the Debt
Securities are authenticated, issued and delivered, and in consideration of the
premises, and of the purchase and acceptance of the Debt Securities by the
holders thereof, the Company and the Trustee covenant and agree with each other,
for the benefit of the respective Holders from time to time of the Debt
Securities or any series thereof, as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01. Certain Terms Defined. 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 Indenture and of any
Indenture supplemental hereto shall have the respective meanings specified in
this Section 1.01. All other terms used in this Indenture which are defined in
the Trust Indenture Act or which are by reference therein defined in the
Securities Act (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms in
the Trust Indenture Act and in the
2
Securities Act as in force as of the date of original execution of this
Indenture.
"Affiliate" of any specified Person means any other Person, directly
---------
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Authorized Newspaper" means a newspaper in an official language of
--------------------
the country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in such city or cities specified pursuant to Section 2.03
with respect to the Debt Securities of any series. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any business day in such
city.
"Bank Indebtedness" means any and all amounts payable under or in
-----------------
respect of the Credit Agreement, as amended from time to time, including
principal, premium (if any), interest (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to the
Company whether or not a claim for post-filing interest is allowed in such
proceedings), fees, charges, expenses, reimbursement obligations, guarantees and
all other amounts payable thereunder or in respect thereof.
"Banks" has the meaning specified in the Credit Agreement.
-----
"Bearer Holder" means, with respect to any Bearer Security or Coupon,
-------------
the bearer thereof.
"Bearer Security" means any Debt Security (with or without Coupons),
---------------
title to which passes by delivery only, but does not include any Coupons.
"Board of Directors" means either the Board of Directors of the
------------------
Company or any duly authorized committee or subcommittee of such Board, except
as the context may otherwise require.
3
"business day" means, when used with respect to any Place of Payment
------------
specified pursuant to Section 2.03, any day that is not a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies in
such Place of Payment are authorized or obligated by law to close, except as
otherwise specified pursuant to Section 2.03.
"Capitalized Lease Obligations" means an obligation that is required
-----------------------------
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP; and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
-------------
rights to purchase, warrants, options, participations or other equivalents of or
interests (including partnership interests) in (however designated) equity of
such Person, including any Preferred Stock, but excluding any debt securities
convertible into such equity.
"Common Stock" means the common stock, par value $.01 per share, of
------------
the Company, which stock is currently listed on the New York Stock Exchange.
"Company" means ChiRex Inc., a Delaware corporation, and, subject to
-------
the provisions of Article X, shall also include its successors and assigns.
"Company Order" means a written order of the Company, signed by its
-------------
Chairman of the Board, President or any Vice President and by its Treasurer,
Secretary, any Assistant Treasurer or any Assistant Secretary.
"Consolidated Net Tangible Assets" means at any date the total amount
--------------------------------
of assets that under generally accepted accounting principles would be included
on a consolidated balance sheet of the Company and its Restricted Subsidiaries
as of such date, less the sum of the following items, which would then also be
so included in accordance with generally accepted accounting principles: (a)
related depreciation, amortization and other valuation reserves, (b) certain
investments, less applicable reserves in Unrestricted Subsidiaries, (c) all
treasury stock, goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles and (d) all
4
liabilities and liability in terms of the Company and its Restricted
Subsidiaries (including minority interests in Restricted Subsidiaries held by
persons other than the Company or wholly owned Restricted Subsidiaries) except
(i) the reserves deducted as described in clauses (a) and (b) above, (ii) funded
debt, (iii) provisions for deferred income taxes and (iv) capital stock, surplus
and surplus reserves.
"Consolidated Net Worth" means the total of the amounts shown on the
----------------------
balance sheet of the Company and its consolidated Subsidiaries, determined on a
consolidated basis in accordance with GAAP, as of the end of the most recent
fiscal quarter of the Company ending at least 45 days prior to the taking of any
action for the purpose of which the determination is being made, as (i) the par
or stated value of all outstanding Capital Stock of the Company plus (ii) paid-
in capital or capital surplus relating to such Capital Stock plus (iii) any
retained earnings or earned surplus less (A) any accumulated deficit and (B) any
amounts attributable to Disqualified Stock.
"corporate trust office of the trustee" or other similar term means
-------------------------------------
the office of the Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered in the United States
of America, except that with respect to the presentation of Debt Securities for
payment or for registration of transfer and exchange, such term shall also mean
the office of the Trustee or the Trustee's agent in the Borough of Manhattan,
the city and state of New York, at which at any particular time its corporate
agency business shall be conducted.
"Coupon" means any interest coupon appertaining to any Bearer
------
Security.
"Coupon Security" means any Bearer Security authenticated and
---------------
delivered with one or more Coupons appertaining thereto.
"Credit Agreement" means the Facilities Agreement dated as of October
----------------
30, 1997, among ChiRex (Holdings) Limited as Borrower, Bankers Trust
International PLC and Midland Bank PLC, as Joint Arrangers, the Co-Agents and
the Lenders party thereto, as amended or modified from time to time.
"Currency" means Dollars or Foreign Currency.
--------
5
"Currency Exchange Protection Agreement" means, in respect of any
--------------------------------------
Person, any foreign exchange contract, currency swap agreement, currency option
or other similar agreement or arrangement designed to protect such Person
against fluctuations in currency exchange rates.
"Debt Security" or "Debt Securities" has the meaning stated in the
------------- ---------------
first recital of this Indenture and more particularly means any debt security or
debt securities, as the case may be, of any series authenticated and delivered
under this Indenture.
"Default" means any event which is, or after notice or passage of time
-------
or both would be, an Event of Default.
"Depositary" means, unless otherwise specified by the Company pursuant
----------
to either Section 2.03 or 2.15, with respect to registered Debt Securities of
any series issuable or issued in whole or in part in the form of one or more
Global Securities, The Depository Trust Company, New York, New York, or any
successor thereto registered as a clearing agency under the Exchange Act or
other applicable statute or regulations.
"Designated Senior Indebtedness" means (i) the Bank Indebtedness and
------------------------------
(ii) any other Senior Indebtedness which, at the date of determination, has an
aggregate principal amount outstanding of, or under which, at the date of
determination, the holders thereof, are committed to lend up to, at least $100
million and is specifically designated by the Company in the instrument
evidencing or governing such Senior Indebtedness as "Designated Senior
Indebtedness" for purposes of this Indenture and has been designated as
"Designated Senior Indebtedness" for purposes of this Indenture in an Officers'
Certificate received by the Trustee.
"Disqualified Stock" of a Person means Redeemable Stock of such Person
------------------
as to which the maturity, mandatory redemption, conversion or exchange or
redemption at the option of the holder thereof occurs, or may occur, on or prior
to the first anniversary of the Stated Maturity of the Debt Securities.
"Dollar" or "$" means such currency of the United States as at the
------ -
time of payment is legal tender for the payment of public and private debts.
"Dollar Equivalent" means, with respect to any monetary amount in a
-----------------
Foreign Currency, at any time for the
6
determination thereof, the amount of Dollars obtained by converting such Foreign
Currency involved in such computation into Dollars at the spot rate for the
purchase of Dollars with the applicable Foreign Currency as quoted by Bankers
Trust Company (unless another comparable financial institution is designated by
the Company) in New York, New York at approximately 11:00 a.m. (New York time)
on the date two business days prior to such determination.
"Euro" means the currency created under the Treaty on the European
----
Economic and Monetary Union.
"European Currency Units" has the meaning assigned to it from time to
-----------------------
time by the Council of the European Communities.
"Event of Default" has the meaning specified in Section 6.01.
----------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Floating Rate Security" means a Debt Security that provides for the
----------------------
payment of interest at a variable rate determined periodically by reference to
an interest rate index specified pursuant to Section 2.03.
"Foreign Currency" means a currency (including the Euro) issued by the
----------------
government of any country other than the United States or a composite currency
(including European Currency Units) the value of which is determined by
reference to the value of the currencies of any group of countries.
"GAAP" means generally accepted accounting principles in the United
----
States as in effect as of the date on which the Debt Securities of the
applicable series are issued, including those set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
approved by a significant segment of the accounting profession. All ratios and
computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP consistently applied.
"Global Security" means with respect to any series of Debt Securities
---------------
issued hereunder, a Debt Security which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to the
7
Depositary's instruction, all in accordance with this Indenture and any
Indentures supplemental hereto, or resolution of the Board of Directors and set
forth in an Officers' Certificate, which shall be registered in the name of the
Depositary or its nominee and which shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of, all the Outstanding Debt
Securities of such series or any portion thereof, in either case having the same
terms, including, without limitation, the same original issue date, date or
dates on which principal is due and interest rate or method of determining
interest.
"Guarantee" means any obligation, contingent or otherwise, of any
---------
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation of such other
Person (whether arising by virtue of partnership arrangements, or by agreement
to keep-well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for purposes of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided, however, that the term
-------- -------
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Hedging Obligations" of any Person means the obligations of such
-------------------
Person pursuant to any Interest Rate Protection Agreement or Currency Exchange
Protection Agreement or other similar agreement.
"Holder," "Holder of Debt Securities" or other similar terms means,
------ -------------------------
with respect to a Registered Security, the Registered Holder and, with respect
to a Bearer Security or a Coupon, the Bearer Holder.
"Incur" means issue, assume, Guarantee, incur or otherwise become
-----
liable for; provided, however, that any Indebtedness or Capital Stock of a
-------- -------
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be incurred by such
Subsidiary at the time it becomes a Subsidiary. The terms "Incurred",
"Incurrence" and "Incurring" shall each have a correlative meaning.
8
"Indebtedness" means, with respect to any Person on any date of
------------
determination (without duplication),
(i) the principal of and premium (if any) in respect of indebtedness
of such Person for borrowed money;
(ii) the principal of and premium (if any) in respect of obligations
of such Person evidenced by bonds, debentures, notes or other similar
instruments;
(iii) all Capitalized Lease obligations of such Person;
(iv) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables);
(v) all obligations of such Person in respect of letters of credit,
banker's acceptances or other similar instruments or credit transactions
(including reimbursement obligations with respect thereto), other than
obligations with respect to letters of credit securing obligations (other
than obligations described in (i) through (iv) above) entered into in the
ordinary course of business of such Person to the extent such letters of
credit are not drawn upon or, if and to the extent drawn upon, such drawing
is reimbursed no later than the third business day following receipt by
such Person of a demand for reimbursement following payment on the letter
of credit;
(vi) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to any Subsidiary of the Company, any Preferred Stock (but
excluding, in each case, any accrued dividends);
(vii) all Indebtedness of other Persons secured by a Lien on any asset
of such Person, whether or not such Indebtedness is assumed by such Person;
provided, however, that the amount of such Indebtedness shall be the lesser
-------- -------
of (A) the fair market value of such asset at such date of determination
and (B) the amount of such Indebtedness of such other Persons;
(viii) all Indebtedness of other Persons to the extent Guaranteed by
such Person; and
9
(ix) to the extent not otherwise included in this definition,
obligations in respect of Hedging Obligations.
For purposes of this definition, the maximum fixed redemption, repayment or
repurchase price of any Disqualified Stock or Preferred Stock that does not have
a fixed redemption, repayment or repurchase price shall be calculated in
accordance with the terms of such Stock as if such Stock were redeemed, repaid
or repurchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture; provided, however, that if such Stock is
-------- -------
not then permitted to be redeemed, repaid or repurchased, the redemption,
repayment or repurchase price shall be the book value of such Stock as reflected
in the most recent financial statements of such Person. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any contingent obligations at such date.
"Indenture" means this instrument as originally executed, or, if
---------
amended or supplemented as herein provided, as so amended or supplemented and
shall include the form and terms of particular series of Debt Securities as
contemplated hereunder, whether or not a supplemental Indenture is entered into
with respect thereto.
"Interest" includes, when used with respect to a Bearer Security, any
--------
additional interest payable on such Bearer Security pursuant to Section 3.02 or
4.06.
"Interest Rate Protection Agreement" means, in respect of any Person,
----------------------------------
any interest rate swap agreement, interest rate option agreement, interest rate
cap agreement, interest rate collar agreement, interest rate floor agreement or
other similar agreement or arrangement designed to protect such Person against
fluctuations in interest rates.
"Lien" means any mortgage, pledge, security interest encumbrance, lien
----
or charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Officers' Certificate" means a certificate signed by the Chairman of
---------------------
the Board, the President or any Vice President and by the Treasurer, the
Secretary or any Assistant Treasurer or Assistant Secretary of the Company.
10
Each such certificate shall include the statements provided for in Section
13.05, if applicable.
"Opinion of Counsel" means an opinion in writing signed by legal
------------------
counsel for the Company (which counsel may be an employee of the Company), or
outside counsel for the Company who shall be reasonably satisfactory to the
Trustee. Each such opinion shall include the statements provided for in Section
13.05, if applicable.
"Original Issue Discount Debt Security" means any Debt Security which
-------------------------------------
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.
"Outstanding", when used with respect to any series of Debt
-----------
Securities, means, as of the date of determination, all Debt Securities of that
series theretofore authenticated and delivered under this Indenture, except:
(i) Debt Securities of that series theretofore canceled by the Trustee
or delivered to the Trustee for cancelation;
(ii) Debt Securities of that series for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any paying agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
paying agent) for the Holders of such Debt Securities; provided, that, if
--------
such Debt Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
(iii) Debt Securities of that series which have been paid pursuant to
Section 2.09 or in exchange for or in lieu of which other Debt Securities
have been authenticated and delivered pursuant to this Indenture, other
than any such Debt Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Debt Securities
are held by a bona fide purchaser in whose hands such Debt Securities are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
-------- -------
principal amount of the Outstanding Debt Securities of any series have given any
request, demand,
11
authorization, direction, notice, consent or waiver hereunder,
Debt Securities owned by the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which
the Trustee knows to be so owned shall be so disregarded. Debt Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Debt Securities and that the pledgee is not the
Company or any other obligor upon the Debt Securities or an Affiliate of the
Company or of such other obligor. In determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of an Original Issue Discount Debt 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.
In determining whether the Holders of the requisite principal amount of the
Outstanding Debt Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of a Debt Security denominated in one or more foreign currencies or
currency units that shall be deemed to be Outstanding for such purposes shall be
the Dollar Equivalent, determined in the manner provided as contemplated by
Section 2.03 on the date of original issuance of such Debt Security, of the
principal amount (or, in the case of any Original Issue Discount Security, the
Dollar Equivalent on the date of original issuance of such Security of the
amount determined as provided in the preceding sentence above) of such Debt
Security.
"pari passu", as applied to the ranking of any Indebtedness of a
---- -----
Person in relation to other Indebtedness of such Person, means that each such
Indebtedness either (i) is not subordinate in right of payment to any
Indebtedness or (ii) is subordinate in right of payment to the same Indebtedness
as is the other, and is so subordinate to the same extent, and is not
subordinate in right of payment to each other or to any Indebtedness as to which
the other is not so subordinate.
12
"Person" means any individual, corporation, partnership, joint
------
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Place of Payment" means, when used with respect to the Debt
----------------
Securities of any series, the place or places where the principal of, and
premium, if any, and interest on, the Debt Securities of that series are payable
as specified pursuant to Section 2.03.
"Preferred Stock", as applied to the Capital Stock of any corporation,
---------------
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Principal Property" will mean any manufacturing or research property,
------------------
plant or facility of the Company or any Restricted Subsidiary except any
property that the Board of Directors by resolution declares is not of material
importance to the total business conducted by the Company and its Restricted
Subsidiaries as an entirety.
"Redeemable Stock" means, with respect to any Person, any Capital
----------------
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable) or upon the happening of any event
(i) matures or is mandatorily redeemable pursuant to a sinking fund obligation
or otherwise, (ii) is convertible or exchangeable for Indebtedness (other than
Preferred Stock) or Disqualified Stock or (iii) is redeemable at the option of
the holder thereof, in whole or in part.
"Registered Holder" means the Person in whose name a Registered
-----------------
Security is registered in the Debt Security Register (as defined in Section
2.07(a)).
"Registered Security" means any Debt Security registered as to
-------------------
principal and interest in the Debt Security Register (as defined in Section
2.07(a)).
"Registrar" has the meaning set forth in Section 2.07(a).
---------
"Representative" means the trustee, agent or representative (if any)
--------------
for an issue of Senior Indebtedness.
13
"responsible officer", when used with respect to the Trustee, means
-------------------
any Account Manager or any officer within the Corporate Trust and Agency Group
of the Trustee, including any Vice President, any Assistant Vice President, any
trust officer or any other officer of the Trustee performing functions similar
to those performed by the persons who at the time shall be such officers, and
any other officer of the Trustee to whom corporate trust matters are referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means (a) any Subsidiary other than (1) a
---------------------
Subsidiary the primary business of which consists of one or more of the
following: (i) purchasing amounts receivable, (ii) making loans secured by
accounts receivable or inventories or otherwise providing credit, (iii) making
investment in real estate or providing services directly related thereto or
otherwise engaging in the business of a finance or real estate investment
company, or (iv) leasing equipment, machinery, vehicles, rolling stock and other
articles of use of the business of the Company, or (2) certain named
Subsidiaries; and (b) any Subsidiary described in Clauses (1) or (2) of
paragraph (a) above which at the time of determination shall be a Restricted
Subsidiary pursuant to designation by the Board of Directors hereinafter
provided for.
"Secured Indebtedness" means any Indebtedness of the Company secured
--------------------
by a Lien.
"Securities Act" means the Securities Act of 1933.
--------------
"Senior Indebtedness" means, as to any series of Debt Securities
-------------------
subordinated pursuant to the provisions of Article XII, the Indebtedness of the
Company identified as Senior Indebtedness in the resolution of the Board of
Directors and accompanying Officers' Certificate or supplemental Indenture
setting forth the terms, including as to Subordination, of such series.
"Significant Subsidiary" means a Subsidiary of any Person that would
----------------------
be a "significant subsidiary" as defined in Rule 405 under the Securities Act as
in effect on the date of this Indenture.
"Stated Maturity" means, with respect to any security, the date
---------------
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the
14
holder thereof upon the happening of any contingency beyond the control of the
issuer unless such contingency has occurred).
"Subsidiary" of any Person means any corporation, association,
----------
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by (i) such
Person, (ii) such Person and one or more Subsidiaries of such Person or (iii)
one or more Subsidiaries of such Person.
"Temporary Cash Investments" means any of the following: (i)
--------------------------
investments in U.S. Government Obligations maturing within 90 days of the date
of acquisition thereof, (ii) investments in time deposit accounts, certificates
of deposit and money market deposits maturing within 90 days of the date of
acquisition thereof issued by a bank or trust company which is organized under
the laws of the United States, any State thereof or any foreign country
recognized by the United States having capital, surplus and undivided profits
aggregating in excess of $500,000,000 (or the Dollar Equivalent thereof) and
whose long-term debt is rated "A" or higher according to ▇▇▇▇▇'▇ Investors
Service, Inc. (or such similar equivalent rating by at least one "nationally
recognized statistical rating organization" (as defined in Rule 436 under the
Securities Act)), (iii) repurchase obligations with a term of not more than 7
days for underlying securities of the types described in clause (i) above
entered into with a bank meeting the qualifications described in clause (ii)
above and (iv) investments in commercial paper, maturing not more than 90 days
after the date of acquisition, issued by a corporation (other than an Affiliate
of the Company) organized and in existence under the laws of the United States
or any foreign country recognized by the United States with a rating at the time
as of which any investment therein is made of "P-1" (or higher) according to
▇▇▇▇▇'▇ Investors Service, Inc. or "A-1" (or higher) according to Standard and
Poor's Corporation.
"Trade Payables" means, with respect to any Person, any accounts
--------------
payable or any indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person arising in the ordinary course of business
of such Person in connection with the acquisition of goods or services.
"Trustee" initially means and any other Person or Persons
-------
appointed as such from time to time
15
pursuant to Section 7.08, and, subject to the provisions of Article VII,
includes its or their successors and assigns. If at any time there is more than
one such Person, "Trustee" as used with respect to the Debt Securities of any
series shall mean the Trustee with respect to the Debt Securities of that
series.
"Trust Indenture Act" (except as herein otherwise expressly provided)
-------------------
means the Trust Indenture Act of 1939 as in force at the date of this Indenture
as originally executed and, to the extent required by law, as amended.
"United States" means the United States of America (including the
-------------
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
-------------------
income tax purposes, is a foreign corporation, a nonresident alien individual, a
nonresident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more members of which is, for United States Federal income
tax purposes, a foreign corporation, a nonresident alien individual or a
nonresident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means securities that are (x) direct
---------------------------
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof.
"Yield to Maturity" means the yield to maturity, calculated at the
-----------------
time of issuance of a series of Debt Securities, or, if applicable, at the most
recent redetermination of interest on such series and calculated in accordance
with accepted financial practice.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
--------------------------------------------------
This Indenture is subject to the mandatory provisions of the Trust Indenture Act
which are incorporated by reference in and made a part of this Indenture. The
following Trust Indenture Act terms have the following meanings:
"indenture securities" means the Debt Securities.
16
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other
obligor on the Debt Securities.
All other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, reference to another statute or defined by
rules of the Securities and Exchange Commission have the meanings assigned to
them by such definitions.
SECTION 1.03. Rules of Construction. Unless the context otherwise
----------------------
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) if the applicable series of Debt Securities are subordinated
pursuant to Article XII, unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness;
(7) the principal amount of any noninterest bearing or other discount
security at any date shall be the principal amount thereof that would be
shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be the greater
of (i) the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect to
such Preferred Stock.
17
ARTICLE II
Debt Securities
---------------
SECTION 2.01. Forms Generally. The Debt Securities and Coupons, if
----------------
any, of each series shall be in substantially the form established without the
approval of any Holder 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 Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
the Company may deem appropriate (and, if not contained in a supplemental
Indenture entered into in accordance with Article IX, as are not prohibited by
the provisions of this Indenture) or as may be required or appropriate to comply
with any law or with any rules made pursuant thereto or with any rules of any
securities exchange on which such series of Debt Securities may be listed, or to
conform to general usage, or as may, consistently herewith, be determined by the
officers executing such Debt Securities and Coupons, as evidenced by their
execution of the Debt Securities and Coupons.
The definitive Debt Securities of each series and Coupons, if any,
shall be printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Debt Securities and Coupons, as evidenced by their execution of such Debt
Securities and Coupons.
Each Bearer Security and each Coupon shall bear a legend substantially
to the following effect: "Any United States Person who holds this obligation
will be subject to limitations under the United States Federal income tax laws,
including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code."
SECTION 2.02. Form of Trustee's Certificate of Authentication. The
------------------------------------------------
Trustee's Certificate of Authentication on all Debt Securities authenticated by
the Trustee shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
18
,
As Trustee
By .....................
Authorized Signature
SECTION 2.03. Principal Amount; Issuable in Series. The aggregate
-------------------------------------
principal amount of Debt Securities which may be issued, executed,
authenticated, delivered and outstanding under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall
be established, without the approval of any Holders, in or pursuant to a
resolution of the Board of Directors and set forth in an Officers' Certificate,
or established in one or more Indentures supplemental hereto, prior to the
issuance of Debt Securities of any series any or all of the following:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to this Article II);
(3) the date or dates on which the principal and premium, if any, of
the Debt Securities of the series are payable;
(4) the rate or rates (which may be fixed or variable) at which the
Debt Securities of the series shall bear interest, if any, or the method of
determining such rate or rates, the date or dates from which such interest
shall accrue, the interest payment dates on which such interest shall be
payable, or the method by which such date will be determined, in the case
of Registered Securities, the record dates for the determination of Holders
thereof to whom such interest is payable; and the basis upon which interest
will be calculated if other than that of a 360-day year of twelve thirty-
day months;
(5) the place or places, if any, in addition to or instead of the
corporate trust office of the Trustee (in the case of Registered
Securities) or the principal
19
London office of the Trustee (in the case of Bearer Securities), where the
principal of, and premium, if any, and interest on, Debt Securities of the
series shall be payable;
(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which Debt Securities of the series may
be redeemed, in whole or in part, at the option of the Company or
otherwise;
(7) whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer
Securities are to be issued, whether Coupons will be attached thereto,
whether Bearer Securities of the series may be exchanged for Registered
Securities of the series and the circumstances under which and the places
at which any such exchanges, if permitted, may be made;
(8) if any Debt Securities of the series are to be issued as Bearer
Securities or as one or more Global Securities representing individual
Bearer Securities of the series, (x) whether the provisions of Sections
3.02 and 4.06 or other provisions for payment of additional interest or tax
redemptions shall apply and, if other provisions shall apply, such other
provisions; (y) whether interest in respect of any portion of a temporary
Bearer Security of the series (delivered pursuant to Section 2.08) payable
in respect of any interest payment date prior to the exchange of such
temporary Bearer Security for definitive Bearer Securities of the series
shall be paid to any clearing organization with respect to the portion of
such temporary Bearer Security held for its account and, in such event, the
terms and conditions (including any certification requirements) upon which
any such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such interest
payment date; and (z) the terms upon which a temporary Bearer Security may
be exchanged for one or more definitive Bearer Securities of the series;
(9) the obligation, if any, of the Company to redeem, purchase or
repay Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the price or
prices at which and the period or periods within which and the terms and
conditions upon which Debt Securities
20
of the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligations;
(10) the terms, if any, upon which the Debt Securities of the series
may be convertible into or exchanged for Common Stock, Preferred Stock
(which may be represented by depositary shares), other Debt Securities or
warrants for Common Stock, Preferred Stock or Indebtedness or other
securities of any kind of the Company or any other obligor and the terms
and conditions upon which such conversion or exchange shall be effected,
including the initial conversion or exchange price or rate, the conversion
or exchange period and any other provision in addition to or in lieu of
those described herein;
(11) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Debt Securities of the series shall be
issuable;
(12) if the amount of principal of or any premium or interest on Debt
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts will be determined;
(13) if the principal amount payable at the Stated Maturity of Debt
Securities of the series will not be determinable as of any one or more
dates prior to such Stated Maturity, the amount which will be deemed to be
such principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any maturity
other than the Stated Maturity or which will be deemed to be outstanding as
of any such date (or, in any such case, the manner in which such deemed
principal amount is to be determined); and the manner of determining the
equivalent thereof in the currency of the United States of America for
purposes of the definition of Dollar Equivalent;
(14) any changes or additions to Article XI, including the addition of
additional covenants that may be subject to the covenant defeasance option
pursuant to Section 11.02(b)(ii);
(15) if other than such coin or Currency of the United States as at
the time of payment is legal tender for payment of public and private
debts, the coin or Currency or Currencies or units of two or more
Currencies in which payment of the principal of, and
21
premium, if any, and interest on, Debt Securities of the series shall be
payable;
(16) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.01 or provable in bankruptcy pursuant to Section 6.02;
(17) the terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Debt Securities of the series of any
properties, assets, moneys, proceeds, securities or other collateral,
including whether certain provisions of the Trust Indenture Act are
applicable and any corresponding changes to provisions of this Indenture as
currently in effect;
(18) any addition to or change in the Events of Default with respect
to the Debt Securities of the series and any change in the right of the
Trustee or the Holders to declare the principal of, and premium and
interest on, such Debt Securities due and payable;
(19) if the Debt Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities, the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Debt Securities in
definitive registered form; and the Depositary for such Global Security or
Securities and the form of any legend or legends to be borne by any such
Global Security or Securities in addition to or in lieu of the legend
referred to in Section 2.15;
(20) any trustees, authenticating or paying agents, transfer agents or
registrars;
(21) the applicability of, and any addition to or change in the
covenants and definitions currently set forth in this Indenture or in the
terms currently set forth in Article X, including conditioning any merger,
conveyance, transfer or lease permitted by Article X upon the satisfaction
of an Indebtedness coverage standard by the Company and Successor Company
(as defined in Article X);
(22) the terms, if any, of any Guarantee of the payment of principal
of, and premium, if any, and interest on, Debt Securities of the series and
any
22
corresponding changes to the provisions of this Indenture as currently
in effect;
(23) the subordination, if any, of the Debt Securities of the series
pursuant to Article XII and any changes or additions to Article XII;
(24) with regard to Debt Securities of the series that do not bear
interest, the dates for certain required reports to the Trustee; and
(25) any other terms of the Debt Securities of the series (which terms
shall not be prohibited by the provisions of this Indenture).
All Debt Securities of any one series and the Coupons, if any,
appertaining thereto shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to such resolution of the
Board of Directors and as set forth in such Officers' Certificate or in any such
Indenture supplemental hereto.
SECTION 2.04. Execution of Debt Securities. The Debt Securities and
-----------------------------
the Coupons, if any, shall be signed on behalf of the Company by its Chairman of
the Board, its President or a Vice President and by its Secretary, an Assistant
Secretary, a Treasurer or an Assistant Treasurer. Such signatures upon the Debt
Securities and Coupons may be the manual or facsimile signatures of the present
or any future such authorized officers and may be imprinted or otherwise
reproduced on the Debt Securities and Coupons. The seal of the Company, if any,
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Debt Securities and Coupons.
Only such Debt Securities and Coupons as shall bear thereon a
certificate of authentication substantially in the form hereinbefore recited,
signed manually by the Trustee, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Debt Security or Coupon executed by the Company shall be
conclusive evidence that the Debt Security or Coupon so authenticated has been
duly authenticated and delivered hereunder.
In case any officer of the Company who shall have signed any of the
Debt Securities or Coupons shall cease to be such officer before the Debt
Securities or Coupons so signed shall have been authenticated and delivered by
the Trustee, or disposed of by the Company, such Debt Securities or Coupons
nevertheless may be authenticated and delivered
23
or disposed of as though the Person who signed such Debt Securities or Coupons
had not ceased to be such officer of the Company; and any Debt Security or
Coupon may be signed on behalf of the Company by such Persons as, at the actual
date of the execution of such Debt Security or Coupon, shall be the proper
officers of the Company, although at the date of such Debt Security or Coupon or
of the execution of this Indenture any such Person was not such officer.
SECTION 2.05. Authentication and Delivery of Debt Securities. At any
-----------------------------------------------
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Debt Securities, with appropriate Coupons, if any, of
any series executed by the Company to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said Debt Securities and
Coupons to or upon a Company Order. In authenticating such Debt Securities and
Coupons, and accepting the additional responsibilities under this Indenture in
relation to such Debt Securities and Coupons, if any, the Trustee shall be
entitled to receive, and (subject to Section 7.01) shall be fully protected in
relying upon:
(1) a copy of any resolution or resolutions of the Board of Directors,
certified by the Secretary or Assistant Secretary of the Company,
authorizing the terms of issuance of any series of Debt Securities and
Coupons;
(2) an executed supplemental Indenture, if any;
(3) an Officers' Certificate; and
(4) an opinion of Counsel prepared in accordance with Section 13.05
which shall also state:
(a) that the form of such Debt Securities and Coupons 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 Indenture;
(b) that the terms of such Debt Securities and Coupons have been
established by or pursuant to a resolution of the Board of Directors
or by a supplemental Indenture as permitted by Section 2.03 in
conformity with the provisions of this Indenture;
24
(c) that such Debt Securities and Coupons, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability;
(d) that the Company has the corporate power to issue such Debt
Securities and Coupons and has duly taken all necessary corporate
action with respect to such issuance;
(e) that the issuance of such Debt Securities and Coupons will
not contravene the charter 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 is bound;
(f) that authentication and delivery of such Debt Securities and
Coupons and the execution and delivery of any supplemental Indenture
will not violate the terms of this Indenture; and
(g) such other matters as the Trustee may reasonably request.
Such Opinion of Counsel need express no opinion as to whether a court
in the United States would render a money judgment in a currency other than that
of the United States.
The Trustee shall have the right to decline to authenticate and
deliver any Debt Securities or Coupons under this Section 2.05 if the Trustee,
being advised by counsel, determines that such action 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, trustees or vice presidents shall
determine that such action would expose the Trustee to personal liability to
existing Holders.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Debt
25
Securities and Coupons, if any, of any series. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Debt Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, paying agent or agent
for service of notices and demands.
Unless otherwise provided in the form of Debt Security for any series,
each Debt Security shall be dated the date of its authentication.
SECTION 2.06. Denomination of Debt Securities. Unless otherwise
--------------------------------
provided in the form of Debt Security for any series, the Debt Securities of
each series shall be issuable only as Registered Securities in such
denominations as shall be specified or contemplated by Section 2.03. In the
absence of any such specification with respect to the Debt Securities of any
series, the Debt Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
SECTION 2.07. Registration of Transfer and Exchange. (a) The
--------------------------------------
Company shall keep or cause to be kept a register for each series of Registered
Securities issued hereunder (hereinafter collectively referred to as the "Debt
Security Register"), in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and the transfer of Registered Securities as in this Article II
provided. At all reasonable times the Debt Security Register shall be open for
inspection by the Trustee. Subject to Section 2.15, upon due presentment for
registration of transfer of any Registered Security at any office or agency to
be maintained by the Company in accordance with the provisions of Section 4.02,
the Company shall execute and the Trustee shall authenticate and deliver in the
name of the transferee or transferees a new Registered Security or Registered
Securities of authorized denominations for a like aggregate principal amount.
In no event may Registered Securities, including Registered Securities received
in exchange for Bearer Securities, be exchanged for Bearer Securities.
Unless and until otherwise determined by the Company by resolution of
the Board of Directors, the register of the Company for the purpose of
registration, exchange or registration of transfer of the Registered Securities
shall be kept at the corporate trust office of
26
the Trustee and, for this purpose, the Trustee shall be designated "Registrar".
Registered Securities of any series (other than a Global Security,
except as set forth below) may be exchanged for a like aggregate principal
amount of Registered Securities of the same series of other authorized
denominations. Subject to Section 2.15, Registered Securities to be exchanged
shall be surrendered at the office or agency to be maintained by the Company as
provided in Section 4.02, and the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor the Registered Security or
Registered Securities which the Holder making the exchange shall be entitled to
receive.
At the option of the Holder of Bearer Securities of any series, except
as otherwise specified as contemplated by Section 2.03(8) or 2.03(19) with
respect to a Global Security representing Bearer Securities, Bearer Securities
of such series may be exchanged for Registered Securities (if the Debt
Securities of such series are issuable as Registered Securities) or Bearer
Securities of the same series, of any authorized denomination or denominations,
of like tenor and aggregate principal amount, upon surrender of the Bearer
Securities to be exchanged at the office or agency of the Company maintained for
such purpose, with all unmatured Coupons and all matured Coupons in Default
thereto appertaining; provided, however, that delivery of a Bearer Security
-------- -------
shall occur only outside the United States. If such Holder is unable to produce
any such unmatured Coupon or Coupons or matured Coupon or Coupons in Default,
such exchange may be effected if such Holder's Bearer Securities are accompanied
by payment in funds acceptable to the Company and the Trustee in an amount equal
to the face amount of such missing Coupon or Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any paying agent harmless. If thereafter such Holder shall
surrender to any paying agent any such missing Coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that, except as otherwise provided in
-------- -------
Section 2.12, interest represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an office or agency located
outside the United States.
Whenever any Debt Securities are so surrendered for exchange, the
Company shall execute, and the Trustee
27
shall authenticate and deliver, the Debt Securities that the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States Federal
income tax laws and regulations applicable to Debt Securities in effect at the
time of such exchange.
(b) All Registered Securities presented or surrendered for
registration of transfer, exchange or payment shall (if so required by the
Company, the Trustee or the Registrar) be duly endorsed or be accompanied by a
written instrument or instruments of transfer, in form satisfactory to the
Company, the Trustee and the Registrar, duly executed by the Registered Holder
or his attorney duly authorized in writing.
All Debt Securities issued in exchange for or upon transfer of Debt
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture as the Debt
Securities surrendered for such exchange or transfer.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities (except as provided by Section 2.09), but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto, other than those
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to the Holders.
The Company shall not be required (a) to issue, register the transfer
of or exchange any Debt Securities for a period of 15 days next preceding any
mailing of notice of redemption of Debt Securities of such series or (b) to
register the transfer of or exchange any Debt Securities selected, called or
being called for redemption; provided, however, that, if specified pursuant to
-------- -------
Section 2.03, any Bearer Securities of any series that are exchangeable for
Registered Securities and that are called for redemption pursuant to Section
3.02 may, to the extent permitted by applicable law, be exchanged for one or
more Registered Securities of such series during the period preceding the
redemption date therefor.
Prior to the due presentation for registration of transfer of any Debt
Security, the Company, the Trustee, any paying agent or any Registrar may deem
and treat the Person in whose name a Debt Security is registered as the absolute
28
owner of such Debt Security for the purpose of receiving payment of principal
of, and premium, if any, and interest on, such Debt Security and for all other
purposes whatsoever, whether or not such Debt Security is overdue, and none of
the Company, the Trustee, any paying agent or Registrar shall be affected by
notice to the contrary.
None of the Company, the Trustee, any agent of the Trustee, any paying
agent or any Registrar will have any responsibility or liability for any aspect
of the records relating to, or payments made on account of, beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 2.08. Temporary Debt Securities. Pending the preparation of
--------------------------
definitive Debt Securities of any series, the Company may execute and the
Trustee shall authenticate and deliver temporary Debt Securities (printed,
lithographed, photocopied, typewritten or otherwise produced) of any authorized
denomination, and substantially in the form of the definitive Debt Securities in
lieu of which they are issued, in registered form or, if authorized, in bearer
form with one or more Coupons or without Coupons, and with such omissions,
insertions and variations as may be appropriate for temporary Debt Securities
and Coupons, all as may be determined by the Company with the concurrence of the
Trustee. Temporary Debt Securities and Coupons may contain such reference to
any provisions of this Indenture as may be appropriate. Every temporary Debt
Security shall be executed by the Company and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Debt Securities.
If temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. Except as otherwise specified as contemplated by Section
2.03(8)(z) with respect to a series of Debt Securities issuable as Bearer
Securities or as one or more Global Securities representing individual Bearer
Securities of the series, (a) after the preparation of definitive Debt
Securities of such series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series upon surrender of the
temporary Debt Securities of such series at the office or agency of the Company
at a Place of Payment for such series, without charge to the Holder thereof,
except as provided in Section 2.07 in connection with a transfer and except that
a Person receiving definitive Bearer Securities shall bear the
29
cost of insurance, postage, transportation and the like unless otherwise
specified pursuant to Section 2.03, and (b) upon surrender for cancelation of
any one or more temporary Debt Securities of any series (accompanied by any
unmatured Coupons appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Debt Securities of the same series of authorized
denominations and of like tenor; provided, however, that no definitive Bearer
-------- -------
Security shall be delivered in exchange for a temporary Registered Security; and
provided, further, however, that delivery of a Global Security representing
-------- ------- -------
individual Bearer Securities or a Bearer Security shall occur only outside the
United States. Until so exchanged, temporary Debt Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Debt Securities of such series, except as otherwise specified as
contemplated by Section 2.03(8)(y) with respect to the payment of interest on
Global Securities in temporary form.
Unless otherwise specified pursuant to Section 2.03, the Company will
execute and deliver each definitive Global Security representing individual
Bearer Securities and each Bearer Security to the Trustee at its principal
office in London or such other place outside the United States specified
pursuant to Section 2.03.
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Debt Securities represented
thereby pursuant to Section 2.07 or this Section 2.08, the temporary Global
Security shall be endorsed by the Trustee to reflect the reduction of the
principal amount evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by the amount to be
exchanged and endorsed.
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities.
-----------------------------------------------------
If (i) any mutilated Debt Security or any mutilated Coupon with the Coupon
Security to which it appertains (and all unmatured Coupons attached thereto) is
surrendered to the Trustee at its corporate trust office (in the case of
Registered Securities) or at its principal London office (in the case of Bearer
Securities) or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt Security or any
Coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them and any paying agent
harmless, and neither the Company nor the Trustee receives
30
notice that such Debt Security or Coupon has been acquired by a bona fide
purchaser, then the Company shall execute and, upon a Company Order, the Trustee
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Debt Security or in exchange for the Coupon
Security to which such mutilated, destroyed, lost or stolen Coupon appertained,
a new Debt Security of the same series of like tenor, form, terms and principal
amount, bearing a number not contemporaneously Outstanding, and, in the case of
a Coupon Security, with such Coupons attached thereto that neither gain nor loss
in interest shall result from such exchange or substitution. Upon the issuance
of any substituted Debt 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 Debt
Security or Coupon which has matured or is about to mature or which has been
called for redemption shall become mutilated or be destroyed, lost or stolen,
the Company may, instead of issuing a substituted Debt Security or Coupon, pay
or authorize the payment of the same (without surrender thereof except in the
case of a mutilated Debt Security or Coupon) if the applicant for such payment
shall furnish the Company and the Trustee with such security or indemnity as
either may require to save it harmless from all risk, however remote, and, in
case of destruction, loss or theft, evidence to the satisfaction of the Company
and the Trustee of the destruction, loss or theft of such Debt Security or
Coupon and of the ownership thereof; provided, however, that payment of
-------- -------
principal of, and premium, if any, and interest on, Bearer Securities or Coupons
shall, except as otherwise provided in Section 2.12, be payable only at an
office or agency located outside the United States.
Every substituted Debt Security of any series, with its Coupons, if
any, issued pursuant to the provisions of this Section 2.09 by virtue of the
fact that any Debt Security or Coupon is destroyed, lost or stolen shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Debt Security or Coupon shall be found at
any time, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Debt Securities of that series and
Coupons, if any, duly issued hereunder. All Debt Securities and Coupons, if
any, 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 Debt Securities or Coupons, and shall
preclude any and all other rights or remedies, notwithstanding any law or
statute existing or hereafter enacted to the contrary with
31
respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION 2.10. Cancelation of Surrendered Debt Securities. All Debt
-------------------------------------------
Securities surrendered for payment, redemption, registration of transfer or
exchange and all Coupons surrendered for payment or exchange shall, if
surrendered to the Company or any paying agent or a Registrar, be delivered to
the Trustee for cancelation by it, or if surrendered to the Trustee, shall be
canceled by it, and no Debt Securities or Coupons shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. All canceled Debt Securities and Coupons held by the Trustee shall
be destroyed (subject to the record retention requirements of the Exchange Act)
and certification of their destruction delivered to the Company, unless
otherwise directed. On request of the Company, the Trustee shall deliver to the
Company canceled Debt Securities and Coupons held by the Trustee. If the
Company shall acquire any of the Debt Securities or Coupons, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented thereby unless and until the same are delivered or
surrendered to the Trustee for cancelation. The Company may not issue new Debt
Securities or Coupons to replace Debt Securities or Coupons it has redeemed,
paid or delivered to the Trustee for cancelation.
SECTION 2.11. Provisions of the Indenture and Debt Securities for the
-------------------------------------------------------
Sole Benefit of the Parties and the Holders. Nothing in this Indenture or in
--------------------------------------------
the Debt Securities or Coupons, expressed or implied, shall give or be construed
to give to any Person, other than the parties hereto, the Holders or any
Registrar or paying agent, any legal or equitable right, remedy or claim under
or in respect of this Indenture, or under any covenant, condition or provision
herein contained; all its covenants, conditions and provisions being for the
sole benefit of the parties hereto, the Holders and any Registrar and paying
agents.
SECTION 2.12. Payment of Interest; Interest Rights Preserved. (a)
-----------------------------------------------
Interest on any Registered Security that is payable and is punctually paid or
duly provided for on any interest payment date shall be paid to the Person in
whose name such Registered Security is registered at the close of business on
the regular record date for such interest notwithstanding the cancelation of
such Registered Security upon any transfer or exchange subsequent to the regular
record date. In case a Coupon Security of any series is surrendered in exchange
for a Registered Security of such series after the close of business (at an
office or
32
agency in a Place of Payment for such series) on any regular record date and
before the opening of business (at such office or agency) on the next succeeding
interest payment date, such Coupon Security shall be surrendered without the
Coupon relating to such interest payment date and interest will not be payable
on such interest payment date in respect of the Registered Security issued in
exchange for such Coupon Security, but will be payable only to the Holder of
such Coupon when due in accordance with the provisions of this Indenture.
Payment of interest on Registered Securities shall be made at the corporate
trust office of the Trustee (except as otherwise specified pursuant to Section
2.03), or at the option of the Company, by check mailed to the address of the
Person entitled thereto as such address shall appear in the Debt Security
Register or, if provided pursuant to Section 2.03 and in accordance with
arrangements satisfactory to the Trustee, at the option of the Registered Holder
by wire transfer to an account designated by the Registered Holder.
(b) No interest shall be payable with respect to a Bearer Security or
Coupon unless such certification requirements as are specified pursuant to
Section 2.03(8)(z) are satisfied with respect to such Bearer Security or Coupon.
Interest on any Coupon Security that is payable and is punctually paid or duly
provided for on any interest payment date shall be paid to the Holder of the
Coupon that has matured on such interest payment date upon surrender of such
Coupon on such interest payment date at the principal London office of the
Trustee or at such other Place of Payment outside the United States specified
pursuant to Section 2.03.
Interest on any Bearer Security (other than a Coupon Security) that is
payable and is punctually paid or duly provided for on any interest payment date
shall be paid to the Holder of the Bearer Security upon presentation of such
Bearer Security and notation thereon on such interest payment date at the
principal London office of the Trustee or at such other Place of Payment outside
the United States specified pursuant to Section 2.03.
Unless otherwise specified pursuant to Section 2.03, at the direction
of the Holder of any Bearer Security or Coupon payable in Dollars, and subject
to applicable laws and regulations, payments in respect of such Bearer Security
or Coupon will be made by check drawn on a bank in New York, New York or, in
accordance with arrangements satisfactory to the Trustee, by wire transfer to a
Dollar account maintained by such Holder with a bank outside the United States.
If such payment at the offices
33
of all paying agents outside the United States becomes illegal or is effectively
precluded because of the imposition of exchange controls or similar restrictions
on the full payment or receipt of such amounts in Dollars, then, to the extent
permitted by United States Federal tax law, the Company will appoint an office
or agent in the United States at which such payment may be made. Unless
otherwise specified pursuant to Section 2.03, at the direction of the Holder of
any Bearer Security or Coupon payable in a Foreign Currency, payment on such
Bearer Security or Coupon will be made by a check drawn on a bank outside the
United States or, in accordance with arrangements satisfactory to the Trustee,
by wire transfer to an appropriate account maintained by such Holder outside the
United States. Except as provided in this paragraph, no payment on any Bearer
Security or Coupon will be made by mail to an address in the United States or by
transfer to an account in the United States.
(c) Subject to the foregoing provisions of this Section 2.12 and
Section 2.17, each Debt Security of a particular series delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Debt Security of the same series shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
SECTION 2.13. Securities Denominated in Foreign Currencies. (a)
---------------------------------------------
Except as otherwise specified pursuant to Section 2.03 for Bearer Securities of
any series, payment of the principal of, and premium, if any, and interest on,
Bearer Securities of such series denominated in any Currency will be made in
such Currency.
(b) Except as otherwise specified pursuant to Section 2.03 for
Registered Securities of any series, payment of the principal of, and premium,
if any, and interest on, Registered Securities of such series will be made in
Dollars.
(c) For the purposes of calculating the principal amount of Debt
Securities of any series denominated in a Foreign Currency or in units of two or
more Foreign Currencies (including European Currency Units) for any purpose
under this Indenture, the principal amount of such Debt Securities at any time
Outstanding shall be deemed to be the Dollar Equivalent of such principal amount
as of the date of any such calculation.
In the event any Foreign Currency or currencies or units of two or
more Currencies in which any payment with
34
respect to any series of Debt Securities may be made ceases to be a freely
convertible Currency on United States Currency markets, for any date thereafter
on which payment of principal of, or premium, if any, or interest on, the Debt
Securities of a series is due, the Company shall select the Currency of payment
for use on such date, all as provided in the Debt Securities of such series. In
such event, the Company shall, as provided in the Debt Securities of such
series, notify the Trustee of the Currency which it has selected to constitute
the funds necessary to meet the Company's obligations on such payment date and
of the amount of such Currency to be paid. Such amount shall be determined as
provided in the Debt Securities of such series. The payment to the Trustee with
respect to such payment date shall be made by the Company solely in the Currency
so selected.
SECTION 2.14. Wire Transfers. Notwithstanding any other provision to
---------------
the contrary in this Indenture, the Company may make any payment of moneys
required to be deposited with the Trustee on account of principal of, or
premium, if any, or interest on, the Debt Securities (whether pursuant to
optional or mandatory redemption payments, interest payments or otherwise) by
wire transfer in immediately available funds to an account designated by the
Trustee on or before the date such moneys are to be paid to the Holders of the
Debt Securities in accordance with the terms hereof.
SECTION 2.15. Securities Issuable in the Form of a Global Security.
-----------------------------------------------------
(a) If the Company shall establish pursuant to Sections 2.01 and 2.03 that the
Debt Securities of a particular series are to be issued in whole or in part in
the form of one or more Global Securities, then the Company shall execute and
the Trustee or its agent shall, in accordance with Section 2.05, authenticate
and deliver, such Global Security or Securities, which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Debt Securities of such series to be represented by such Global
Security or Securities, or such portion thereof as the Company shall specify in
an Officers' Certificate, (ii) shall be registered in the name of the Depositary
for such Global Security or Securities or its nominee, (iii) shall be delivered
by the Trustee or its agent to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for the individual Debt
Securities represented hereby, this Global Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary
35
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary, or such other legend as may then be required by the Depositary for
such Global Security or Securities."
(b) Notwithstanding any other provision of this Section 2.15 or of
Section 2.07 to the contrary, and subject to the provisions of paragraph (c)
below, unless the terms of a Global Security expressly permit such Global
Security to be exchanged in whole or in part for definitive Debt Securities in
registered form, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 2.07, only by the Depositary to a nominee
of the Depositary for such Global Security, or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary, or by the Depositary or a
nominee of the Depositary to a successor Depositary for such Global Security
selected or approved by the Company, or to a nominee of such successor
Depositary.
(c) (i) If at any time the Depositary for a Global Security or
Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or Securities or if at any time the
Depositary for the Debt Securities for such series shall no longer be eligible
or in good standing under the Exchange Act or other applicable statute, rule or
regulation, the Company shall appoint a successor Depositary with respect to
such Global Security or Securities. If a successor Depositary for such Global
Security or Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company
shall execute, and the Trustee or its agent, upon receipt of a Company Order for
the authentication and delivery of such individual Debt Securities of such
series in exchange for such Global Security, will authenticate and deliver,
individual Debt Securities of such series of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security or Securities.
(ii) The Company may at any time and in its sole discretion determine
that the Debt Securities of any series or portion thereof issued or issuable in
the form of one or more Global Securities shall no longer be represented by such
Global Security or Securities. In such event the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
individual Debt Securities of such series in exchange in whole or in part for
such Global Security, will authenticate
36
and deliver individual Debt Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of such series or portion thereof in exchange for such Global Security or
Securities.
(iii) If specified by the Company pursuant to Sections 2.01 and 2.03
with respect to Debt Securities issued or issuable in the form of a Global
Security, the Depositary for such Global Security may surrender such Global
Security in exchange in whole or in part for individual Debt Securities of such
series of like tenor and terms in definitive form on such terms as are
acceptable to the Company, the Trustee and such Depositary. Thereupon the
Company shall execute, and the Trustee or its agent upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series shall authenticate and deliver, without service charge, (1) to each
Person specified by such Depositary a new Debt Security or Securities of the
same series of like tenor and terms and of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and (2) to such
Depositary a new Global Security of like tenor and terms and in an authorized
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of Debt
Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee or its agent will
authenticate and deliver individual Debt Securities. In case a Coupon Security
of any series is surrendered in exchange for a Registered Security of such
series after the close of business (at an office or agency in a Place of Payment
for such series) on any special record date and before the opening of business
(at such office or agency) on the related proposed date of payment of Defaulted
Interest, such Coupon Security shall be surrendered without the Coupon relating
to such proposed date of payment and Defaulted Interest will not be payable on
such proposed date of payment in respect of the Registered Security issued in
exchange for such Coupon Security, but will be payable only to the Holder of
such Coupon when due in accordance with the provisions of this Indenture. Upon
the exchange of the entire principal amount of a Global Security for individual
Debt Securities, such Global Security shall be canceled by the Trustee or its
agent. Except as provided in the preceding paragraph, Registered Securities
issued in exchange for a Global Security pursuant to this Section 2.15 shall be
registered
37
in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or the Registrar. The
Trustee or the Registrar shall deliver such Registered Securities to the Persons
in whose names such Registered Securities are so registered.
(v) Payments in respect of the principal of and interest on any Debt
Securities registered in the name of the Depositary or its nominee will be
payable to the Depositary or such nominee in its capacity as the registered
owner of such Global Security. The Company and the Trustee may treat the person
in whose names the Debt Securities, including the Global Security, are
registered as the owner thereof for the purpose of receiving such payments and
for any and all other purposes whatsoever. None of the Company, the Trustee,
any Registrar, the paying agent or any agent of the Company or the Trustee will
have any responsibility or liability for (a) any aspect of the records relating
to or payments made on account of the beneficial ownership interests of the
Global Security by the Depositary or its nominee or any of the Depositary's
direct or indirect participants, or for maintaining, supervising or reviewing
any records of the Depositary, its nominee or any of its direct or indirect
participants relating to the beneficial ownership interests of the Global
Security, (b) the payments to the beneficial owners of the Global Security of
amounts paid to the Depositary or its nominee, or (c) any other matter relating
to the actions and practices of the Depositary, its nominee or any of its direct
or indirect participants. None of the Company, the Trustee or any such agent
will be liable for any delay by the Depositary, its nominee, or any of its
direct or indirect participants in identifying the beneficial owners of the Debt
Securities, and the Company and the Trustee may conclusively rely on, and will
be protected in relying on, instructions from the Depositary or its nominee for
all purposes (including with respect to the registration and delivery, and the
respective principal amounts, of the Debt Securities to be issued).
The Trustee shall deliver individual Bearer Securities issued in
exchange for a Global Security pursuant to this Section 2.15 to the Persons and
in such authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee; provided, however, that individual Bearer Securities
-------- -------
shall be delivered in exchange for a Global Security only in accordance with the
procedures as may be specified pursuant to Section 2.03.
38
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States Federal
income tax laws and regulations applicable to debt Securities in effect at the
time of such exchange.
SECTION 2.16. Medium Term Securities. Notwithstanding any contrary
-----------------------
provision herein, if all Debt Securities of a series are not to be originally
issued at one time, it shall not be necessary for the Company to deliver to the
Trustee an Officers' Certificate, resolutions of the Board of Directors,
supplemental Indenture, Opinion of Counsel or written order or any other
document otherwise required pursuant to Section 2.01, 2.03, 2.05 or 13.05 at or
prior to the time of authentication of each Debt Security of such series if such
documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first such Debt Security of such
series to be issued; provided, that any subsequent request by the Company to the
--------
Trustee to authenticate Debt Securities of such series upon original issuance
shall constitute a representation and warranty by the Company that, as of the
date of such request, the statements made in the Officers' Certificate delivered
pursuant to Section 2.05 or 13.05 shall be true and correct as if made on such
date and that the Opinion of Counsel delivered at or prior to such time of
authentication of an original issuance of Debt Securities shall specifically
state that it shall relate to all subsequent issuances of Debt Securities of
such series that are identical to the Debt Securities issued in the first
issuance of Debt Securities of such series.
A Company Order delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph, may provide that Debt
Securities which are the subject thereof will be authenticated and delivered by
the Trustee or its agent on original issue from time to time upon the telephonic
or written order of Persons designated in such written order (any such
telephonic instructions to be promptly confirmed in writing by such Person) and
that such Persons are authorized to determine, consistent with the Officers'
Certificate, supplemental Indenture or resolution of the Board of Directors
relating to such written order, such terms and conditions of such Debt
Securities as are specified in such Officers' Certificate, supplemental
Indenture or such resolution.
SECTION 2.17. Defaulted Interest. (a) Any interest on any Debt
-------------------
Security of a particular series which is payable, but is not punctually paid or
duly provided for, on the dates and in the manner provided in the Debt
39
Securities of such series and in this Indenture (herein called "Defaulted
Interest") shall, if such Debt Security is a Registered Security, forthwith
cease to be payable to the Registered Holder thereof on the relevant record date
by virtue of having been such Registered Holder, and such Defaulted Interest may
be paid by the Company, at its election in each case, as provided in clause (i)
or (ii) below:
(i) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series are
registered at the close of business on a special record date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Registered Security of
such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
special record date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such special record date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed,
first-class postage pre-paid, to each Holder thereof at its address as it
appears in the Security Register, not less than 10 days prior to such
special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series are registered at the close of
business on such special record date. In case a Coupon Security of any
such series is surrendered in exchange for a Registered Security of such
series after the close of business (at an office or agency in a Place of
Payment for such series) on any special record date and before the opening
of business (at such office or agency) on the
40
related proposed date of payment of Defaulted Interest, such Coupon
Security shall be surrendered without the Coupon relating to such proposed
date of payment and Defaulted Interest will not be payable on such proposed
date of payment in respect of the Registered Security issued in exchange
for such Coupon Security, but will be payable only to the Holder of such
Coupon when due in accordance with the provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest on the
Registered Securities of such series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Registered Securities of such series may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
(b) Any Defaulted Interest payable in respect of Bearer Securities of
any series shall be payable pursuant to such procedures as may be satisfactory
to the Trustee in such manner that there is no discrimination between the
Holders of Registered Securities (if any) and Bearer Securities of such series,
and notice of the payment date therefor shall be given by the Trustee, in the
name and at the expense of the Company, in the manner provided in Section 13.03
not more than 25 days and not less than 20 days prior to the date of the
proposed payment.
SECTION 2.18. Judgments. The Company may provide pursuant to Section
----------
2.03 for Debt Securities of any series that (a) the obligation, if any, of the
Company to pay the principal of, and premium, if any, and interest on, the Debt
Securities of any series in a Foreign Currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 2.03 is of the essence and
agrees that, to the fullest extent possible under applicable law, judgments in
respect of Debt Securities of such series shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of, and premium, if any, and interest on, such Debt
Securities shall, notwithstanding any payment in any other Currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of the
amount in the Designated Currency that the Holder receiving such payment may, in
accordance with normal banking procedures, purchase with the sum paid in such
other Currency (after any premium and cost of exchange) on the business day in
the country of issue of the Designated Currency or in the international
41
banking community (in the case of a composite currency) immediately following
the day on which such Holder receives such payment; (c) if the amount in the
Designated Currency that may be so purchased for any reason falls short of the
amount originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
ARTICLE III
Redemption of Debt Securities
-----------------------------
SECTION 3.01. Applicability of Article. The provisions of this
-------------------------
Article shall be applicable to the Debt Securities of any series which are
redeemable before their Stated Maturity except as otherwise specified as
contemplated by Section 2.03 for Debt Securities of such series.
SECTION 3.02. Tax Redemption; Special Tax Redemption. (a) Unless
---------------------------------------
otherwise specified pursuant to Section 2.03, Bearer Securities of any series
may be redeemed at the option of the Company in whole, but not in part, at any
time, on giving not less than 30 or more than 60 days' notice in accordance with
Section 3.03 (which notice shall be irrevocable), at the redemption price
thereof (calculated without premium), if the Company has or will become
obligated to pay additional interest on such Bearer Securities pursuant to
Section 4.06 as a result of any change in, or amendment to, the laws (or any
regulations or rulings promulgated thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or any change in
the application or official interpretation of such laws, regulations or rulings,
which change or amendment becomes effective on or after the date on which any
Person (including any Person acting as underwriter, broker or dealer) agrees to
purchase any of such Bearer Securities pursuant to their original issuance, and
such obligation cannot be avoided by the Company taking reasonable measures
available to it; provided, however, that no such notice of redemption shall be
-------- -------
given earlier than 90 days prior to the earliest date on which the Company would
be obligated to pay such additional interest were a payment in respect of the
Bearer Securities of that series then due. Prior to the publication of any
notice of redemption pursuant to this Section 3.02(a), the Company shall deliver
to the Trustee (i) an Officers' Certificate
42
stating that the Company is entitled to effect such redemption and setting forth
a statement of facts showing that the conditions precedent to the right of the
Company so to redeem have occurred and (ii) an Opinion of Counsel to the effect
that the Company has or will become obligated to pay such additional interest as
a result of such change or amendment.
(b) Unless otherwise specified pursuant to Section 2.03, if the
Company shall determine that any payment made outside the United States by the
Company or any of its paying agents in respect of any Bearer Security or Coupon
would, under any present or future laws or regulations of the United States, be
subject to any certification, documentation, information or other reporting
requirement of any kind, the effect of which requirement is the disclosure to
the Company, any paying agent or any governmental authority of the nationality,
residence or identity of a beneficial owner of such Bearer Security or Coupon
that is a United States Alien (other than such a requirement (i) that would not
be applicable to a payment made by the Company or any one of its paying agents
(A) directly to the beneficial owner or (B) to a custodian, nominee or other
agent of the beneficial owner, or (ii) that can be satisfied by such custodian,
nominee or other agent certifying to the effect that the beneficial owner is a
United States Alien; provided, however, that, in any case referred to in clause
-------- -------
(i)(B) or (ii), payment by the custodian, nominee or agent to the beneficial
owner is not otherwise subject to any such requirement), then the Company shall
elect either (x) to redeem such Bearer Security or Coupon in whole, but not in
part, at the redemption price thereof (calculated without premium) or (y) if the
conditions of the next succeeding paragraph are satisfied, to pay the additional
interest specified in such paragraph. The Company shall make such determination
as soon as practicable and publish prompt notice thereof (the "Determination
Notice"), stating the effective date of such certification, documentation,
information or other reporting requirement, whether the Company elects to redeem
the Bearer Security or Coupon or to pay the additional interest specified in the
next succeeding paragraph and (if applicable) the last date by which the
redemption of the Bearer Security or Coupon must take place, as provided in the
next succeeding sentence. If any Bearer Security or Coupon is to be redeemed
pursuant to this paragraph, the redemption shall take place on such date, not
later than one year after the publication of the Determination Notice, as the
Company shall specify by notice given to the Trustee at least 60 days before the
redemption date. Notice of such redemption shall be given to the Holders of the
Bearer
43
Security or Coupon not more than 60 days or less than 30 days prior to
the redemption date. Notwithstanding the foregoing, the Company shall not so
redeem the Bearer Security or Coupon if the Company shall subsequently
determine, not less than 30 days prior to the redemption date, that subsequent
payments on the Bearer Security or Coupon would not be subject to any such
certification, documentation, information or other reporting requirement, in
which case the Company shall publish prompt notice of such subsequent
determination, and any earlier redemption notice given pursuant to this
paragraph shall be revoked and of no further effect. Prior to the publication
of any Determination Notice pursuant to this paragraph, the Company shall
deliver to the Trustee (i) an Officers' Certificate stating that the Company is
entitled to make such determination and setting forth a statement of facts
showing that the conditions precedent to the obligation of the Company to redeem
the Bearer Security or Coupon or to pay the additional interest specified in the
next succeeding paragraph have occurred and (ii) an Opinion of Counsel to the
effect that such conditions have occurred.
If and so long as the certification, documentation, information or
other reporting requirement referred to in the preceding paragraph would be
fully satisfied by payment of a backup withholding tax or similar charge, the
Company may elect to pay as additional interest such amounts as may be necessary
so that every net payment made outside the United States following the effective
date of such requirement by the Company or any of its paying agents in respect
of any Bearer Security or Coupon of which the beneficial owner is a United
States Alien (but without any requirement that the nationality, residence or
identity of such beneficial owner be disclosed to the Company, any paying agent
or any governmental authority), after deduction or withholding for or on account
of such backup withholding tax or similar charge that (i) would not be
applicable in the circumstances referred to in the parenthetical clause of the
first sentence of the preceding paragraph or (ii) is imposed as a result of
presentation of any such Bearer Security or Coupon for payment more than 15 days
after the date on which such payment became due and payable or on which payment
thereof was duly provided for, whichever occurred later), will not be less than
the amount provided in any such Bearer Security or Coupon to be then due and
payable. If the Company elects to pay additional interest pursuant to this
paragraph, the Company shall have the right to redeem the Bearer Security or
Coupon at any time in whole, but not in part, at the redemption price thereof
(calculated without premium), subject to the provisions of the last three
sentences of the immediately preceding
44
paragraph. If the Company elects to pay additional interest pursuant to this
paragraph and the condition specified in the first sentence of this paragraph
should no longer be satisfied, then the Company shall redeem the Bearer Security
or Coupon in whole, but not in part, at the redemption price thereof (calculated
without premium), subject to the provisions of the last three sentences of the
immediately preceding paragraph. Any redemption payments made by the Company
pursuant to the two immediately preceding sentences shall be subject to the
continuing obligation of the Company to pay additional interest pursuant to this
paragraph. If the Company elects to, or is required to, redeem the Bearer
Security or Coupon pursuant to this paragraph, it shall publish prompt notice
thereof. If the Bearer Security or Coupon is to be redeemed pursuant to this
paragraph, the redemption shall take place on such date, not later than one year
after publication of the notice of redemption, as the Company shall specify by
notice to the Trustee at least 60 days prior to the redemption date.
SECTION 3.03. Notice of Redemption; Selection of Debt Securities. In
---------------------------------------------------
case the Company shall desire to exercise the right to redeem all or, as the
case may be, any part of the Debt Securities of any series in accordance with
their terms, a resolution of the Board of Directors of the Company or a
supplemental Indenture, the Company shall fix a date for redemption and shall
give notice of such redemption at least 30 and not more than 60 days prior to
the date fixed for redemption to the Holders of Debt Securities of such series
so to be redeemed as a whole or in part, in the manner provided in Section
13.03. The notice if given in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice. In any case, failure to give such notice or any defect in the notice to
the Holder of any Debt 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 Debt Security of such series.
Each such notice of redemption shall specify the date fixed for
redemption, the redemption price at which Debt 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 Debt Securities, that any interest accrued to
the date fixed for redemption will be paid as specified in said notice, that the
redemption is for a sinking fund payment (if applicable), that, unless otherwise
specified in such notice, Coupon Securities of any series, if any, surrendered
for redemption must be accompanied by all Coupons maturing subsequent to the
date fixed for redemption, failing which the amount of any such
45
missing Coupon or Coupons will be deducted from the redemption price, if the
Bearer Securities of any series are to be redeemed and any Registered Securities
of such series are not to be redeemed, and if such Bearer Securities may be
exchanged for Registered Securities not subject to redemption on the applicable
redemption date pursuant to Section 2.15(c) or otherwise, the last date on which
such exchanges may be made, that, if the Company defaults in making such
redemption payment or if the Debt Securities of that series are subordinated
pursuant to the terms of Article XII, the paying agent is prohibited from making
such payment pursuant to the terms of this Indenture, that on and after said
date any interest thereon or on the portions thereof to be redeemed will cease
to accrue, that in the case of Original Issue Discount Securities original issue
discount accrued after the date fixed for redemption will cease to accrue, the
terms of the Debt Securities of that series pursuant to which the Debt
Securities of that series are being redeemed and that no representation is made
as to the correctness or accuracy of the CUSIP number, if any, listed in such
notice or printed on the Debt Securities of that series. If less than all the
Debt Securities of a series are to be redeemed, the notice of redemption shall
specify the CUSIP numbers of the Debt Securities of that series to be redeemed.
In case any Debt 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 Debt Security, a new Debt Security or Debt Securities of that
series in principal amount equal to the unredeemed portion thereof, and in the
case of a Bearer Security with appropriate Coupons, if any, will be issued.
At least 60 days before the redemption date, unless the Trustee
consents to a shorter period, the Company shall give notice to the Trustee of
the redemption date, the principal amount of Debt Securities to be redeemed and
the series and terms of the Debt Securities pursuant to which such redemption
will occur. Such notice shall be accompanied by an Officers' Certificate and an
opinion of Counsel from the Company to the effect that such redemption will
comply with the conditions herein. If fewer than all the Debt Securities of a
series are to be redeemed, the record date relating to such redemption shall be
selected by the Company and given to the Trustee, which record date shall be not
less than 15 days after the date of notice to the Trustee.
On or prior to the redemption date for any Registered Securities, the
Company shall deposit with the
46
Trustee or with a paying agent (or, if the Company is acting as its own paying
agent, segregate and hold in trust) an amount of money in the Currency in which
such Debt Securities are denominated (except as provided pursuant to Section
2.03) sufficient to pay the redemption price of such Registered Securities or
any portions thereof that are to be redeemed on that date. In the case of any
redemption pertaining to Bearer Securities or Coupon Securities, the Company
shall, no later than the business day prior to such redemption date, deposit
with the Trustee or with a paying agent (other than the Company) an amount of
money in the Currency in which such Debt Securities are denominated (except as
provided pursuant to Section 2.03) sufficient to pay the redemption price of
such Bearer or Coupon Securities or any portion thereof that are to be redeemed
on the redemption date.
If less than all the Debt Securities of like tenor and terms of a
series are to be redeemed (other than pursuant to mandatory sinking fund
redemptions) the Trustee shall select, in such manner as in its sole discretion
it shall deem appropriate and fair, the Debt Securities of that series or
portions thereof (in multiples of $1,000) to be redeemed. In any case where
more than one Registered Security of such series is registered in the same name,
the Trustee in its discretion may treat the aggregate principal amount so
registered as if it were represented by one Registered Security of such series.
The Trustee shall promptly notify the Company in writing of the Debt Securities
selected for redemption and, in the case of any Debt Securities selected for
partial redemption, the principal amount thereof to be redeemed. If any Debt
Security called for redemption shall not be so paid upon surrender thereof on
such redemption date, the principal, premium, if any, and interest shall bear
interest until paid from the redemption date at the rate borne by the Debt
Securities of that series. If less than all the Debt Securities of unlike tenor
and terms of a series are to be redeemed, the particular Debt Securities to be
redeemed shall be selected by the Company. Provisions of this Indenture that
apply to Debt Securities called for redemption also apply to portions of Debt
Securities called for redemption.
SECTION 3.04. Payment of Debt Securities Called for Redemption. If
-------------------------------------------------
notice of redemption has been given as provided in Section 3.03, the Debt
Securities or portions of Debt 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 of Payment stated in such notice at the applicable redemption
price, together with any
47
interest accrued to the date fixed for redemption, and on and after said date
(unless the Company shall default in the payment of such Debt Securities at the
applicable redemption price, together with any interest accrued to said date)
any interest on the Debt Securities or portions of Debt Securities of any series
so called for redemption shall cease to accrue, any original issue discount in
the case of Original Issue Discount Securities shall cease to accrue and any
Coupons for such interest appertaining to any Coupon Securities to be redeemed,
except to the extent described below, shall be void. On presentation and
surrender of such Debt Securities at the Place or Places of Payment in said
notice specified, the said Debt Securities or the specified portions thereof
shall be paid and redeemed by the Company at the applicable redemption price,
together with any interest accrued thereon to the date fixed for redemption.
If any Coupon Security surrendered for redemption shall not be
accompanied by all Coupons appertaining thereto maturing on or after the
applicable redemption date, the redemption price for such Coupon Security may be
reduced by an amount equal to the face amount of all such missing Coupons. If
thereafter the Holder of such Coupon shall surrender to any paying agent outside
the United States any such missing Coupon in respect of which a deduction shall
have been made from the redemption price, such Holder shall be entitled to
receive the amount so deducted. The surrender of such missing Coupon or Coupons
may be waived by the Company and the Trustee, if there be furnished to them such
security or indemnity as they may require to save each of them and any paying
agent harmless.
Any Debt Security that is to be redeemed only in part shall be
surrendered at the corporate trust office or such other office or agency of the
Company as is specified pursuant to Section 2.03 (in the case of Registered
Securities) and at the principal London office of the Trustee or such other
office or agency of the Company outside the United States as is specified
pursuant to Section 2.03 (in the case of Bearer Securities) with, if the
Company, the Registrar or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company, the
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing, and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Debt Security without service
charge, a new Debt Security or Debt Securities of the same series, of like tenor
and form, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the
48
Debt Security so surrendered, and, in the case of a Coupon Security, with
appropriate Coupons attached; except that if a Global Security is so
surrendered, the Company shall execute, and the Trustee shall authenticate and
deliver to the Depositary for such Global Security, without service charge, a
new Global Security in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Global Security so surrendered. In
the case of a Debt Security providing appropriate space for such notation, at
the option of the Holder thereof, the Trustee, in lieu of delivering a new Debt
Security or Debt Securities as aforesaid, may make a notation on such Debt
Security of the payment of the redeemed portion thereof.
SECTION 3.05. Mandatory and Optional Sinking Funds. The minimum
-------------------------------------
amount of any sinking fund payment provided for by the terms of Debt Securities
of any series, resolution of the Board of Directors or a supplemental Indenture
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 Debt Securities of
any series, resolution of the Board of Directors or a supplemental Indenture is
herein referred to as an "optional sinking fund payment."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Debt Securities of a series in cash, the Company may
at its option (a) deliver to the Trustee Debt Securities of that series
(together with the unmatured Coupons, if any, appertaining thereto) theretofore
purchased or otherwise acquired by the Company or (b) receive credit for the
principal amount of Debt Securities of that series which have been redeemed
either at the election of the Company pursuant to the terms of such Debt
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Debt Securities, resolution or
supplemental Indenture; provided, however, that such Debt Securities have not
-------- -------
been previously so credited. Such Debt Securities shall be received and
credited for such purpose by the Trustee at the redemption price specified in
such Debt Securities, resolution or supplemental Indenture for redemption
through operation of the sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
SECTION 3.06. Redemption of Debt Securities for Sinking Fund. Not
-----------------------------------------------
less than 60 days prior to each sinking fund payment date for any series of Debt
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that
49
series, any resolution or supplemental Indenture, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency in which the Debt
Securities of such series are denominated (except as provided pursuant to
Section 2.03) and the portion thereof, if any, which is to be satisfied by
delivering and crediting Debt Securities of that series pursuant to this Section
3.06 (which Debt Securities, if not previously redeemed, will accompany such
certificate) and whether the Company intends to exercise its right to make any
permitted optional sinking fund payment with respect 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. Failure of the Company to deliver such certificate (or to
deliver the Debt Securities and Coupons, if any, specified in this paragraph)
shall not constitute a Default, but such failure shall require that 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 Debt Securities subject to a mandatory sinking fund
payment without the option to deliver or credit Debt Securities as provided in
this Section 3.06 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 shall equal or exceed $100,000 (or a lesser sum if the Company shall so
request) with respect to the Debt Securities of any particular series shall be
applied by the Trustee 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
sinking fund payment date following the date of such payment) to the redemption
of such Debt Securities at the Redemption Price specified in such Debt
Securities, resolution or supplemental Indenture for operation of the sinking
fund together with any accrued interest to the date fixed for redemption. Any
sinking fund moneys not so applied or allocated by the Trustee to the redemption
of Debt Securities shall be added to the next cash sinking fund payment received
by the Trustee for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section 3.06. Any and all sinking
fund moneys with respect to the Debt Securities of any particular series held by
the Trustee on the last sinking fund payment date with respect to Debt
Securities of
50
such series and not held for the payment or redemption of particular Debt
Securities shall be applied by the Trustee, together with other moneys, if
necessary, to be deposited sufficient for the purpose, to the payment of the
principal of the Debt Securities of that series at its Stated Maturity.
The Trustee shall select the Debt Securities to be redeemed upon such
sinking fund payment date in the manner specified in the last paragraph of
Section 3.03 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 3.03 except that the notice of
redemption shall also state that the Debt Securities are being redeemed by
operation of the sinking fund. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Section 3.04.
At least one business day before each sinking fund payment date, the
Company shall pay to the Trustee (or, if the Company is acting as its own paying
agent, the Company shall segregate and hold in trust) in cash a sum in the
Currency in which the Debt Securities of such series are denominated (except as
provided pursuant to Section 2.03) equal to any interest accrued to the date
fixed for redemption of Debt Securities or portions thereof to be redeemed on
such sinking fund payment date pursuant to this Section 3.06.
The Trustee shall not redeem any Debt Securities of a series with
sinking fund moneys or mail any notice of redemption of such Debt Securities by
operation of the sinking fund for such series during the continuance of a
Default in payment of interest on such Debt Securities or of any Event of
Default (other than an Event of Default occurring as a consequence of this
paragraph) with respect to such Debt Securities, except that if the notice of
redemption of any such Debt Securities shall theretofore have been mailed in
accordance with the provisions hereof, the Trustee shall redeem such Debt
Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article III.
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 Debt Securities;
provided, however, that in case such Event of Default or Default shall have been
-------- -------
cured or waived as provided herein, such moneys shall thereafter be applied on
the next sinking fund payment
51
date for such Debt Securities on which such moneys may be applied pursuant to
the provisions of this Section 3.06.
ARTICLE IV
Particular Covenants of the Company
-----------------------------------
SECTION 4.01. Payment of Principal of, and Premium, If Any, and
-------------------------------------------------
Interest on, Debt Securities. The Company, for the benefit of each series of
-----------------------------
Debt Securities, will duly and punctually pay or cause to be paid the principal
of, and premium, if any, and interest on, each of the Debt Securities and pay
any Coupons at the place, at the respective times and in the manner provided
herein, in the Debt Securities and in the Coupons. Each installment of interest
on the Debt Securities may at the Company's option be paid by mailing checks for
such interest payable to the Person entitled thereto pursuant to Section 2.07(a)
to the address of such Person as it appears on the Debt Security Register. Any
interest due on Coupon Securities on or before the Stated Maturity of the
related Debt Security, other than additional interest, if any, payable as
provided in Section 4.06 in respect of principal of, or premium, if any, on such
a Debt Security, shall be payable only upon presentation and surrender of the
several Coupons for such interest installments as are evidenced thereby as they
severally mature.
Principal, premium and interest of Debt Securities of any series shall
be considered paid on the date due if on such date the Trustee or any paying
agent holds in accordance with this Indenture money sufficient to pay in the
Currency in which the Debt Securities of such series are denominated (except as
provided pursuant to Section 2.03) all principal, premium and interest then due
and, in the case of Debt Securities subordinated pursuant to the terms of
Article XII, the Trustee or such paying agent, as the case may be, is not
prohibited from paying such money to the Holders on that date pursuant to the
terms of this Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Debt Securities and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. Maintenance of Offices or Agencies for Registration of
------------------------------------------------------
Transfer, Exchange and Payment of Debt Securities. The Company will maintain in
--------------------------------------------------
each Place of Payment for any series of Debt Securities and Coupons, if
52
any, an office or agency where Debt Securities and Coupons of such series (but,
except as otherwise provided in Section 2.12, unless such Place of Payment is
located outside the United States, not Bearer Securities or Coupons) may be
presented or surrendered for payment, where Debt Securities of such series may
be surrendered for transfer or exchange and where notices and demands to or upon
the Company in respect of the Debt Securities and Coupons of such series and
this Indenture may be served. So long as any Bearer Securities of any series
remain outstanding, the Company will maintain for such purposes one or more
offices or agencies outside the United States in such city or cities specified
pursuant to Section 2.03 and, if any Bearer Securities are listed on a
securities exchange that requires an office or agency for the payment of
principal of, and premium, if any, or interest on, such Bearer Securities in a
location other than the location of an office or agency specified pursuant to
Section 2.03, the Company will maintain for such purposes an office or agency in
such location so long as any Bearer Securities are listed on such securities
exchange and such exchange so requires. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the corporate trust office of the Trustee (in the case of Registered
Securities) and at the principal London office of the Trustee (in the case of
Bearer Securities), and the Company hereby appoints the Trustee as its agent to
receive all presentations, surrenders, notices and demands.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designation; provided, however, that no such designation or rescission shall in
-------- -------
any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee.
------------------------------------------------------
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 Trustee,
53
so that there shall at all times be a Trustee hereunder with respect to each
series of Debt Securities.
SECTION 4.04. Duties of Paying Agents, etc. (a) The Company shall
-----------------------------
cause each paying agent, if any, other than the Trustee, 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,
(i) that it will hold all sums held by it as such agent for the
payment of the principal of, and premium, if any, or interest on, the Debt
Securities of any series and the payment of any related Coupons (whether
such sums have been paid to it by the Company or by any other obligor on
the Debt Securities or Coupons of such series) in trust for the benefit of
the Holders of the Debt Securities and Coupons of such series;
(ii) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Debt Securities or Coupons of such
series) to make any payment of the principal of, and premium, if any, or
interest on, the Debt Securities of such series or any payment on any
related Coupons when the same shall be due and payable; and
(iii) that it will at any time during the continuance of an Event of
Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held by it as such agent.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of, and premium, if any, or interest on,
the Debt Securities and Coupons, if any, of any series, set aside, segregate and
hold in trust for the benefit of the Holders of the Debt Securities and Coupons
of such series a sum sufficient to pay such principal, premium, if any, or
interest so becoming due. The Company will promptly notify the Trustee of any
failure by the Company to take such action or the failure by any other obligor
on such Debt Securities or Coupons to make any payment of the principal of, and
premium, if any, or interest on, such Debt Securities or Coupons when the same
shall be 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 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, as required by
this Section 4.04, such sums to be
54
held by the Trustee upon the same trusts as those upon which such sums were held
by the Company or such paying agent.
(d) Whenever the Company shall have one or more paying agents with
respect to any series of Debt Securities and Coupons, it will, prior to each due
date of the principal of, and premium, if any, or interest on, any Debt
Securities of such series, deposit with any such paying agent a sum sufficient
to pay the principal, premium or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled thereto, and (unless any such
paying agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
(e) 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 the provisions of Section 11.05.
SECTION 4.05. Statement by officers as to Default. The Company will
------------------------------------
deliver to the Trustee, on or before a date not more than four months after the
end of each fiscal year of the Company (currently on a calendar year basis)
ending after the date hereof, an Officers' Certificate stating, as to each
officer signing such certificate, that (i) in the course of his performance of
his duties as an officer of the Company he would normally have knowledge of any
Default, (ii) whether or not to the best of his knowledge any Default occurred
during such year and (iii) if to the best of his knowledge the Company is in
Default, specifying all such Defaults and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with
Section 314(a)(4) of the Trust Indenture Act.
SECTION 4.06. Payment of Additional Interest. Unless otherwise
-------------------------------
provided pursuant to Section 2.03, the provisions of this Section 4.06 shall be
applicable to Bearer Securities of any series.
The Company will, subject to the exceptions and limitations set forth
below, pay as additional interest to the Holder of any Bearer Security or Coupon
that is a United States Alien such amounts as may be necessary so that every net
payment on such Bearer Security or Coupon, after deduction or withholding for or
on account of any present or future tax, assessment or other governmental charge
imposed upon or as a result of such payment by the United States (or any
political subdivision or taxing authority thereof or therein), will not be less
than the amount provided in such
55
Bearer Security or Coupon to be then due and payable. However, the Company will
not be required to make any such payment of additional interest for or on
account of:
(a) any tax, assessment or other governmental charge that would not
have been imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settlor or
beneficiary of, or a Person holding a power over, such Holder, if such
Holder is an estate or a trust, or a member or shareholder of such Holder,
if such Holder is a partnership or corporation) and the United States,
including such Holder (or such fiduciary, settlor, beneficiary, Person
holding a power, member or shareholder) being or having been a citizen or
resident thereof or being or having been engaged in trade or business or
present therein or having or having had a permanent establishment therein
or (ii) such Holder's past or present status for United States Federal
income tax purposes as a personal holding company, foreign personal holding
company or private foundation or other tax-exempt organization with respect
to the United States or as a corporation that accumulates earnings to avoid
United States Federal income tax;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge that would not
have been imposed but for the presentation by the Holder of a Bearer
Security or Coupon for payment more than 15 days after the date on which
such payment became due and payable or on which payment thereof was duly
provided for, whichever occurs later;
(d) any tax, assessment or other governmental charge that is payable
otherwise than by deduction or withholding from a payment on a Bearer
Security or Coupon;
(e) any tax, assessment or other governmental charge that would not
have been imposed but for a failure to comply with applicable
certification, documentation, information or other reporting requirement
concerning the nationality, residence, identity or connection with the
United States of the Holder or beneficial owner of a Bearer Security or
Coupon if, without regard to any tax treaty, such compliance is required by
statute or regulation of the
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ as a precondition to relief or exemption from such tax,
assessment or other governmental charge; or
(f) any tax, assessment or other governmental charge imposed on a
Holder that actually or constructively owns ten percent or more of the
combined voting power of all classes of stock of the Company or that is a
controlled foreign corporation related to the Company through stock
ownership;
nor shall additional interest be paid with respect to a payment on a Bearer
Security or Coupon to a Holder that is a fiduciary or partnership or other than
the sole beneficial owner of such payment to the extent a beneficiary or settlor
with respect to such fiduciary or a member of such partnership or a beneficial
owner would not have been entitled to the additional interest had such
beneficiary, settlor, member or beneficial owner been the Holder of such Bearer
Security or Coupon.
Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of, or premium, if any, or interest on, any Debt
Security or payment with respect to any Coupon of any series, such mention shall
be deemed to include mention of the payment of additional interest provided for
in the terms of such Debt Securities and this Section 4.06 to the extent that,
in such context, additional interest is, was or would be payable in respect
thereof pursuant to the provisions of this Section 4.06 and express mention of
the payment of additional interest (if applicable) in any provisions hereof
shall not be construed as excluding additional interest in those provisions
hereof where such express mention is not made.
If the payment of additional interest becomes required in respect of
the Debt Securities or Coupons of a series, at least ten days prior to the first
interest payment date with respect to which such additional interest will be
payable (or if the Debt Securities of that series will not bear interest prior
to its Stated Maturity, the first day on which a payment of principal, and
premium, if any, is made and on which such additional interest will be payable),
and at least ten days prior to each date of payment of principal, and premium,
if any, or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and each paying agent with an Officers' Certificate that shall specify
by country the amount, if any, required to be withheld on such payments to
Holders of Debt Securities or Coupons that are United States
57
Aliens, and the Company will pay to the Trustee or such paying agent the
additional interest, if any, required by the terms of such Debt Securities and
this Section 4.06. The Company covenants to indemnify the Trustee and any paying
agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section 4.06.
SECTION 4.07. Further Instruments and Acts. The Company will, upon
-----------------------------
request of the Trustee, execute and deliver such further instruments and do such
further acts as may reasonably be necessary or proper to carry out more
effectually the purposes of this Indenture.
SECTION 4.08. Existence. Subject to Article X, the Company will do
----------
or cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises; provided,
--------
however, that the Company shall not be required to preserve any such right or
-------
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 4.09. Maintenance of Properties. The Company will cause all
--------------------------
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section shall prevent the
-------- -------
Company from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 4.10. Payment of Taxes and Other Claims. The Company will pay
----------------------------------
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any
58
Subsidiary, and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay or
-------- -------
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
SECTION 4.11 Limitation on Secured Debt. The Company will not, and
---------------------------
will not permit any Restricted Subsidiary to, become liable for any indebtedness
for borrowed money secured by a mortgage or lien on a Principal Property or on
any shares of stock or indebtedness of any Restricted Subsidiary ("Secured
Debt") or secure the same without making effective provision for securing the
payment of the principal of and interest on the Debt Securities (and, if the
company so elects, any indebtedness ranking equally with the Debt Securities)
equally and ratably with or prior to such secured indebtedness. This covenant
will not apply to debt secured by (a) mortgages or liens on property, capital
stock or indebtedness of any corporation existing at the time it becomes a
subsidiary, (b) mortgages existing on property at the time of acquisition,
purchase money mortgages and mortgages to secure indebtedness incurred within
180 days after the time of acquisition thereof to finance the purchase price,
(c) mortgages or liens on unimproved property to finance the cost of
improvements to such property, (d) mortgages or liens securing indebtedness owed
by a Subsidiary to the Company or a wholly owned Restricted Subsidiary, (e)
certain mortgages in favor of governmental entities including mortgages in
connection with industrial revenue financing or (f) extensions, renewals or
replacements of any of the foregoing. Notwithstanding this covenant, the
Company and its Restricted Subsidiaries may incur or guarantee any Secured Debt,
provided that after giving effect thereto the aggregate amount of such debt then
outstanding (not including Secured Debt permitted under the foregoing
exceptions) and the aggregate "value" of Sale and Leaseback Transactions other
than Sale and Leaseback Transactions permitted under clauses (a) through (d) and
(f) in Section 4.12, at such time does not exceed 10% of Consolidated Net
Tangible Assets.
SECTION 4.12 Limitation on Sales and Leasebacks. Sales and leasebacks
-----------------------------------
of a Principal Property by the Company or a Restricted Subsidiary (except those
for a temporary period of not more than three years and those from the Company
or a wholly owned Restricted Subsidiary) will be prohibited unless (a) the
transaction is entered into to
59
finance the cost of acquiring such property or within 180 days after such
acquisition, (b) the transaction is entered into to finance the cost of
improvements to such unimproved property, (c) the transaction is one of certain
types in which the lessor is a governmental entity, (d) the transaction involves
the extension, renewal or replacement of the transactions referred to in clauses
(a) through (c) above, (e) the property involved is property that could be
mortgaged without equally and ratably securing the Debt Securities under the
last sentence of the preceding paragraph or (f) an amount equal to the proceeds
of sale or the fair value of the property sold (whichever is higher) is applied
to the retirement of funded debt of the Company.
ARTICLE V
Holders, Lists and Reports
--------------------------
by the Company and the Trustee
------------------------------
SECTION 5.01. Company to Furnish Trustee Information as to Names and
------------------------------------------------------
Addresses of Holders; Preservation of Information. The Company covenants and
--------------------------------------------------
agrees that it will furnish or cause to be furnished to the Trustee with respect
to the Registered Securities of each series:
(a) not more than 15 days after each record date with respect to the
payment of interest, if any, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Registered Holders as
of such record date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and contents as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that so long as the Trustee shall be the Registrar, such
-------- -------
lists shall not be required to be furnished.
The Company shall also be required to furnish to the Trustee at all
such times set forth above all information in the possession or control of the
Company or any of its paying agents other than the Trustee as to the names and
addresses of the Bearer Holders of all series; provided, however, that the
-------- -------
Company shall have no obligation to investigate any matter relating to any
Bearer Holders.
60
The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders (1)
contained in the most recent list furnished to it as provided in this Section
5.01 or (2) received by it in the capacity of paying agent or Registrar (if so
acting) hereunder.
The Trustee may destroy any list furnished to it as provided in this
Section 5.01 upon receipt of a new list so furnished.
SECTION 5.02. Communications to Holders. Holders may communicate
--------------------------
pursuant to Section 312(b) of the Trust Indenture Act with other Holders with
respect to their rights under this Indenture or the Debt Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
Section 312(c) of the Trust Indenture Act.
SECTION 5.03. Reports by Company. (a) The Company covenants and
-------------------
agrees, and any obligor hereunder shall covenant and agree, to file with the
Trustee and the Holders (in the manner and to the extent provided in Section
5.04), within 15 days after the Company or such obligor, as the case may be, 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 (or
copies of such portions of any of the foregoing as said Commission may from time
to time by rules and regulations prescribe) which the Company or such obligor,
as the case may be, may be required to file with said Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company or such
obligor, as the case may be, is not required to file information, documents or
reports pursuant to either of such Sections, then to file with the Trustee, the
Holders (in the manner and to the extent provided in Section 5.04) and said
Commission, in accordance with rules and regulations prescribed from time to
time by said Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations.
(b) The Company covenants and agrees, and any obligor hereunder shall
covenant and agree, to file with the Trustee, the Holders (in the manner and to
the extent provided in Section 5.04) and the Securities and Exchange Commission,
in accordance with the rules and regulations prescribed from time to time by
said Commission, such
61
additional information, documents, and reports with respect to compliance
by the Company or such obligor, as the case may be, with the conditions and
covenants provided for in this Indenture as may be required from time to time by
such rules and regulations.
SECTION 5.04. Reports by Trustee. As promptly as practicable after
-------------------
each beginning with the following the date of
this Indenture, and in any event prior to in each year, the
Trustee shall mail to each Holder a brief report dated as of that
complies with Section 313(a) of the Trust Indenture Act. The Trustee also shall
comply with Section 313(b) of the Trust Indenture Act.
Reports pursuant to this Section 5.04 shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of such
Holders appear in the Debt Security Register;
(2) to such Bearer Holders of any series as have, within two years
preceding such transmission, filed their names and addresses with the
Trustee for such series for that purpose; and
(3) except in the cases of reports under Section 313(b)(2) of the
Trust Indenture Act, to each Holder of a Debt Security of any series whose
name and address appear in the information preserved at the time by the
Trustee in accordance with Section 5.02.
A copy of each report at the time of its mailing to Holders shall be
filed with the Securities and Exchange Commission and each stock exchange (if
any) on which the Debt Securities of any series are listed. The Company agrees
to notify promptly the Trustee whenever the Debt Securities of any series become
listed on any stock exchange and of any delisting thereof.
SECTION 5.05. Record Dates for Action by Holders. If the Company
-----------------------------------
shall solicit from the holders of Debt Securities of any series any action
(including the making of any demand or request, the giving of any direction,
notice, consent or waiver or the taking of any other action), the Company may,
at its option, by resolution of the Board of Directors, fix in advance a record
date for the determination of Holders of Debt Securities entitled to take such
action, but the Company shall have no obligation to do so. Any such record date
shall be fixed at the Company's
62
discretion. If such a record date is fixed, such action may be sought or given
before or after the record date, but only the Holders of Debt Securities of
record at the close of business on such record date shall be deemed to be
Holders of Debt Securities for the purpose of determining whether Holders of the
requisite proportion of Debt Securities of such series Outstanding have
authorized or agreed or consented to such action, and for that purpose the Debt
Securities of such series Outstanding shall be computed as of such record date.
ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
-------------------------------------------------------
SECTION 6.01. Events of Default. If any one or more of the following
------------------
shall have occurred and be continuing with respect to Debt Securities of any
series (each of the following, an "Event of Default"):
(a) default in the payment of any installment of interest upon any
Debt Securities of that series or any payment with respect to the related
Coupons, if any, as and when the same shall become due and payable, whether
or not such payment shall be prohibited by Article XII, if applicable, 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 Debt Securities of that series as and when the same shall become due
and payable, whether at maturity, upon redemption, by declaration, upon
required repurchase or otherwise, whether or not such payment shall be
prohibited by Article XII, if applicable; or
(c) default in the payment of any sinking fund payment with respect to
any Debt Securities of that series as and when the same shall become due
and payable; or
(d) failure on the part of the Company to comply with Article X; or
(e) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the Debt
Securities of that series, in any resolution of the Board of Directors
authorizing the issuance of that series of Debt Securities, in this
Indenture with
63
respect to such series or in any supplemental Indenture with respect to
such series (other than a covenant a default in the performance of which is
elsewhere in this Section specifically dealt with), continuing for a period
of 60 days after the date on which written notice specifying such failure
and requiring the Company to remedy the same shall have been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Debt Securities of that series at the time
Outstanding; or
(f) Indebtedness of the Company or any Subsidiary of the Company is
not paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default, the total amount
of such Indebtedness unpaid or accelerated exceeds $20,000,000 or its
Dollar Equivalent at the time and such default remains uncured or such
acceleration is not rescinded for 10 days after the date on which written
notice specifying such failure and requiring the Company to remedy the same
shall have been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least
25% in aggregate principal amount of the Debt Securities of that series at
the time Outstanding; or
(g) the Company or any of its Significant Subsidiaries shall (i)
voluntarily commence any pro ceeding or file any petition seeking relief
under Title 11 of the United States Code or any other Federal or State
bankruptcy, insolvency or similar law, (ii) consent to the institution of,
or fail to controvert within the time and in the manner prescribed by law,
any such proceeding or the filing of any such petition, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator
or similar official for the Company or any such Significant Subsidiary or
for a substantial part of its property, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors, (vi) admit in
writing its inability or fail generally to pay its debts as they become
due, (vii) take corporate action for the purpose of effecting any of the
foregoing, or (viii) take any comparable action under any foreign laws
relating to insolvency; or
64
(h) the entry of an order or decree by a court having competent
jurisdiction in the premises for (i) relief in respect of the Company or
any of its Significant Subsidiaries or a substantial part of any of their
property under Title 11 of the United States Code or any other Federal or
State bankruptcy, insolvency or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator or similar official for the
Company or any such Significant Subsidiary or for a substantial part of any
of its property (except any decree or order appointing such official of
any Significant Subsidiary pursuant to a plan under which the assets and
operations of such Significant Subsidiary are transferred to or combined
with another Subsidiary or Subsidiaries of the Company or to the Company)
or (iii) the winding up or liquidation of the Company or any such
Significant Subsidiary (except any decree or order approving or ordering
the winding up or liquidation of the affairs of a Significant Subsidiary
pursuant to a plan under which the assets and operations of such
Significant Subsidiary are transferred to or combined with another
Subsidiary or Subsidiaries of the Company or to the Company); and such
order or decree shall continue unstayed and in effect for 60 consecutive
days; or any similar relief is granted under any foreign laws and the order
or decree stays in effect for 60 consecutive days; or
(i) any judgment or decree for the payment of money in excess of
$20,000,000 or its Dollar Equivalent at the time is entered against the
Company or any Subsidiary of the Company by a court or courts of competent
jurisdiction, which judgment is not covered by insurance, and is not
discharged and either (A) an enforcement proceeding has been commenced by
any creditor upon such judgment or decree or (B) there is a period of 60
days following the entry of such judgment or decree during which such
judgment or decree is not discharged, waived or the execution thereof
stayed and, in the case of (A) or (B), such default continues for 10 days
after the date on which written notice specifying such failure and
requiring the Company to remedy the same shall have been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Debt Securities of that series at the time
Outstanding; or
(j) any other Event of Default provided with respect to Debt
Securities of that series;
65
then and in each and every case that an Event of Default described in clause
(a), (b), (c), (d), (e), (f), (i) or (j) with respect to Debt Securities of that
series at the time Outstanding occurs and is continuing, unless the principal of
and interest on all the Debt Securities of that series shall have already become
due and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Debt Securities of that series then
Outstanding hereunder, by notice in writing to the Company (and to the Trustee
if given by Holders), may declare the principal of (or, if the Debt Securities
of that series are Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms of that series) and interest
on all the Debt Securities of that 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 Indenture or in the Debt Securities or Coupons
appertaining thereto of that series contained to the contrary notwithstanding.
If an Event of Default described in clause (g) or (h) occurs, then and in each
and every such case, unless the principal of and interest on all the Debt
Securities shall have become due and payable, the principal of (or, if any Debt
Securities are Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms thereto) and interest on all
the Debt Securities then Outstanding hereunder shall ipso facto become and be
---- -----
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders, anything in this Indenture or in the Debt Securities
contained to the contrary notwithstanding.
The Holders of a majority in principal amount of the Debt Securities
of a particular series by notice to the Trustee may rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or
decree already rendered and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of acceleration. Upon any such rescission, the parties hereto shall be
restored respectively to their several positions and rights hereunder, and all
rights, remedies and powers of the parties hereto shall continue as though no
such proceeding had been taken.
In case the Trustee or any Holder shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or such Holder, then and in
every such case the
66
parties hereto shall be restored respectively to their several positions and
rights hereunder, and all rights, remedies and powers of the parties hereto
shall continue as though no such proceeding had been taken.
The foregoing Events of Default shall constitute Events of Default
whatever the reason for any such Event of Default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which with the giving of notice and the lapse of time would become an
Event of Default under clause (c), (d), (e), (f), (i) or (j), its status and
what action the Company is taking or proposes to take with respect thereto.
SECTION 6.02. Collection of Indebtedness by Trustee, etc. If an
-------------------------------------------
Event of Default occurs and is continuing, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due
and unpaid or enforce the performance of any provision of the Debt Securities of
the affected series or this Indenture, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor upon the Debt Securities,
and the Coupons, if any, appertaining thereto, of such series (and collect in
the manner provided by law out of the property of the Company or any other
obligor upon the Debt Securities and Coupons of such series 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 upon the Debt Securities
and Coupons, if any, of any series under Title 11 of the United States Code or
any other Federal or State bankruptcy, insolvency or similar law, or in case a
receiver, trustee or other similar official shall have been appointed for its
property, or in case of any other similar judicial proceedings relative to the
Company or any other obligor upon the Debt Securities of any series, its
creditors or its property, the Trustee, irrespective of whether the principal of
Debt Securities and Coupons, if any, 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
67
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, premium, if any, and interest
(or, if the Debt Securities of such series are Original Issue Discount Debt
Securities, such portion of the principal amount as may be specified in the
terms of such series) owing and unpaid in respect of the Debt Securities and
Coupons of such series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for reasonable compensation to the Trustee, its agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities Incurred, and all
advances made, by the Trustee except as a result of its negligence or bad faith)
and of the Holders thereof allowed in any such judicial proceedings relative to
the Company, or any other obligor upon the Debt Securities and Coupons of such
series, its creditors or its property, and to collect and receive any moneys or
other property payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of such Holders and of the Trustee
on their behalf, and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of such Holders to make payments to
the Trustee, and, in the event that the Trustee shall consent to the making of
payments directly to such Holders, to pay to the Trustee such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other reasonable expenses and liabilities
Incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith.
All rights of action and of asserting claims under this Indenture, or
under any of the Debt Securities and the Coupons, if any, appertaining thereto,
of any series, may be enforced by the Trustee without the possession of any such
Debt Securities or Coupons, or the production thereof in any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment (except for any amounts payable to the Trustee pursuant
to Section 7.06) shall be for the ratable benefit of the Holders of all the Debt
Securities or Coupons in respect of which such action was taken.
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
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights,
68
either at law or in equity or in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or
in aid of the exercise of any power granted in this Indenture, or to enforce any
other legal or equitable right vested in the Trustee by this Indenture or by
law.
SECTION 6.03. Application of Moneys Collected by Trustee. Any moneys
-------------------------------------------
collected by the Trustee pursuant to Section 6.02 with respect to Debt
Securities and Coupons, if any, of any series shall be applied, after giving
effect to the provisions of Article XII, if applicable, in the order following,
at the date or dates fixed by the Trustee for the distribution of such moneys,
upon presentation of the several Debt Securities or Coupons of such series 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 money due the Trustee pursuant to
Section 7.06;
SECOND: In case the principal of the Outstanding Debt Securities in
respect of which such moneys have been collected shall not have become due,
to the payment of interest on the Debt Securities or Coupons of such series
in the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at the rate or Yield to
Maturity (in the case of Original Issue Discount Debt Securities) borne by
the Debt Securities or Coupons of such series, such payments to be made
ratably to the Persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Outstanding Debt Securities in
respect of which such moneys have been collected shall have become due, by
declaration or otherwise, to the payment of the whole amount then owing and
unpaid upon the Debt Securities or Coupons of such series for principal and
premium, if any, and interest, with interest on the overdue principal and
premium, if any, and (to the extent that such interest has been collected
by the Trustee) upon overdue installments of interest at the rate or Yield
to Maturity (in the case of Original Issue Discount Debt Securities) borne
by the Debt Securities or Coupons of such series; and, in case such
moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon the Debt Securities and Coupons of such
69
series, then to the payment of such principal and premium, if any, and
interest, without preference or priority of principal and premium, if any,
over interest, or of interest over principal and premium, if any, or of any
installment of interest over any other installment of interest, or of any
Debt Security or Coupon of such series over any Debt Security or Coupon of
such series, ratably to the aggregate of such principal and premium, if
any, and interest; and
FOURTH: The remainder, if any, shall be paid 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.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.03. At least 15 days before such record date,
the Company shall mail to each Holder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
SECTION 6.04. Limitation on Suits by Holders. No Holder of any Debt
-------------------------------
Security or Coupon of any series shall have any right by virtue or by availing
of any provision of this Indenture to institute any action or proceeding at law
or in equity or in bankruptcy or otherwise, upon or under or with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such Holder previously shall have given to the
Trustee written notice of an Event of Default with respect to Debt Securities of
that same series and of the continuance thereof and unless the Holders of not
less than 25% in aggregate principal amount of the Outstanding Debt Securities
of that series shall have made written request upon the Trustee to institute
such action or proceedings in respect of such Event of Default 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 failed to institute any
such action or proceedings and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 6.06; it being
understood and intended, and being expressly covenanted by the Holder of every
Debt Security or Coupon with every other Holder and the Trustee, that no one or
more Holders shall have any right in any manner whatever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of any Holders, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to
70
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all such Holders. For the
protection and enforcement of the provisions of this Section 6.04, each and
every Holder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Notwithstanding any other provision in this Indenture, however, the
right of any Holder of any Debt Security or Coupon to receive payment of the
principal of, and premium, if any, and (subject to Section 2.12) interest on,
such Debt Security or Coupon, on or after the respective due dates expressed in
such Debt Security, and 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.
SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise of
-----------------------------------------------------
Rights Not a Waiver of Default. All powers and remedies given by this Article
-------------------------------
VI to the Trustee or to the Holders 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, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder 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 VI or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders.
SECTION 6.06. Rights of Holders of Majority in Principal Amount of
----------------------------------------------------
Debt Securities to Direct Trustee and to Waive Default. The Holders of a
-------------------------------------------------------
majority in aggregate principal amount of the Debt 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 Debt
Securities of such series; provided, however, that such direction shall not be
-------- -------
otherwise than in accordance with law and the provisions of this Indenture, and
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
shall determine that the action so directed may not lawfully be taken, or if the
Trustee shall
71
by a responsible officer or officers determine that the action so
directed would involve it in personal liability or would be unjustly prejudicial
to Holders of Debt Securities of such series not taking part in such direction;
and provided, further, however, that nothing in this Indenture contained shall
-------- ------- -------
impair the right of the Trustee to take any action deemed proper by the Trustee
and which is not inconsistent with such direction by such Holders. Prior to the
acceleration of the maturity of the Debt Securities of any series, as provided
in Section 6.01, the Holders of a majority in aggregate principal amount of the
Debt Securities of that series at the time Outstanding may on behalf of the
Holders of all the Debt Securities and any related Coupons of that series waive
any past Default or Event of Default and its consequences for that series
specified in the terms thereof as contemplated by Section 2.03, except (i) a
Default in the payment of the principal of, and premium, if any, or interest on,
any of the Debt Securities or in the payment of any related Coupon and (ii) a
Default in respect of a provision that under Section 9.02 cannot be amended
without the consent of each Holder affected thereby. In case of any such
waiver, such Default shall cease to exist, any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture, and the Company, the Trustee and the Holders of the Debt 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 impair any right consequent thereon.
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but May
-------------------------------------------------------
Withhold Such Notice in Certain Circumstances. The Trustee shall, within 90
----------------------------------------------
days after the occurrence of a Default known to it with respect to a series of
Debt Securities or Coupons, if any, give to the Holders thereof, in the manner
provided in Section 13.03, notice of all Defaults with respect to such series
known to the Trustee, unless such Defaults shall have been cured or waived
before the giving of such notice; provided, however, that, except in the case of
-------- -------
Default in the payment of the principal of, or premium, if any, or interest on,
any of the Debt Securities or Coupons of such series or in the making of any
sinking fund payment with respect to the Debt Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a committee of directors or
responsible officers of the Trustee in good faith determine that the withholding
of such notice is in the interests of the Holders thereof.
72
SECTION 6.08. Requirement of an Undertaking To Pay Costs in Certain
-----------------------------------------------------
Suits under the Indenture or Against the Trustee. All parties to this Indenture
-------------------------------------------------
agree, and each Holder of any Debt Security or Coupon by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit in the manner and to the extent provided in the Trust Indenture
Act, 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 6.08 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than ten percent in principal
amount of the Outstanding Debt Securities of that series or to any suit
instituted by any Holder for the enforcement of the payment of the principal of,
or premium, if any, or interest on, any Debt Security or Coupon on or after the
due date for such payment expressed in such Debt Security or Coupon.
ARTICLE VII
Concerning the Trustee
----------------------
SECTION 7.01. Certain Duties and Responsibilities. The Trustee,
------------------------------------
prior to the occurrence of an Event of Default and after the curing or waiving
of all Events of Default which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture. In
case an Event of Default has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, 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 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) this subsection shall not be construed to limit the effect of the
first paragraph of this Section 7.01;
73
(b) prior to the occurrence of an Event of Default with respect to the
Debt Securities of a series and after the curing or waiving of all Events
of Default with respect to such series which may have occurred:
(1) the duties and obligations of the Trustee with respect to
Debt Securities and Coupons, if any, of any series shall be determined
solely by the express provisions of this Indenture, and the Trustee
shall not be liable except for the performance of such duties and
obligations with respect to such series as are specifically set forth
in this Indenture, and no implied covenants or obligations with
respect to such series shall be read into this 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 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 Indenture; but the Trustee
shall examine the evidence furnished to it pursuant to Section 5.03 to
determine whether or not such evidence conforms to the requirement of
this Indenture;
(c) the Trustee shall not be liable for an error of judgment made in
good faith by a responsible officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(d) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it with respect to Debt Securities of any series
in good faith in accordance with the direction of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Debt
Securities of that series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to Debt Securities of such series.
74
None of the provisions of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any Personal financial liability
in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 7.02. Certain Rights of Trustee. Except as otherwise
--------------------------
provided in 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,
bond, debenture, note 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 a Company Order (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a
copy thereof certified by the Secretary or an Assistant Secretary of the
Company;
(c) the Trustee may consult with counsel, and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders of Debt Securities or Coupons of any series
pursuant to the provisions of this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be Incurred therein or thereby;
75
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and reasonably believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default and after the
curing of all Events of Default which may have occurred, the Trustee shall
not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, approval or other paper or
document, unless requested in writing to do so by the Holders of a majority
in aggregate principal amount of the then Outstanding Debt Securities of a
series affected by such matter; provided, however, that if the payment
-------- -------
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be Incurred by it in the making of such investigation
is not, in the opinion of the Trustee, reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities as
a condition to so proceeding. The reasonable expense of every such
investigation shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand;
(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 by it with due
care hereunder; and
(h) if any property other than cash shall at any time be subject to a
Lien in favor of the Holders, the Trustee, if and to the extent authorized
by a receivership or bankruptcy court of competent jurisdiction or by the
supplemental instrument subjecting such property to such lien, shall be
entitled to make advances for the purpose of preserving such property or of
discharging tax Liens or other prior Liens or encumbrances thereon.
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in Debt
-------------------------------------------------------
Securities. The recitals contained herein, in the Debt Securities (except the
-----------
Trustee's certificate of authentication) and in any Coupons shall be taken as
the statements of the Company, and the Trustee
76
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Debt Securities or Coupons, if any, of any series, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Debt Securities and perform its obligations hereunder, and that
the statements made by it or to be made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company are true and accurate. The
Trustee shall not be accountable for the use or application by the Company of
any of the Debt Securities or of the proceeds thereof.
SECTION 7.04. Trustee, Paying Agent or Registrar May Own Debt
-----------------------------------------------
Securities. The Trustee or any paying agent or Registrar, in its individual or
-----------
any other capacity, may become the owner or pledgee of Debt Securities or
Coupons and subject to the provisions of the Trust Indenture Act relating to
conflicts of interest and preferential claims may otherwise deal with the
Company with the same rights it would have if it were not Trustee, paying agent
or Registrar.
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust.
-----------------------------------------------
Subject to the provisions of Section 11.05, all moneys received by the Trustee
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. The Trustee shall be under no
liability for interest on any moneys received by it hereunder. 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 to the Company upon a Company
Order.
SECTION 7.06. Compensation and Reimbursement. The Company covenants
-------------------------------
and agrees to pay in Dollars to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation for all services rendered by it
hereunder (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 herein, the Company will pay or reimburse in Dollars 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
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents, attorneys and counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advances as
may arise from its negligence or bad faith. The Company also covenants to
indemnify in
77
Dollars the Trustee for, and to hold it harmless against, any loss,
liability or expense Incurred without negligence, wilful misconduct or bad faith
on the part of the Trustee, arising out of or in connection with the acceptance
or administration of this trust or trusts hereunder, including the reasonable
costs and expenses of defending itself against any claim of liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligations of the Company under this Section 7.06 to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be secured by a Lien prior to that of the Debt
Securities and Coupons, if any, upon all property and funds held or collected by
the Trustee, as such, except funds held in trust for the payment of principal
of, and premium, if any, or interest on, particular Debt Securities and Coupons.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(g) or (h) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency, reorganization or other similar
law.
SECTION 7.07. Right of Trustee to Rely on an Officers' Certificate
----------------------------------------------------
Where No Other Evidence Specifically Prescribed. Except as otherwise provided
------------------------------------------------
in Section 7.01, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 7.08. Separate Trustee; Replacement of Trustee. The Company
-----------------------------------------
may, but need not, appoint a separate Trustee for any one or more series of Debt
Securities. The Trustee may resign with respect to one or more or all series of
Debt Securities at any time by giving notice to the Company. The Holders of a
majority in principal amount of the Debt Securities of a particular series may
remove the
78
Trustee for such series and only such series by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of
a majority in principal amount of the Debt Securities of a particular series and
such Holders do not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), the Company shall
promptly appoint a successor Trustee. No resignation or removal of the Trustee
and no appointment of a successor Trustee shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of this Section 7.08.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Debt Securities of each applicable series. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 60 days after the
retiring Trustee gives notice of resignation or is removed, the retiring Trustee
or the Holders of 25% in principal amount of the Debt Securities of any
applicable series may petition any court of competent jurisdiction for the
appointment of a successor Trustee for the Debt Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of Debt
Securities of any applicable series may petition any court of competent
jurisdiction for the removal
79
of the Trustee and the appointment of a successor Trustee for the Debt
Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.06 shall continue for
the benefit of the retiring Trustee.
In the case of the appointment hereunder of a separate or successor
trustee with respect to the Debt Securities of one or more series, the Company,
any retiring Trustee and each successor or separate Trustee with respect to the
Debt Securities of any applicable series shall execute and deliver an Indenture
supplemental hereto (1) which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of any retiring Trustee with respect to the Debt Securities of any series as to
which any such retiring Trustee is not retiring shall continue to be vested in
such retiring Trustee and (2) that shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental Indenture shall
constitute such Trustee's co-trustees of the same trust and that each such
separate, retiring or successor 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.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
----------------------------
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Debt Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Debt Securities so
authenticated; and in case at that time any of the Debt Securities shall not
have been authenticated, any successor to the Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Debt Securities
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or in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
------------------------------
all times satisfy the requirements of Section 310(a) of the Trust Indenture Act.
The Trustee shall have a combined capital and surplus of at least $50,000,000 as
set forth in its most recent published annual report of condition. No obligor
upon the Debt Securities or Coupons, if any, of a particular series or Person
directly or indirectly controlling, controlled by or under common control with
such obligor shall serve as Trustee upon the Debt Securities and Coupons of such
series. The Trustee shall comply with Section 310(b) of the Trust Indenture
Act; provided, however, that there shall be excluded from the operation of
-------- -------
Section 310(b)(1) of the Trust Indenture Act this Indenture or any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in Section 310(b)(1) of the Trust
Indenture Act are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
--------------------------------------------------
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act.
A Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
SECTION 7.12. Compliance with Tax Laws. The Trustee hereby agrees to
-------------------------
comply with all U.S. Federal income tax information reporting and withholding
requirements applicable to it with respect to payments of premium (if any) and
interest on the Debt Securities, whether acting as Trustee, Security Registrar,
paying agent or otherwise with respect to the Debt Securities.
ARTICLE VIII
Concerning the Holders
----------------------
SECTION 8.01. Evidence of Action by Holders. Whenever in this
-------------------------------
Indenture it is provided that the Holders of a specified percentage in aggregate
principal amount of the Debt Securities of any or all series may take action
(including the making of any demand or request, the giving of any direction,
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
81
joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Holders in Person or by agent or proxy
appointed in writing, (b) by the record of the Holders voting in favor thereof
at any meeting of Holders duly called and held in accordance with the provisions
of Section 5.02 or (c) by a combination of such instrument or instruments and
any such record of such a meeting of Holders.
SECTION 8.02. Proof of Execution of Instruments and of Holding of
---------------------------------------------------
Debt Securities. Subject to the provisions of Sections 7.01, 7.02 and 13.11,
----------------
proof of the execution of any instrument by a Holder 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 Registered Securities of any series shall be proved
by the Debt Security Register or by a certificate of the Registrar for such
series.
The ownership of Bearer Securities shall be proved by production of
such Bearer Securities or by a certificate executed by any bank or trust
company, which certificate shall be dated and shall state on the date thereof a
Bearer Security bearing a specified identifying number or other ▇▇▇▇ was
deposited with or exhibited to the Person executing such certificate by the
Person named in such certificate, or by any other proof of possession reasonably
satisfactory to the Trustee. The holding by the Person named in any such
certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Security shall be produced, (2) such Bearer Security shall be
produced by some other Person, (3) such Bearer Security shall have been
registered on the Debt Security Register, if, pursuant to Section 2.03, such
Bearer Security can be so registered, or (4) such Bearer Security shall have
been canceled or paid.
The Trustee may require such additional proof of any matter referred
to in this Section 8.02 as it shall deem necessary.
SECTION 8.03. Who May Be Deemed Owner of Debt Securities. Prior to
-------------------------------------------
due presentment for registration of transfer of any Registered Security, the
Company, the Trustee, any paying agent and any Registrar may deem and treat the
Person in whose name any Registered Security shall
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be registered upon the books of the Company as the absolute owner of such
Registered Security (whether or not such Registered Security shall be overdue
and notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and premium,
if any, and (subject to Section 2.03) interest on such Registered Security and
for all other purposes, and neither the Company nor the Trustee nor any paying
agent nor any Registrar shall be affected by any notice to the contrary; and all
such payments so made to any such 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 Registered
Security.
The Company, the Trustee and any paying agent may deem and treat the
Holder of any Bearer Security or Coupon as the absolute owner of such Bearer
Security or Coupon (whether or not such Debt Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and premium,
if any, and (subject to Section 2.03) interest on such Bearer Security or Coupon
and for all other purposes, and neither the Company nor the Trustee nor any
paying agent shall be affected by any notice to the contrary; and all such
payments so made to any such 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 Bearer Security or
Coupon.
None of the Company, the Trustee, any paying agent or the Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 8.04. Instruments Executed by Holders Bind Future Holders.
----------------------------------------------------
At any time prior to (but not after) the evidencing to the Trustee, as provided
in Section 8.01, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Debt Securities of any series specified in
this Indenture in connection with such action and subject to the following
paragraph, any Holder of a Debt Security which is shown by the evidence to be
included in the Debt Securities the Holders of which have consented to such
action may, by filing written notice with the Trustee at its corporate trust
office and upon proof of holding as provided in Section 8.02, revoke such action
so
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far as concerns such Debt Security. Except as aforesaid any such action
taken by the Holder of any Debt Security shall be conclusive and binding upon
such Holder and upon all future Holders and owners of such Debt Security and all
past, present and future Holders of Coupons, if any, appertaining thereto, and
of any Debt Security issued upon transfer thereof or in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon such Debt Security or such other Debt Securities or Coupons. Any action
taken by the Holders of the percentage in aggregate principal amount of the Debt
Securities of any series specified in this Indenture in connection with such
action shall be conclusively binding upon the Company, the Trustee and the
Holders of all the Securities and Coupons of such series.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders of Registered Securities entitled to give
their consent or take any other action required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders of Registered
Securities at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders of Registered Securities after such record date. No such
consent shall be valid or effective for more than 120 days after such record
date unless the consent of the Holders of the percentage in aggregate principal
amount of the Debt Securities of such series specified in this Indenture shall
have been received within such 120-day period.
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Purposes for Which Supplemental Indenture May Be
------------------------------------------------
Entered into Without Consent of Holders. The Company, when authorized by a
----------------------------------------
resolution of the Board of Directors, and the Trustee may from time to time and
at any time, without the consent of Holders, enter into an Indenture or
Indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof) for one or
more of the following purposes:
(a) to evidence the succession pursuant to Article X of another Person
to the Company, or
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successive successions, and the assumption by the Successor Company (as
defined in Section 10.01) of the covenants, agreements and obligations of
the Company in this Indenture and in the Debt Securities;
(b) to surrender any right or power herein conferred upon the Company,
to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the Holders of
all or any series of Debt Securities and the Coupons, if any, appertaining
thereto (and if such covenants are to be for the benefit of less than all
series of Debt Securities, stating that such covenants are expressly being
included solely for the benefit of such series) as the Board of Directors
shall consider to be for the protection of the Holders of such Debt
Securities, and to make the occurrence, or the occurrence and continuance,
of a Default in any of such additional covenants, restrictions, conditions
or provisions a Default or an Event of Default permitting the enforcement
of all or any of the several remedies provided in this Indenture; provided,
--------
however, that in respect of any such additional covenant, restriction,
-------
condition or provision 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 or may limit the right of the
Holders of a majority in aggregate principal amount of any or all series of
Debt Securities to waive such default;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein, in any supplemental Indenture or in any Debt Securities
of any series that may be defective or inconsistent with any other
provision contained herein, in any supplemental Indenture or in the Debt
Securities of such series; to convey, transfer, assign, mortgage or pledge
any property to or with the Trustee, or to make such other provisions in
regard to matters or questions arising under this Indenture as shall not
adversely affect the interests of any Holders of Debt Securities of any
series;
(d) to modify or amend this Indenture in such a manner as to permit
the qualification of this Indenture or any Indenture supplemental hereto
under the Trust Indenture Act as then in effect, except that nothing herein
contained shall permit or authorize the
85
inclusion in any Indenture supplemental hereto of the provisions referred
to in Section 316(a)(2) of the Trust Indenture Act;
(e) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registerable as to principal, to
change or eliminate any restrictions on the payment of principal of, or
premium, if any, on, Registered Securities or of principal of, or premium,
if any, or interest on, Bearer Securities or to permit Registered
Securities to be exchanged for Bearer Securities; provided, however, that
-------- -------
any such action shall not adversely affect the interests of the Holders of
Debt Securities or any Coupons of any series in any material respect or
permit or facilitate the issuance of Debt Securities of any series in
uncertificated form;
(f) to comply with Article X;
(g) in the case of any Debt Securities and Coupons, if any,
appertaining thereto subordinated pursuant to Article XII, to make any
change in Article XII that would limit or terminate the benefits available
to any holder of Senior Indebtedness (or Representatives therefor) under
Article XII;
(h) to add Guarantees with respect to the Debt Securities or to secure
the Debt Securities;
(i) to make any change that does not adversely affect the rights of
any Holder;
(j) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Debt Securities; provided,
however, that any such addition, change or elimination not otherwise
permitted under this Section 9.01 shall (i) neither (A) apply to any Debt
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Debt Security with respect to such
provision or (ii) shall become effective only when there is no such Debt
Security Outstanding;
(k) to evidence and provide for the acceptance of appointment
hereunder by a successor or separate Trustee with respect to the Debt
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to
86
provide for or facilitate the administration of the trusts hereunder by
more than one Trustee; and
(l) to establish the form or terms of Debt Securities and Coupons, if
any, of any series as permitted by Sections 2.01 and 2.03.
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, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
Indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental Indenture authorized by the provisions of this
Section 9.01 may be executed by the Company and the Trustee without the consent
of the Holders of any of the Debt Securities or Coupons, if any, appertaining
thereto at the time Outstanding, notwithstanding any of the provisions of
Section 9.02.
In the case of Debt Securities or Coupons, if any, appertaining
thereto subordinated pursuant to Article XII, an amendment under this Section
9.01 may not make any change that adversely affects the rights under Article XII
of any holder of Senior Indebtedness then outstanding unless the holders of such
Senior Indebtedness (or any group or Representative thereof authorized to give a
consent) consent to such change.
After an amendment under this Section 9.01 becomes effective, the
Company shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment. The failure to give such notice to
all such Holders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.01.
SECTION 9.02. Modification of Indenture with Consent of Holders of
----------------------------------------------------
Debt Securities. Without notice to any Holder but with the consent (evidenced
----------------
as provided in Section 8.01) of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Debt Securities of each series
affected by such supplemental Indenture, the Company, when authorized by a
resolution of the Board of Directors, and the Trustee may from time to time and
at any time enter into an Indenture or Indentures supplemental hereto (which
shall conform to the provisions
87
of the Trust Indenture Act as in force at the date of execution thereof) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental Indenture or of
modifying in any manner the rights of the Holders of the Debt Securities of such
series; provided, however, that no such supplemental Indenture, without the
-------- -------
consent of the Holders of each Debt Security so affected, shall (i) reduce the
percentage in principal amount of Debt Securities of any series whose Holders
must consent to an amendment; (ii) reduce the rate of or extend the time for
payment of interest on any Debt Security or Coupon or reduce the amount of any
payment to be made with respect to any Coupon; (iii) reduce the principal of or
extend the Stated Maturity of any Debt Security; (iv) reduce the premium payable
upon the redemption of any Debt Security or change the time at which any Debt
Security may or shall be redeemed in accordance with Article III; (v) make any
Debt Security or Coupon payable in Currency other than that stated in the Debt
Security; (vi) in the case of any Debt Security or Coupons, if any, appertaining
thereto subordinated pursuant to Article XII, make any change in Article XII
that adversely affects the rights of any Holder under Article XII; (vii) release
any security that may have been granted in respect of the Debt Securities;
(viii) make any change in Section 6.06 or this Section 9.02; (ix) change any
obligation of the Company to pay additional interest pursuant to Section 4.06;
or (x) limit the obligation of the Company to maintain a paying agency outside
the United States for payment on Bearer Securities as provided in Section 4.02
or limit the obligation of the Company to redeem a Bearer Security as provided
in Section 3.02(b).
A supplemental Indenture which changes or eliminates any covenant or
other provision of this Indenture which has been expressly included solely for
the benefit of one or more particular series of Debt Securities and Coupons, if
any, or which modifies the rights of the Holders of Debt Securities and Coupons
of such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Debt Securities
and Coupons, if any, of any other series.
Upon the request of the Company, accompanied by a copy of a resolution
of the Board of Directors authorizing the execution of any such supplemental
Indenture, and upon the filing with the Trustee of evidence of the consent of
Holders 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 Indenture or
88
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 Holders under this
Section 9.02 to approve the particular form of any proposed supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
In the case of any Debt Securities or Coupons, if any, appertaining
thereto, subordinated pursuant to Article XII, an amendment under this Section
9.02 may not make any change that adversely affects the rights under Article XII
of any holder of Senior Indebtedness then outstanding unless the holders of such
Senior Indebtedness (or any group or Representative thereof authorized to give a
consent) consent to such change.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment. The failure to give such notice to
all such Holders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.02.
SECTION 9.03. Effect of Supplemental Indentures. Upon the execution
----------------------------------
of any supplemental Indenture pursuant to the provisions of this Article IX,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental Indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental Indenture complies with the provisions of
this Article IX.
SECTION 9.04. Debt Securities May Bear Notation of Changes by
-----------------------------------------------
Supplemental Indentures. Debt Securities and Coupons, if any, of any series
------------------------
authenticated and delivered after the execution of any supplemental Indenture
pursuant to the provisions of this Article IX may, and shall if
89
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental Indenture. New Debt Securities and
Coupons of any series so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any modification of this 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 Debt Securities
and Coupons of such series then Outstanding. Failure to make the appropriate
notation or to issue a new Debt Security or Coupon of such series shall not
affect the validity of such amendment.
SECTION 9.05. Payment for Consent. Neither the Company nor any
--------------------
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Debt Securities or Coupons, if any,
appertaining thereto unless such consideration is offered to be paid to all
Holders that so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or agreement.
ARTICLE X
Consolidation, Merger, Sale or Conveyance
-----------------------------------------
SECTION 10.01. Consolidations and Mergers of the Company. The
------------------------------------------
Company shall not consolidate with or merge with or into any Person, or convey,
transfer or lease all or substantially all its assets, unless: (i) either (a)
the Company shall be the continuing Person in the case of a merger or (b) the
resulting, surviving or transferee Person if other than the Company (the
"Successor Company") shall be a corporation organized and existing under the
laws of the United States, any State thereof or the District of Columbia and the
Successor Company shall expressly assume, by an Indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Debt Securities and Coupons, if any,
according to their tenor, and this Indenture; (ii) immediately after giving
effect to such transaction (and treating any Indebtedness which becomes an
obligation of the Successor Company or any Subsidiary of the Company as a result
of such transaction as having been Incurred by the Successor Company or such
Subsidiary at the time of such transaction), no Default or Event of Default
would occur or be continuing; (iii) the Successor Company
90
waives any right to redeem any Bearer Security under circumstances in which the
Successor Company would be entitled to redeem such Bearer Security but the
Company would not have been so entitled to redeem if the consolidation, merger,
conveyance, transfer or lease had not occurred; and (iv) the Company shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and such supplemental
Indenture (if any) comply with this Indenture.
SECTION 10.02. Rights and Duties of Successor Corporation. In case
-------------------------------------------
of any consolidation or merger, or conveyance or transfer of the assets of the
Company as an entirety or virtually as an entirety in accordance with Section
10.01, the Successor Company shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party of the
first part, and the predecessor corporation shall be relieved of any further
obligation under the Indenture and the Securities. The Successor Company
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all the Debt Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of the Successor Company, instead of the Company,
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Debt Securities
and Coupons, if any, appertaining thereto, which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Debt Securities and Coupons, if any, appertaining
thereto, which the Successor Company thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Debt Securities and Coupons,
if any, appertaining thereto so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Debt Securities and Coupons, if
any, appertaining thereto theretofore or thereafter issued in accordance with
the terms of this Indenture as though all such Debt Securities and Coupons had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the Debt
Securities and Coupons, if any, appertaining thereto thereafter to be issued as
may be appropriate.
91
ARTICLE XI
Satisfaction and Discharge of Indenture; Defeasance;
----------------------------------------------------
Unclaimed Moneys
----------------
SECTION 11.01. Applicability of Article. If, pursuant to Section
-------------------------
2.03, provision is made for the defeasance of Debt Securities of a series and if
the Debt Securities of such series are Registered Securities and denominated and
payable only in Dollars (except as provided pursuant to Section 2.03), then the
provisions of this Article XI relating to defeasance of Debt Securities shall be
applicable except as otherwise specified pursuant to Section 2.03 for Debt
Securities of such series. Defeasance provisions, if any, for Debt Securities
denominated in a Foreign Currency or for Bearer Securities may be specified
pursuant to Section 2.03.
SECTION 11.02. Satisfaction and Discharge of Indenture; Defeasance.
----------------------------------------------------
(a) If at any time (i) the Company shall have delivered to the Trustee for
cancelation all Debt Securities of any series theretofore authenticated and
delivered (other than (1) Coupons appertaining to Bearer Securities of such
series called for redemption and maturing after the relevant redemption date,
surrender of which has been waived, (2) any Debt Securities and Coupons of such
series which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.09 and (3) Debt Securities and Coupons
for whose payment money has theretofore been deposited in trust and thereafter
repaid to the Company as provided in Section 11.05) or (ii) all Debt Securities
and the Coupons, if any, of such series not theretofore delivered to the Trustee
for cancelation 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 as trust funds the
entire amount in the Currency in which such Debt Securities are denominated
(except as otherwise provided pursuant to Section 2.03) sufficient to pay at
maturity or upon redemption all Debt Securities of such series not theretofore
delivered to the Trustee for cancelation, including principal and premium, if
any, and interest due or to become due on such date of maturity or redemption
date, 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
Indenture shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of such Debt Securities herein expressly
provided for and
92
rights to receive payments of principal of, and premium, if any, and interest
on, such Debt Securities and any right to receive additional interest as
provided in Section 4.06) with respect to the Debt Securities of such series,
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 Indenture.
(b) Subject to Sections 11.02(c), 11.03 and 11.07, the Company at any
time may terminate, with respect to Debt Securities of a particular series, (i)
all its obligations under the Debt Securities of such series and this Indenture
with respect to the Debt Securities of such series ("legal defeasance option")
or (ii) its obligations with respect to the Debt Securities of such series under
clause (iii) of Section 10.01 and the related operation of Section 6.01(d) and
the operation of Sections 6.01(e), (f), (i) and (j) ("covenant defeasance
option"). The Company may exercise its legal defeasance option notwithstanding
its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Debt Securities of the defeased series may not be accelerated because of an
Event of Default. If the Company exercises its covenant defeasance option,
payment of the Debt Securities of the defeased series may not be accelerated
because of an Event of Default specified in Sections 6.01(d), (e), (f), (i) and
(j) (except to the extent covenants or agreements referenced in such Sections
remain applicable).
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.07, 2.09, 4.02, 4.04, 5.01, 7.06, 7.10, 11.05, 11.06
and 11.07 shall survive until the Debt Securities of the defeased series have
been paid in full. Thereafter, the Company's obligations in
Sections 7.06, 11.05 and 11.06 shall survive.
SECTION 11.03. Conditions of Defeasance. The Company may exercise
-------------------------
its legal defeasance option or its
93
covenant defeasance option with respect to Debt Securities of a particular
series only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal of, and
premium, if any, and interest on, the Debt Securities of such series to
maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay the principal, premium and
interest when due on all the Debt Securities of such series to maturity or
redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the 123-day
period no Default specified in Section 6.01(g) or (h) with respect to the
Company occurs which is continuing at the end of the period;
(4) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Company and, if the Debt Securities of such series
are subordinated pursuant to Article XII, is not prohibited by Article XII;
(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940;
(7) in the event of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from the Internal Revenue Service a ruling, or (ii)
since the date of this Indenture there has been a change in the applicable
United States Federal income tax law, in either case of the effect that,
and based thereon such Opinion of Counsel shall confirm that, the Holders
of Debt Securities of such series will not recognize income, gain or loss
for United States
94
Federal income tax purposes as a result of such defeasance and will be
subject to United States Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
defeasance had not occurred;
(8) in the event of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of Debt Securities of such series will not recognize income, gain
or loss for United States Federal income tax purposes as a result of such
covenant defeasance and will be subject to United States Federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred; and
(9) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Debt Securities of such series as
contemplated by this Article XI have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Debt Securities of such series
at a future date in accordance with Article III.
SECTION 11.04. Application of Trust Money. The Trustee shall hold in
---------------------------
trust money or U.S. Government Obligations deposited with it pursuant to this
Article XI. It shall apply the deposited money and the money from U.S.
Government Obligations through any paying agent and in accordance with this
Indenture to the payment of principal of, and premium, if any, and interest on,
the Debt Securities and Coupons, if any, of the defeased series. In the event
the Debt Securities and Coupons, if any, of the defeased series are subordinated
pursuant to Article XII, money and securities so held in trust are not subject
to Article XII.
SECTION 11.05. Repayment to Company. The Trustee and any paying
---------------------
agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and any
paying agent shall pay to the Company upon request any money held by them for
the payment of principal, premium or interest that remains unclaimed for
95
two years, and, thereafter, Holders entitled to such money must look to the
Company for payment as general creditors.
SECTION 11.06. Indemnity for U.S. Government Obligations. The
------------------------------------------
Company shall pay and shall indemnify the Trustee and the Holders against any
tax, fee or other charge imposed on or assessed against deposited U.S.
Government Obligations or the principal and interest received on such U.S.
Government Obligations.
SECTION 11.07. Reinstatement. If the Trustee or any paying agent is
--------------
unable to apply any money or U.S. Government Obligations in accordance with this
Article XI by reason of any legal proceeding or by reason of any order or
judgment of any court or government authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Debt Securities of the defeased series shall be revived and
reinstated as though no deposit had occurred pursuant to this Article XI until
such time as the Trustee or any paying agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article XI.
ARTICLE XII
Subordination of Debt Securities
--------------------------------
SECTION 12.01. Applicability of Article; Agreement To Subordinate.
---------------------------------------------------
The provisions of this Article XII shall be applicable to the Debt Securities of
any series (Debt Securities of such series referred to in this Article XII as
"Subordinated Debt Securities") designated, pursuant to Section 2.03, as
subordinated to Senior Indebtedness. Each Holder by accepting a Subordinated
Debt Security agrees that the Indebtedness evidenced by such Subordinated Debt
Security is subordinated in right of payment, to the extent and in the manner
provided in this Article XII, to the prior payment of all Senior Indebtedness
and that the subordination is for the benefit of and enforceable by the holders
of Senior Indebtedness. All provisions of this Article XII shall be subject to
Section 12.12.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy. Upon any
--------------------------------------
payment or distribution of the assets of the Company to creditors upon a total
or partial liquidation or a total or partial dissolution of the Company or in a
96
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(1) holders of Senior Indebtedness shall be entitled to receive
payment in full in cash of the Senior Indebtedness (including interest (if
any), accruing on or after the commencement of a proceeding in bankruptcy,
whether or not allowed as a claim against the Company in such bankruptcy
proceeding) before Holders of Subordinated Debt Securities shall be
entitled to receive any payment of principal of, or premium, if any, or
interest on, the Subordinated Debt Securities; and
(2) until the Senior Indebtedness is paid in full, any distribution to
which Holders of Subordinated Debt Securities would be entitled but for
this Article XII shall be made to holders of Senior Indebtedness as their
interests may appear, except that such Holders may receive shares of stock
and any debt securities that are subordinated to Senior Indebtedness to at
least the same extent as the Subordinated Debt Securities.
SECTION 12.03. Default on Senior Indebtedness. The Company may not
-------------------------------
pay the principal of, or premium, if any, or interest on, the Subordinated Debt
Securities or make any deposit pursuant to Article XI and may not repurchase,
redeem or otherwise retire (except, in the case of Subordinated Debt Securities
that provide for a mandatory sinking fund pursuant to Section 3.05, by the
delivery of Subordinated Debt Securities by the Company to the Trustee pursuant
to the first paragraph of Section 3.06) any Debt Securities (collectively, "pay
the Subordinated Debt Securities") if (i) any principal, premium or interest in
respect of Senior Indebtedness is not paid within any applicable grace period
(including at maturity) or (ii) any other default on Senior Indebtedness occurs
and the maturity of such Senior Indebtedness is accelerated in accordance with
its terms unless, in either case, (x) the default has been cured or waived and
any such acceleration has been rescinded or (y) such Senior Indebtedness has
been paid in full in cash; provided, however, that the Company may pay the
-------- -------
Subordinated Debt Securities without regard to the foregoing if the Company and
the Trustee receive written notice approving such payment from the
Representative of each issue of Designated Senior Indebtedness. During the
continuance of any default (other than a default described in clause (i) or (ii)
of the preceding sentence) with respect to any Senior Indebtedness pursuant to
which the maturity thereof may be accelerated immediately without
97
further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, the Company may
not pay the Subordinated Debt Securities for a period (a "Payment Blockage
Period") commencing upon the receipt by the Company and the Trustee of written
notice of such default from the Representative of any Designated Senior
Indebtedness specifying an election to effect a Payment Blockage Period (a
"Blockage Notice") and ending 179 days thereafter (or earlier if such Payment
Blockage Period is terminated (i) by written notice to the Trustee and the
Company from the Person or Persons who gave such Blockage Notice, (ii) by
repayment in full in cash of such Designated Senior Indebtedness or (iii)
because the default giving rise to such Blockage Notice is no longer
continuing). Notwithstanding the provisions described in the immediately
preceding sentence (but subject to the provisions contained in the first
sentence of this Section 12.03), unless the holders of such Designated Senior
Indebtedness or the Representative of such holders shall have accelerated the
maturity of such Designated Senior Indebtedness, the Company may resume payments
on the Subordinated Debt Securities after such Payment Blockage Period. Not more
than one Blockage Notice may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to any number of issues of
Senior Indebtedness during such period; provided, however, that if any Blockage
-------- -------
Notice within such 360-day period is given by or on behalf of any holders of
Designated Senior Indebtedness (other than the Bank Indebtedness), the
Representative of the Bank Indebtedness may give another Blockage Notice within
such period; provided further, however, that in no event may the total number of
-------- ------- -------
days during which any Payment Blockage Period or Periods is in effect exceed 179
days in the aggregate during any 360 consecutive day period. For purposes of
this Section 12.03, no default or event of default which existed or was
continuing on the date of the commencement of any Payment Blockage Period with
respect to the Senior Indebtedness initiating such Payment Blockage Period shall
be, or be made, the basis of the commencement of a subsequent Payment Blockage
Period by the Representative of such Senior Indebtedness, whether or not within
a period of 360 consecutive days, unless such default or event of default shall
have been cured or waived for a period of not less than 90 consecutive days.
SECTION 12.04. Acceleration of Payment of Debt Securities. If payment
-------------------------------------------
of the Subordinated Debt Securities is accelerated because of an Event of
Default, the Company or the Trustee shall promptly notify the holders of the
98
Designated Senior Indebtedness (or their Representatives) of the acceleration.
SECTION 12.05. When Distribution Must Be Paid Over. If a
------------------------------------
distribution is made to Holders of Subordinated Debt Securities that because of
this Article XII should not have been made to them, the Holders who receive such
distribution shall hold it in trust for holders of Senior Indebtedness and pay
it over to them as their interests may appear.
SECTION 12.06. Subrogation. After all Senior Indebtedness is paid in
------------
full and until the Subordinated Debt Securities are paid in full, Holders
thereof shall be subrogated to the rights of holders of Senior Indebtedness to
receive distributions applicable to Senior Indebtedness. A distribution made
under this Article XII to holders of Senior Indebtedness which otherwise would
have been made to Holders of Subordinated Debt Securities is not, as between the
Company and such Holders, a payment by the Company on Senior Indebtedness.
SECTION 12.07. Relative Rights. This Article XII defines the
----------------
relative rights of Holders of Subordinated Debt Securities and holders of Senior
Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders of either Subordinated
Debt Securities or Debt Securities, the obligation of the Company, which is
absolute and unconditional, to pay principal of, and premium, if any, and
interest on, the Subordinated Debt Securities and the Debt Securities in
accordance with their terms; or
(2) prevent the Trustee or any Holder of either Subordinated Debt
Securities or Debt Securities from exercising its available remedies upon a
Default, subject to the rights of holders of Senior Indebtedness to
receive distributions otherwise payable to Holders of Subordinated Debt
Securities.
SECTION 12.08. Subordination May Not Be Impaired by Company. No
---------------------------------------------
right of any holder of Senior Indebtedness to enforce the subordination of the
Indebtedness evidenced by the Subordinated Debt Securities shall be impaired by
any act or failure to act by the Company or by its failure to comply with this
Indenture.
SECTION 12.09. Rights of Trustee and Paying Agent. Notwithstanding
-----------------------------------
Section 12.03, the Trustee or any
99
paying agent may continue to make payments on Subordinated Debt Securities and
shall not be charged with knowledge of the existence of facts that would
prohibit the making of any such payments unless, not less than two business days
prior to the date of such payment, a responsible officer of the Trustee receives
notice satisfactory to it that payments may not be made under this Article XII.
The Company, the Registrar, any paying agent, a Representative or a holder of
Senior Indebtedness may give the notice; provided, however, that, if an issue of
-------- -------
Senior Indebtedness has a Representative, only the Representative may give the
notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. The
Registrar and any paying agent may do the same with like rights. The Trustee
shall be entitled to all the rights set forth in this Article XII with respect
to any Senior Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness; and nothing in Article VII
shall deprive the Trustee of any of its rights as such holder. Nothing in this
Article XII shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.06.
SECTION 12.10. Distribution or Notice to Representative. Whenever a
------------------------------------------
distribution is to be made or a notice given to holders of Senior Indebtedness,
the distribution may be made and the notice given to their Representative (if
any).
SECTION 12.11. Article XII Not To Prevent Defaults or Limit Right to
-----------------------------------------------------
Accelerate. The failure to make a payment pursuant to the Debt Securities by
-----------
reason of any provision in this Article XII shall not be construed as preventing
the occurrence of a Default. Nothing in this Article XII shall have any effect
on the right of the Holders or the Trustee to accelerate the maturity of either
the Subordinated Debt Securities or the Debt Securities, as the case may be.
SECTION 12.12. Trust Moneys Not Subordinated. Notwithstanding
------------------------------
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article XI by the Trustee for
the payment of principal of, and premium, if any, and interest on, the
Subordinated Debt Securities or the Debt Securities shall not be subordinated to
the prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article XII, and none of the Holders thereof shall be obligated to
pay over any such amount to the
100
Company or any holder of Senior Indebtedness of the Company or any other
creditor of the Company.
SECTION 12.13. Trustee Entitled To Rely. Upon any payment or
-------------------------
distribution pursuant to this Article XII, the Trustee and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to such
Holders or (iii) upon the Representatives for the holders of Senior Indebtedness
for the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of the Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XII. In the event that the Trustee determines, in good faith,
that evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article XII, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and other facts pertinent to the rights of such
Person under this Article XII, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment. The provisions of Sections
7.01 and 7.02 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article XII.
SECTION 12.14. Trustee To Effectuate Subordination. Each Holder by
-------------------------------------
accepting a Subordinated Debt Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge
or effectuate the subordination between the Holders of Subordinated Debt
Securities and the holders of Senior Indebtedness as provided in this Article
XII and appoints the Trustee as attorney-in-fact for any and all such purposes.
SECTION 12.15. Trustee Not Fiduciary for Holders of Senior
-------------------------------------------
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
-------------
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Holders of Subordinated Debt
Securities or the Company or any other Person, money or
101
assets to which any holders of Senior Indebtedness shall be entitled by virtue
of this Article XII or otherwise.
SECTION 12.16. Reliance by Holders of Senior Indebtedness on
---------------------------------------------
Subordination Provisions. Each Holder by accepting a Subordinated Debt Security
-------------------------
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Subordinated Debt Securities, to acquire and continue
to hold, or to continue to hold, such Senior Indebtedness and such holder of
Senior Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
ARTICLE XIII
Miscellaneous Provisions
------------------------
SECTION 13.01. Successors and Assigns of Company Bound by Indenture.
-----------------------------------------------------
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company or the Trustee shall bind its
successors and assigns, whether so expressed or not.
SECTION 13.02. Acts of Board, Committee or Officer of Successor
--------------------------- --------------------
Company Valid. Any act or proceeding by any provision of this Indenture
--------------
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any Successor Company.
SECTION 13.03. Required Notices or Demands. Except as otherwise
----------------------------
expressly provided in this Indenture, any notice or demand which by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the Holders to or on the Company may be given or served by
being deposited postage prepaid in a post office letter box in the United States
addressed (until another address is filed by the Company with the Trustee) as
follows: ChiRex Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: General Counsel. Except as otherwise expressly provided in
this Indenture, any notice, direction, request or demand by the Company or by
any Holder to or upon the Trustee may be given or made, for all purposes, by
being deposited postage prepaid in a post office letter box in the United States
addressed to the
102
corporate trust office of the Trustee initially at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice required or permitted to a Registered Holder by the Company
or the Trustee pursuant to the provisions of this Indenture shall be deemed to
be properly mailed by being deposited postage prepaid in a post office letter
box in the United States addressed to such Holder at the address of such Holder
as shown on the Debt Security Register. Any report pursuant to Section 313 of
the Trust Indenture Act shall be transmitted in compliance with subsection (c)
therein.
Any notice required or permitted to a Bearer Holder by the Company or
the Trustee pursuant to this Indenture shall be deemed to be properly given if
published on two separate business days in an Authorized Newspaper or Newspapers
in such Place or Places of Payment specified pursuant to Section 2.03, the first
such publication to be not earlier than the earliest date and not later than two
business days prior to the latest date prescribed for the giving of such notice.
Notwithstanding the foregoing, any notice to Holders of Floating Rate Debt
Securities regarding the determination of a periodic rate of interest, if such
notice is required pursuant to Section 2.03, shall be sufficiently given if
given in the manner specified pursuant to Section 2.03.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, then such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose hereunder.
In the event of suspension of publication of any Authorized Newspaper
or by reason of any other cause it shall be impracticable to give notice by
publication, then such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
Failure to mail a notice or communication to a Holder or any defect in
it or any defect in any notice by publication as to a Holder shall not affect
the sufficiency of such notice with respect to other Holders. If a notice or
communication is mailed or published in the manner provided above, it is
conclusively presumed duly given.
103
SECTION 13.04. Indenture and Debt Securities To Be Construed in
------------------------------------------------
Accordance with the Laws of the State of New York. This Indenture, each Debt
--------------------------------------------------
Security and each Coupon shall be deemed to be New York contracts, and for all
purposes shall be construed in accordance with the laws of said State (without
reference to principles of conflicts of law).
SECTION 13.05. Officers' Certificate and Opinion of Counsel To Be
--------------------------------------------------
Furnished upon Application or Demand by the Company. Upon any application or
----------------------------------------------------
demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (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 opinions 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 13.06. Payments Due on Legal Holidays. In any case where the
-------------------------------
date of maturity of interest on or principal of and premium, if any, on the Debt
Securities of a series or the date fixed for redemption or repayment of any Debt
Security or the making of any sinking fund payment shall not be a business day
at any Place of Payment for the Debt Securities of such series, then payment of
interest or principal and premium, if any, or the making of such sinking fund
payment need not be made on such date at such Place of Payment, but may be made
on the next succeeding business day at such Place of Payment with the same force
and effect as
104
if made on the date of maturity or the date fixed for redemption, and no
interest shall accrue for the period after such date. If a record date is not a
business day, the record date shall not be affected.
SECTION 13.07. Provisions Required by Trust Indenture Act to Control.
-----------------------------------------------------
If and to the extent that any provision of this Indenture limits, qualifies or
conflicts with another provision included in this Indenture which is required to
be included in this Indenture by any of Sections 310 to 318, inclusive, of the
Trust Indenture Act, such required provision shall control.
SECTION 13.08. Computation of Interest on Debt Securities. Interest,
-------------------------------------------
if any, on the Debt Securities shall be computed on the basis of a 360-day year
of twelve 30-day months, except as may otherwise be provided pursuant to Section
2.03.
SECTION 13.09. Rules by Trustee, Paying Agent and Registrar. The
---------------------------------------------
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and any paying agent may make reasonable rules for their functions.
SECTION 13.10. No Recourse Against Others. An incorporator or any
---------------------------
past, present or future director, officer, employee or stockholder, as such, of
the Company shall not have any liability for any obligations of the Company
under the Debt Securities, the Coupons or this Indenture or for any claim based
on, in respect of or by reason of such obligations or their creation. By
accepting a Debt Security or Coupon, each Holder shall waive and release all
such liability. The waiver and release shall be part of the consideration for
the issue of the Debt Securities and Coupons.
SECTION 13.11. Severability. In case any provision in this
-------------
Indenture, the Debt Securities or the Coupons shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 13.12. Effect of Headings. The article and section headings
-------------------
herein and in the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 13.13. Indenture May Be Executed in Counterparts. This
------------------------------------------
Indenture may be executed in any number of counterparts, each of which shall be
an original; but
105
such counterparts shall together constitute but one and the same instrument.
The Trustee hereby accepts the trusts in this Indenture upon the terms
and conditions herein set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly signed as of the date first written above.
CHIREX INC.,
by_________________________________
Name:
Title:
by_________________________________
Name:
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK,
by_________________________________
Name:
Title: