Exhibit 4(1)
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ARROW ELECTRONICS, INC.
and
BANK OF MONTREAL TRUST COMPANY,
Trustee
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Indenture
Dated as of __________ __, 1997
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TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions........................................ 1
Section 1.2 Other Definitions.................................. 6
Section 1.3 Incorporation By Reference Of Trust Indenture Act.. 7
Section 1.4 Rules Of Construction.............................. 7
ARTICLE 2
THE SECURITIES
Section 2.1 Form............................................... 8
Section 2.2 Execution And Authentication....................... 8
Section 2.3 Amount Unlimited; Issuable In Series............... 9
Section 2.4 Denomination And Date Of Securities; Payments Of
Interest......................................... 12
Section 2.5 Registrar And Paying Agent; Agents Generally....... 13
Section 2.6 Paying Agent To Hold Money In Trust................ 13
Section 2.7 Transfer And Exchange.............................. 14
Section 2.8 Replacement Securities............................. 16
Section 2.9 Outstanding Securities............................. 17
Section 2.10 Temporary Securities............................... 17
Section 2.11 Cancellation....................................... 18
Section 2.12 CUSIP Numbers...................................... 18
Section 2.13 Defaulted Interest................................. 18
Section 2.14 Series May Include Tranches........................ 18
ARTICLE 3
REDEMPTION
Section 3.1 Applicability Of Article........................... 19
Section 3.2 Notice Of Redemption; Partial Redemptions.......... 19
Section 3.3 Payment Of Securities Called For Redemption........ 20
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Section 3.4 Exclusion Of Certain Securities From Eligibility
For Selection For Redemption....................... 21
Section 3.5 Mandatory And Optional Sinking Funds............... 21
ARTICLE 4
COVENANTS
Section 4.1 Payment Of Securities.............................. 24
Section 4.2 Maintenance Of Office Or Agency.................... 24
Section 4.3 Negative Pledge.................................... 25
Section 4.4 Certain Sale And Lease-Back Transactions........... 26
Section 4.5 Certificate To Trustee............................. 27
Section 4.6 Reports By The Company............................. 27
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.1 When Company May Merge, Etc........................ 28
Section 5.2 Successor Substituted.............................. 28
ARTICLE 6
DEFAULT AND REMEDIES
Section 6.1 Events Of Default.................................. 29
Section 6.2 Acceleration....................................... 30
Section 6.3 Other Remedies..................................... 31
Section 6.4 Waiver Of Past Defaults............................ 31
Section 6.5 Control By Majority................................ 32
Section 6.6 Limitation On Suits................................ 32
Section 6.7 Rights Of Holders To Receive Payment............... 33
Section 6.8 Collection Suit By Trustee......................... 33
Section 6.9 Trustee May File Proofs Of Claim................... 33
Section 6.10 Application Of Proceeds............................ 33
Section 6.11 Restoration Of Rights And Remedies................. 34
Section 6.12 Undertaking For Costs.............................. 34
Section 6.13 Rights And Remedies Cumulative..................... 35
Section 6.14 Delay Or Omission Not Waiver....................... 35
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ARTICLE 7
TRUSTEE
Section 7.1 General............................................ 35
Section 7.2 Certain Rights Of Trustee.......................... 35
Section 7.3 Individual Rights Of Trustee....................... 37
Section 7.4 Trustee's Disclaimer............................... 37
Section 7.5 Notice Of Default.................................. 37
Section 7.6 Reports By Trustee To Holders...................... 38
Section 7.7 Compensation And Indemnity......................... 38
Section 7.8 Replacement Of Trustee............................. 39
Section 7.9 Successor Trustee By Merger, Etc................... 40
Section 7.10 Eligibility........................................ 40
Section 7.11 Money Held In Trust................................ 40
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.1 Defeasance Within One Year Of Payment.............. 40
Section 8.2 Defeasance......................................... 41
Section 8.3 Covenant Defeasance................................ 42
Section 8.4 Application Of Trust Money......................... 43
Section 8.5 Repayment To Company............................... 43
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Without Consent Of Holders......................... 44
Section 9.2 With Consent Of Holders............................ 44
Section 9.3 Revocation And Effect Of Consent................... 45
Section 9.4 Notation On Or Exchange Of Securities.............. 46
Section 9.5 Trustee To Sign Amendments, Etc.................... 46
Section 9.6 Conformity With Trust Indenture Act................ 46
ARTICLE 10
MISCELLANEOUS
Section 10.1 Trust Indenture Act Of 1939........................ 47
Section 10.2 Notices............................................ 47
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Section 10.3 Certificate And Opinion As To Conditions Precedent. 48
Section 10.4 Statements Required In Certificate Or Opinion...... 48
Section 10.5 Evidence Of Ownership.............................. 49
Section 10.6 Rules By Trustee, Paying Agent Or Registrar........ 50
Section 10.7 Payment Date Other Than A Business Day............. 50
Section 10.8 Governing Law...................................... 50
Section 10.9 No Adverse Interpretation Of Other Agreements...... 50
Section 10.10 Successors......................................... 50
Section 10.11 Duplicate Originals................................ 50
Section 10.12 Separability....................................... 51
Section 10.13 Table Of Contents, Headings, Etc................... 51
Section 10.14 Incorporators, Shareholders, Officers And
Directors Of Company Exempt From Individual
Liability.......................................... 51
Section 10.15 Judgment Currency.................................. 51
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INDENTURE, dated as of ________ __, 1997, between Arrow
Electronics, Inc., a New York corporation (the "Company"), and Bank of Montreal
Trust Company (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time
to time of its debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration thereof, the Company has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Company and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders from
time to time of the Securities or of any and all series thereof and of the
coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
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Section 1.1 Definitions.
"Agent" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"Attributable Debt" means, when used in connection with a sale
and lease-back transaction referred to in Section 4.4, on any date as of which
the amount thereof is to be determined, the product of (a) the net proceeds from
such sale and lease-back transaction multiplied by (b) a fraction, the numerator
of which is the number of full years of the term of the lease relating to the
property involved in such sale and lease-back transaction (without regard to any
options to renew or extend such term) remaining on the date of the making of
such computation and the denominator of which is the number of full years of the
term of such lease measured from the first day of such term.
"Authorized Newspaper" means a newspaper (which, in the case
of The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition) and in the case of London, will, if practicable, be the
Financial Times (London Edition) and published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York or ▇▇
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▇▇▇▇▇▇, as applicable. If it shall be impractical in the opinion of the Trustee
to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient publication
of such notice.
"Board Resolution" means one or more resolutions of the board
of directors of the Company or any authorized committee thereof, certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
and to be in full force and effect on the date of certification, and delivered
to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions are
authorized or required by law or regulation to close in The City of New York or
in the city in which the Corporate Trust Office is located, with respect to any
Security the interest on which is based on the offered quotations in the
interbank Eurodollar market for dollar deposits in London, or with respect to
Securities denominated in a specified currency other than United States dollars,
in the principal financial center of the country of the specified currency.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's capital stock or equity,
including, without limitation, all Common Stock and Preferred Stock.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's common stock, whether now
outstanding or issued after the date of this Indenture, including, without
limitation, all series and classes of such common stock.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces it pursuant to Article 5 of this
Indenture and thereafter means the successor.
"Consolidated Net Tangible Assets" means total assets after
deducting therefrom all current liabilities and intangible assets as set forth
in the most recent balance sheet of the Company and its consolidated
Subsidiaries and computed in accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date of this Indenture,
located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Vice President.
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"Default" means any Event of Default as defined in Section 6.1
and any event that is, or after notice or passage of time or both would be, an
Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 2.3 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Registered Global Securities of that series. The initial Depositary shall be The
Depository Trust Company, New York, New York.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exempted Debt" means the sum, without duplication, of the
following items outstanding as of the date Exempted Debt is being determined:
(i) indebtedness of the Company and its Restricted Subsidiaries incurred after
the date of this Indenture and secured by liens created or assumed or permitted
to exist pursuant to Section 4.3(b) and (ii) Attributable Debt of the Company
and its Restricted Subsidiaries in respect of all sale and lease-back
transactions with regard to any Principal Property entered into pursuant to
Section 4.4(b).
"Funded Debt" means all indebtedness for money borrowed,
including purchase money indebtedness, having a maturity of more than one year
from the date of its creation or having a maturity of less than one year but by
its terms being renewable or extendible, at the option of the obligor in respect
thereof, beyond one year from the date of its creation.
"GAAP" means generally accepted accounting principles in the
United States of America at the date of any computation required or permitted
hereunder.
"Holder" or "Securityholder" means the registered holder of
any Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed or as
it may be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established as contemplated pursuant to Sections 2.1
and 2.3.
"Investment" means any investment in any Person, whether by
means of share purchase, capital contribution, loan, time deposit or otherwise.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind, or any other type
of preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Indenture, the
Company or any Subsidiary shall be deemed to own subject to a Lien any
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asset that it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Officer" means, with respect to the Company, the Chairman of
the Board of Directors, the President or Chief Executive Officer, any Vice
President, the Chief Financial Officer, the Treasurer or any Assistant
Treasurer, or the Secretary or any Assistant Secretary.
"Officers' Certificate" means a certificate signed in the name
of the Company (i) by the Chairman of the Board of Directors, the President or
Chief Executive Officer or a Vice President and (ii) by the Chief Financial
Officer, the Treasurer or any Assistant Treasurer, or the Secretary or any
Assistant Secretary, complying with Section 10.4 and delivered to the Trustee.
Each such certificate shall comply with Section 314 of the Trust Indenture Act
and include (except as otherwise expressly provided in this Indenture) the
statements provided in Section 10.4, if and to the extent required thereby.
"Opinion of Counsel" means a written opinion signed by legal
counsel, who may be an employee of or counsel to the Company, satisfactory to
the Trustee and complying with Section 10.4. Each such opinion shall comply with
Section 314 of the Trust Indenture Act and include the statements provided in
Section 10.4, if and to the extent required thereby.
"original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of authentication of such Security or (b) the
date of any Security (or portion thereof) for which such Security was issued
(directly or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.2.
"Periodic Offering" means an offering of Securities of a
series from time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of this Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"Principal" of a Security means the principal amount of, and,
unless the context indicates otherwise, includes any premium payable on, the
Security.
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"Principal Property" means any manufacturing or processing
plant or warehouse owned at the date hereof or hereafter acquired by the Company
or any Restricted Subsidiary of the Company which is located within the United
States and the gross book value of which (including related land and
improvements thereon and all machinery and equipment included therein without
deduction of any depreciation reserves) on the date as of which the
determination is being made exceeds 2% of Consolidated Net Tangible Assets,
other than (i) any such manufacturing or processing plant or warehouse or any
portion thereof (together with the land on which it is erected and fixtures
comprising a part thereof) which is financed by industrial development bonds
which are tax exempt pursuant to Section 103 of the Internal Revenue Code (or
which receive similar tax treatment under any subsequent amendments thereto or
any successor laws thereof or under any other similar statute of the United
States), (ii) any property which in the opinion of the Company's Board of
Directors is not of material importance to the total business conducted by the
Company as an entirety, or (iii) any portion of a particular property which is
similarly found not to be of material importance to the use or operation of such
property.
"Registered Global Security" means a Security evidencing all
or a part of a series of Registered Securities, issued to the Depositary for
such series in accordance with Section 2.2, and bearing the legend prescribed in
Section 2.2.
"Registered Security" means any Security registered on the
Security Register (as defined in Section 2.5).
"Responsible Officer" means, when used with respect to the
Trustee, any senior trust officer, any vice president, any trust officer, any
assistant trust officer, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Restricted Subsidiary" means a Subsidiary of the Company (i)
substantially all the property of which is located, or substantially all the
business of which is carried on, within the United States, and (ii) which owns
Principal Property; provided, however, that any Subsidiary may be declared a
Restricted Subsidiary by Board Resolution, effective as of the date such Board
Resolution is adopted; provided further, that any such declaration may be
rescinded by further Board Resolution, effective as of the date such further
Board Resolution is adopted.
"Securities" means any of the securities, as defined in the
first paragraph of the recitals hereof, that are authenticated and delivered
under this Indenture and, unless the context indicates otherwise, shall include
any coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
outstanding Voting Stock is owned, directly or indirectly, by such Person and
one or more other Subsidiaries of such Person.
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"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor replaces it in accordance with the
provisions of Article 7 and thereafter means such successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended (15 U.S. Code Sections 77aaa-77bbbb), as it may be amended from time
to time.
"UCC" means the Uniform Commercial Code, as in effect in each
applicable jurisdiction.
"United States Bankruptcy Code" means the Bankruptcy Reform
Act of 1978, as amended and as codified in Title 11 of the United States Code,
as amended from time to time hereafter, or any successor federal bankruptcy law.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Voting Stock" means with respect to any Person, Capital Stock
of any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Yield to Maturity" means, as the context may require, the
yield to maturity (i) on a series of Securities or (ii) if the Securities of a
series are issuable from time to time, on a Security of such series, calculated
at the time of issuance of such series in the case of clause (i), or at the time
of issuance of such Security of such series in the case of clause (ii), or, if
applicable, at the most recent redetermination of interest on such series or on
such Security, and calculated in accordance with the constant interest method or
such other accepted financial practice as is specified in the terms of such
Security.
Section 1.2 Other Definitions. Each of the following terms is
defined in the section set forth opposite such term:
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Term Section
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Authenticating Agent 2.2
Cash Transaction 7.3
Dollars 4.2
Event of Default 6.1
Judgment Currency 10.15
mandatory sinking fund payment 3.5
optional sinking fund payment 3.5
Paying Agent 2.5
Record Date 2.4
Registrar 2.5
Required Currency 10.15
Security Register 2.5
Self-Liquidating Paper 7.3
sinking fund payment date 3.5
tranche 2.14
Section 1.3 Incorporation By Reference Of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture. The
following terms used in this Indenture that are defined by the Trust Indenture
Act have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a
Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All other terms used in this Indenture that are defined by the
Trust Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined herein
have the meanings assigned to them therein.
Section 1.4 Rules Of Construction. Unless the context
otherwise requires:
(i) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(ii) words in the singular include the plural, and words
in the plural include the singular;
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(iii) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(iv) all references to Sections or Articles refer to
Sections or Articles of this Indenture unless otherwise indicated; and
(v) use of masculine, feminine or neuter pronouns should
not be deemed a limitation, and the use of any such pronouns should be
construed to include, where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
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Section 2.1 Form. The Securities of each series shall be
substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions or in one
or more indentures supplemental hereto, or in one or more Officer's Certificates
pursuant to such Board Resolutions or supplemental indentures, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with
the provisions of this Indenture, as may be required to comply with any law, or
with any rules of any securities exchange or usage, all as may be determined by
the officers executing such Securities as evidenced by their execution of the
Securities. Unless otherwise so established, Unregistered Securities shall have
coupons attached.
Section 2.2 Execution And Authentication. Two officers shall
execute the Securities (other than coupons) for the Company by facsimile or
manual signature in the name and on behalf of the Company. The seal of the
Company, if any, shall be reproduced on the Securities. If an Officer whose
signature is on a Security no longer holds that office at the time the Security
is authenticated, the Security shall nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent (the "Authenticating Agent") to authenticate Securities
other than coupons. The Authenticating Agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent.
A Security (other than coupons) shall not be valid until the
Trustee or Authenticating Agent manually signs the certificate of authentication
on the Security. The signature shall be conclusive evidence that the Security
has been authenticated under this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
having attached thereto appropriate coupons, if any, executed by the Company to
the Trustee for authentication together with the
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applicable documents referred to below in this Section, and the Trustee shall
thereupon authenticate and deliver such Securities to or upon the written order
of the Company. In authenticating any Securities of a series, the Trustee shall
be entitled to receive prior to the first authentication of any Securities of
such series, and (subject to Article 7) shall be fully protected in relying
upon, unless and until such documents have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental
indenture referred to in Sections 2.1 and 2.3 by or pursuant to which
the forms and terms of the Securities of that series were established;
(2) any Officers' Certificate referred to in Sections 2.1
and 2.3 setting forth the form or forms and terms of the Securities,
stating that the form or forms and terms of the Securities of such
series have been, or will be when established in accordance with such
procedures as shall be referred to therein, established in compliance
with this Indenture; and
(3) at the option of the Company, either an Opinion of
Counsel, or a letter addressed to the Trustee permitting it to rely on
an Opinion of Counsel, substantially to the effect that the Securities
have been duly authorized and, if executed and authenticated in
accordance with the provisions of the Indenture and delivered to and
duly paid for by the purchasers thereof on the date of such opinion,
would be entitled to the benefits of the Indenture and would be valid
and binding obligations of the Company, enforceable against the Company
in accordance with their respective terms, subject to bankruptcy,
insolvency, reorganization, receivership, moratorium and other similar
laws affecting creditors' rights generally, general principles of
equity, and such other matters as shall be specified therein.
If the Company shall establish pursuant to Section 2.3 that
the Securities of a series or a portion thereof are to be issued in the form of
one or more Registered Global Securities, then the Company shall execute and the
Trustee shall authenticate and deliver one or more Registered Global Securities
that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of all of the Securities of such series issued in
such form and not yet canceled, (ii) shall be registered in the name of the
Depositary for such Registered Global Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary or
its custodian or pursuant to such Depositary's instructions and (iv) shall bear
a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Securities in definitive registered form, this
Security may not be transferred except as a whole by the Depositary to the
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Section 2.3 Amount Unlimited; Issuable In Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and each
such series shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Company. There shall be established in or pursuant to
Board Resolution or one or more indentures supplemental
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hereto, or in an Officer's Certificate pursuant to such Board Resolution or such
supplemental indenture, prior to the initial issuance of Securities of any
series, subject to the last sentence of this Section 2.3,
(1) the designation of the Securities of the series,
which shall distinguish the Securities of the series from the
Securities of all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture and any limitation on the ability of the Company to
increase such aggregate principal amount after the initial issuance of
the Securities of that series (except for securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, or upon redemption of, other Securities of the series pursuant
hereto);
(3) the date or dates on which the principal of the
Securities of the series is payable (which date or dates may be fixed
or extendible);
(4) the rate or rates (which may be fixed or variable)
per annum at which the Securities of the series shall bear interest, if
any, the date or dates from which such interest shall accrue, on which
such interest shall be payable and (in the case of Registered
Securities) on which a record shall be taken for the determination of
Holders to whom interest is payable and/or the method by which such
rate or rates or date or dates shall be determined;
(5) if other than as provided in Section 4.2, the place
or places where the principal of and any interest on Securities of the
series shall be payable, any Registered Securities of the series may be
surrendered for exchange, notices, demands to or upon the Company in
respect of the Securities of the series and this Indenture may be
served and notice to Holders may be published;
(6) the right, if any, of the Company to redeem
Securities of the series, in whole or in part, at its option and the
period or periods within which, the price or prices at which and any
terms and conditions upon which Securities of the series may be so
redeemed, pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem,
purchase or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
Holder thereof and the price or prices at which and the period or
periods within which and any of the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities of the
series shall be issuable;
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(9) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which shall
be payable upon acceleration of the maturity thereof;
(10) if other than the coin or currency in which the
Securities of the series are denominated, the coin or currency in which
payment of the principal of or interest on the Securities of the series
shall be payable or if the amount of payments of principal of and/or
interest on the Securities of the series may be determined with
reference to an index based on a coin or currency other than that in
which the Securities of the series are denominated, the manner in which
such amounts shall be determined;
(11) if other than the currency of the United States of
America, the currency or currencies, including composite currencies, in
which payment of the Principal of and interest on the Securities of the
series shall be payable, and the manner in which any such currencies
shall be valued against other currencies in which any other Securities
shall be payable;
(12) whether the Securities of the series or any portion
thereof will be issuable as Registered Securities (and if so, whether
such Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without coupons), or any combination
of the foregoing, any restrictions applicable to the offer, sale or
delivery of Unregistered Securities or the payment of interest thereon
and, if other than as provided herein, the terms upon which
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(13) whether and under what circumstances the Company will
pay additional amounts on the Securities of the series held by a person
who is not a U.S. person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the
Company will have the option to redeem such Securities rather than pay
such additional amounts;
(14) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(15) unless otherwise provided herein, any trustees,
depositaries, authenticating or paying agents, transfer agents or the
registrar or any other agents with respect to the Securities of the
series;
(16) provisions, if any, for the defeasance of the
Securities of the series (including provisions permitting defeasance of
less than all Securities of the series), which provisions may be in
addition to, in substitution for, or in modification of (or any
combination of the foregoing) the provisions of Article 8;
(17) if the Securities of the series are issuable in whole
or in part as one or more Registered Global Securities, the identity of
the Depositary for such Registered
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Global Security or Securities (which Depositary shall, at the time of
its designation as Depositary and at all times while it serves as
Depositary, be a clearing agency registered under the Exchange Act and
any other applicable statute or regulation) if other than The
Depository Trust Company, New York, New York;
(18) any other events of default or covenants with respect
to the Securities of the series in addition to the Events of Default or
covenants set forth herein; and
(19) any other terms of the Securities of the series
(which terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series and coupons, if any,
appertaining thereto shall be substantially identical, except in the case of
Registered Securities as to date and denomination, except in the case of any
Periodic Offering and except as may otherwise be provided by or pursuant to the
Board Resolution referred to above or as set forth in any such indenture
supplemental hereto, or Officer's Certificate pursuant to such Board Resolution
or such supplemental indenture. All Securities of any one series need not be
issued at the same time and may be issued from time to time, consistent with the
terms of this Indenture, if so provided by or pursuant to such Board Resolution
or in any such indenture supplemental hereto, or Officer's Certificate pursuant
to such Board Resolution or such supplemental indenture, and any forms and terms
of Securities to be issued from time to time may be completed and established
from time to time prior to the issuance thereof by procedures described in such
Board Resolution or supplemental indenture, or Officer's Certificate pursuant to
such Board Resolution or such supplemental indenture.
Section 2.4 Denomination And Date Of Securities; Payments Of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, if not so established with respect to Securities
of any series, in denominations of $1,000 and any integral multiple thereof. The
Securities of each series shall be numbered, lettered or otherwise distinguished
in such manner or in accordance with such plan as the Officers of the Company
executing the same may determine, as evidenced by their execution thereof.
Each Security shall be dated the date of its authentication.
The Securities of each series shall bear interest, if any, from the date, and
such interest and shall be payable on the dates, established as contemplated by
Section 2.3.
The person in whose name any Registered Security of any series
is registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Company shall default in the payment of the
interest due on such interest payment date for such series, in which case the
provisions of Section 2.13 shall apply. The term "Record Date" as used with
respect to an interest payment date (except a date for payment of defaulted
interest) for the Securities of any series shall mean the date specified as such
in the terms of the Registered Securities of such series established as
contemplated by Section 2.3, or, if no such
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date is so established, the fifteenth day next preceding such interest payment
date, whether or not such record date is a Business Day.
Section 2.5 Registrar And Paying Agent; Agents Generally. The
Company shall maintain an office or agency where Securities may be presented for
registration, registration of transfer or for exchange (the "Registrar") and an
office or agency where Securities may be presented for payment (the "Paying
Agent"), which shall be in the Borough of Manhattan, The City of New York. The
Company shall cause the Registrar to keep a register of the Registered
Securities and of their registration, transfer and exchange (the "Security
Register"). The Company may have one or more additional Paying Agents or
transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture and the Trust Indenture Act that relate to such
Agent. The Company shall give prompt written notice to the Trustee of the name
and address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act
as such.
The Company may remove any Agent upon written notice to such
Agent and the Trustee; provided that no such removal shall become effective
until (i) the acceptance of an appointment by a successor Agent to such Agent as
evidenced by an appropriate agency agreement entered into by the Company and
such successor Agent and delivered to the Trustee or (ii) notification to the
Trustee that the Trustee shall serve as such Agent until the appointment of a
successor Agent in accordance with clause (i) of this proviso. The Company or
any affiliate of the Company may act as Paying Agent or Registrar; provided that
neither the Company nor an affiliate of the Company shall act as Paying Agent in
connection with the defeasance of the Securities or the discharge of this
Indenture under Article 8.
The Company initially appoints the Trustee as Registrar and
Paying Agent. If, at any time, the Trustee is not the Registrar, the Registrar
shall make available to the Trustee ten days prior to each interest payment date
and at such other times as the Trustee may reasonably request the names and
addresses of the Holders as they appear in the Security Register.
Section 2.6 Paying Agent To Hold Money In Trust. Not later
than 10:00 a.m. New York City time on each due date of any Principal or interest
on any Securities, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such Principal or interest. The
Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the Paying Agent for
the payment of Principal of and interest on such Securities and shall promptly
notify the Trustee of any default by the Company in making any such payment. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and account for any funds disbursed, and the Trustee may at any time
during the continuance of any payment default, upon written request to a Paying
Agent, require such Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed. Upon doing so, the Paying Agent shall have
no further
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liability for the money so paid over to the Trustee. If the Company or any
affiliate of the Company acts as Paying Agent, it will, on or before each due
date of any Principal of or interest on any Securities, segregate and hold in a
separate trust fund for the benefit of the Holders thereof a sum of money
sufficient to pay such Principal or interest so becoming due until such sum of
money shall be paid to such Holders or otherwise disposed of as provided in this
Indenture, and will promptly notify the Trustee in writing of its action or
failure to act as required by this Section.
Section 2.7 Transfer And Exchange. Unregistered Securities
(except for any temporary global Unregistered Securities) and coupons (except
for coupons attached to an temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Global Security, except as set forth below)
may be exchanged for a Registered Security or Registered Securities of such
series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be exchanged
at the agency of the Company that shall be maintained for such purpose in
accordance with Section 2.5 and upon payment, if the Company shall so require,
of the charges hereinafter provided. If the Securities of any series are issued
in both registered and unregistered form, except as otherwise established
pursuant to Section 2.3, at the option of the Holder thereof, Unregistered
Securities of any series may be exchanged for Registered Securities of such
series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Unregistered Securities to be exchanged
at the agency of the Company that shall be maintained for such purpose in
accordance with Section 4.2, with, in the case of Unregistered Securities that
have coupons attached, all unmatured coupons and all matured coupons in default
thereto appertaining, and upon payment, if the Company shall so require, of the
charges hereinafter provided. At the option of the Holder thereof, if
Unregistered Securities of any series, maturity date, interest rate and original
issue date are issued in more than one authorized denomination, except as
otherwise established pursuant to Section 2.3, such Unregistered Securities may
be exchanged for Unregistered Securities of such series and tenor having
authorized denominations and an equal aggregate principal amount, upon surrender
of such Unregistered Securities to be exchanged at the agency of the Company
that shall be maintained for such purpose in accordance with Section 4.2, with,
in the case of Unregistered Securities that have coupons attached, all unmatured
coupons and all matured coupons in default thereto appertaining, and upon
payment, if the Company shall so require, of the charges hereinafter provided.
Registered Securities of any series may not be exchanged for Unregistered
Securities of such series. Whenever any securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder or his
attorney duly authorized in writing.
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The Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
Notwithstanding any other provision of this Section 2.7,
unless and until it is exchanged in whole or in part for Securities in
definitive registered form, a Registered Global Security representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global
Securities of any series notifies the Company that it is unwilling or unable to
continue as Depositary for such Registered Global Securities or if at any time
the Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary eligible
under applicable law with respect to such Registered Global Securities. If a
successor Depositary eligible under applicable law for such Registered Global
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of the Company's order for the
authentication and delivery of definitive Registered Securities of such series
and tenor, will authenticate and deliver Registered Securities of such series
and tenor, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of such Registered Global Securities, in exchange
for such Registered Global Securities.
The Company may at any time and in its sole discretion
determine that any Registered Global Securities of any series shall no longer be
maintained in global form. In such event the Company will execute, and the
Trustee, upon receipt of the Company's order for the authentication and delivery
of definitive Registered Securities of such series and tenor, will authenticate
and deliver, Registered Securities of such series and tenor in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
such Registered Global Securities, in exchange for such Registered Global
Securities.
Any time the Registered Securities of any series are not in
the form of Registered Global Securities pursuant to the preceding two
paragraphs, the Company agrees to supply the Trustee with a reasonable supply of
certificated Registered Securities without the legend required by Section 2.2
and the Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.3 with
respect to any Registered Global Security, the Depositary for such Registered
Global Security may surrender such Registered Global Security in exchange in
whole or in part for Registered Securities of the same series and tenor in
definitive registered form on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
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(i) to the Person specified by such Depositary new
Registered Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security
in a denomination equal to the difference, if any, between the
principal amount of the surrendered Registered Global Security and the
aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Registered Securities issued in exchange for a Registered
Global Security pursuant to this Section 2.7 shall be registered in such names
and in such authorized denominations as the Depositary for such Registered
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Company
or the Trustee. The Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of
any Securities to the contrary, none of the Company, the Trustee or any agent of
the Company or the Trustee shall be required to exchange any Unregistered
Security for a Registered Security if such exchange would result in adverse
Federal income tax consequences to the Company (such as, for example, the
inability of the Company to deduct from its income, as computed for Federal
income tax purposes, the interest payable on the Unregistered Securities) under
then applicable United States Federal income tax laws. The Trustee and any such
agent shall be entitled to rely on an Officers' Certificate or an Opinion of
Counsel in determining such result.
Neither the Registrar nor the Company shall be required (i) to
issue, authenticate, register the transfer of or exchange Securities of any
series for a period of 15 days before a selection of such Securities to be
redeemed or (ii) to register the transfer of or exchange any Security selected
for redemption in whole or in part.
Section 2.8 Replacement Securities. If a defaced or mutilated
Security of any series is surrendered to the Trustee or if a Holder claims that
its Security of any series has been lost, destroyed or wrongfully taken, the
Company shall, subject to the further provisions of this Section 2.8, issue and
the Trustee shall authenticate a replacement Security of such series and tenor
and principal amount bearing a number not contemporaneously outstanding. The
Company may charge such Holder for any tax or other governmental charge that may
be imposed as a result of or in connection with replacing a Security and for its
expenses and the expenses of the Trustee (including without limitation
attorneys' fees and expenses) in replacing a Security. In case any such
mutilated, defaced, lost, destroyed or wrongfully taken Security has become or
is about to become due and payable, the Company in its discretion may pay such
Security instead of issuing a new Security in replacement thereof. If required
by the Trustee or the Company, (i) an indemnity bond must be furnished that is
sufficient in the judgment of both the
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Trustee and the Company to protect the Company, the Trustee and any Agent from
any loss that any of them may suffer if a Security is replaced or paid as
provided in this Section 2.8 and (ii) in the case of a lost, destroyed or
wrongfully taken Security, evidence must be furnished to the satisfaction of
both the Trustee and the Company of the loss, destruction or wrongful taking of
such Security. Notwithstanding the foregoing, the Company and the Trustee shall
have no obligation to replace or pay a Security pursuant to this Section 2.8 if
either the Company or the Trustee has notice that such Security has been
acquired by a bona fide purchaser.
Every replacement Security is an additional obligation of the
Company and shall be entitled to the benefits of this Indenture.
To the extent permitted by law, the foregoing provisions of
this Section are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or wrongfully taken Securities.
Section 2.9 Outstanding Securities. Securities outstanding at
any time are all Securities that have been authenticated and delivered by the
Trustee except for those canceled by it, those delivered to it for cancellation
and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases
to be outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
If the Paying Agent (other than the Company or an affiliate of
the Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to be
redeemed or repurchased on that date, then on and after that date such
Securities cease to be outstanding and interest on them shall cease to accrue.
A Security does not cease to be outstanding because the
Company or one of its affiliates holds such Security, provided, however, that,
in determining whether the Holders of the requisite principal amount of the
outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
affiliate of the Company shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities as to which a Responsible Officer of the Trustee has
received written notice to be so owned shall be so disregarded. Any Securities
so owned that are pledged by the Company, or by any affiliate of the Company, as
security for loans or other obligations, otherwise than to another such
affiliate of the Company, shall be deemed to be outstanding, if the pledgee is
entitled pursuant to the terms of its pledge agreement and is free to exercise
in its or his discretion the right to vote such securities, uncontrolled by the
Company or by any such affiliate.
Section 2.10 Temporary Securities. Until definitive Securities
of any series are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities of such series. Temporary Securities of
any series shall be substantially in the form of definitive Securities of such
series but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the temporary Securities,
as
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evidenced by their execution of such temporary Securities. If temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After the
preparation of definitive Securities of any series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series and
tenor upon surrender of such temporary Securities at the office or agency of the
Company designated for such purpose pursuant to Section 4.2, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of such series and tenor and authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled to
the same benefits under this Indenture as definitive Securities of such series.
Section 2.11 Cancellation. The Company at any time may deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold.
The Registrar, any transfer agent and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee shall cancel and destroy all Securities surrendered for transfer,
exchange, payment or cancellation and shall deliver a certificate of destruction
to the Company. The Company may not issue new Securities to replace Securities
it has paid in full or delivered to the Trustee for cancellation.
Section 2.12 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in use), and
the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in
notices of redemption or exchange as a convenience to Holders and no
representation shall be made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption or
exchange.
Section 2.13 Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest plus (to the extent lawful) any interest payable on the
defaulted interest (as may be specified in the terms thereof, established
pursuant to Section 2.3) to the Persons who are Holders on a subsequent special
record date, which shall mean the 15th day next preceding the date fixed by the
Company for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before such special record date, the Company
shall mail to each Holder and to the Trustee a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
Section 2.14 Series May Include Tranches. A series of
Securities may include one or more tranches (each, a "tranche") of Securities,
including Securities issued in a Periodic Offering. The Securities of different
tranches may have one or more different terms, including authentication dates
and public offering prices, but all the Securities within each such tranche
shall have identical terms, including authentication date and public offering
price. Notwithstanding any other provision of this Indenture, with respect to
Sections 2.2 (other than the fourth paragraph thereof) through 2.4, 2.7, 2.8,
2.10, 3.1 through 3.5, 4.2, 6.1 through 6.14, 8.1 through 8.5 and 9.2, if any
series of Securities includes more than one tranche, all
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provisions of such sections applicable to any series of Securities shall be
deemed equally applicable to each tranche of any series of Securities in the
same manner as though originally designated a series unless otherwise provided
with respect to such series or tranche pursuant to Section 2.3. In particular,
and without limiting the scope of the next preceding sentence, any of the
provisions of such sections which provide for or permit action to be taken with
respect to a series of Securities shall also be deemed to provide for and permit
such action to be taken instead only with respect to Securities of one or more
tranches within that series (and such provisions shall be deemed satisfied
thereby), even if no comparable action is taken with respect to Securities in
the remaining tranches of that series.
ARTICLE 3
REDEMPTION
----------
Section 3.1 Applicability Of Article. The provisions of this
Article shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities of
a series except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
Section 3.2 Notice Of Redemption; Partial Redemptions. Notice
of redemption to the Holders of Registered Securities of any series to be
redeemed as a whole or in part at the option of the Company shall be given by
mailing notice of such redemption by first class mail postage prepaid, at least
30 days and not more than 60 days prior to the date fixed for redemption to such
Holders of Registered Securities of such series at their last addresses as they
shall appear upon the Securities Register. Notice of redemption to the Holders
of Unregistered Securities of any series to be redeemed as a whole or in part
who have filed their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act, shall be given by mailing notice of such
redemption, by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Company, the Trustee shall make such information available
to the Company for such purpose). Notice of redemption to all other Holders of
Unregistered Securities of any series to be redeemed as a whole or in part shall
be published in an Authorized Newspaper in The City of New York or with respect
to any Security the interest on which is based on the offered quotations in the
interbank Eurodollar market for dollar deposits in an Authorized Newspaper in
London, in each case, once in each of three successive calendar weeks, the first
publication to be not less than 30 days nor more than 60 days prior to the date
fixed for redemption. Any notice which is mailed or published in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives the notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify (i)
the principal amount of each Security of such series held by such Holder to be
redeemed, (ii) the CUSIP numbers of the Securities to be redeemed, (iii) the
date fixed for redemption, (iv) the redemption
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price, (v) the place or places of payment, (vi) that payment will be made upon
presentation and surrender of such Securities and, in the case of Securities
with coupons attached thereto, of all coupons appertaining thereto maturing
after the date fixed for redemption, (vii) that such redemption is pursuant to
the mandatory or optional sinking fund, or both, if such be the case, (viii)
that interest accrued to the date fixed for redemption will be paid as specified
in such notice and that on and after said date interest thereon or on the
portions thereof to be redeemed will cease to accrue. In case any Security of a
series is to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series and tenor in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the Company.
Not later than 10:00 a.m. New York City time on the redemption
date specified in the notice of redemption given as provided in this Section,
the Company will deposit with the Trustee or with one or more Paying Agents (or,
if the Company is acting as its own Paying Agent, set aside, segregate and hold
in trust as provided in Section 2.6) an amount of money in immediately available
funds sufficient to redeem on the redemption date all the Securities of such
series so called for redemption at the appropriate redemption price, together
with accrued interest to the date fixed for redemption. If less than all the
outstanding Securities of a series are to be redeemed, the Company will deliver
to the Trustee at least 15 days prior to the last date on which notice of
redemption may be given to Holders pursuant to the first paragraph of this
Section 3.2 (or such shorter period as shall be acceptable to the Trustee) an
Officers' Certificate (which need not contain the statements required by Section
10.4) stating the aggregate principal amount of such Securities to be redeemed.
In case of a redemption at the election of the Company prior to the expiration
of any restriction on such redemption, the Company shall deliver to the Trustee,
prior to the giving of any notice of redemption to Holders pursuant to this
Section, an Officers' Certificate stating that such redemption is not prohibited
by such restriction.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, pro rata, by lot or in such manner as it
shall deem appropriate and fair, Securities of such series to be redeemed in
whole or in part. Securities may be redeemed in part in multiples equal to the
minimum authorized denomination for Securities of such series or any multiple
thereof. The Trustee shall promptly notify the Company in writing of the
Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
Section 3.3 Payment Of Securities Called For Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice
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at the applicable redemption price, together with interest accrued to the date
fixed for redemption, and on and after such date (unless the Company shall
default in the payment of such Securities at the redemption price, together with
interest accrued to such date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue, and the unmatured
coupons, if any, appertaining thereto shall be void and, except as provided in
Sections 7.11 and 8.4, such Securities shall cease from and after the date fixed
for redemption to be entitled to any benefit under this Indenture, and the
Holders thereof shall have no right in respect of such Securities except the
right to receive the redemption price thereof and unpaid interest to the date
fixed for redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, together with all coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with coupons attached thereto, to the Holders of the
coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.4 and
2.13 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant coupons maturing after
the date fixed for redemption, the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee, if there be furnished to each of
them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Security of any series redeemed in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the Company,
a new Security or Securities of such series and tenor (with any unmatured
coupons attached), of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
Section 3.4 Exclusion Of Certain Securities From Eligibility
For Selection For Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Company and
delivered to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, not
pledged or hypothecated by either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
Section 3.5 Mandatory And Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of Securities of
any series is herein referred
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to as a "mandatory sinking fund payment," and any payment in excess of such
minimum amount provided for by the terms of the Securities of any series is
herein referred to as an "optional sinking fund payment." The date on which a
sinking fund payment is to be made is herein referred to as the "sinking fund
payment date."
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the Company may
at its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation pursuant
to Section 2.11, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Company
through any optional sinking fund payment. Securities so delivered or credited
shall be received or credited by the Trustee at the sinking fund redemption
price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, or such shorter period as shall be acceptable to
the Trustee, the Company will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be satisfied
by payment of cash and the portion to be satisfied by credit of specified
Securities of such series and the basis for such credit, (b) stating that none
of the specified Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and
are continuing and (d) stating whether or not the Company intends to exercise
its right to make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund payment that the
Company intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be delivered
to the Trustee in order for the Company to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.11 to the Trustee with such
Officers' Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officers' Certificate shall be irrevocable and upon its receipt
by the Trustee the Company shall become unconditionally obligated to make all
the cash payments or delivery of securities therein referred to, if any, on or
before the next succeeding sinking fund payment date. Failure of the Company, on
or before any such sixtieth day, to deliver such Officer's Certificate and
Securities specified in this paragraph, if any, shall not constitute a Default
but shall constitute, on and as of such date, the irrevocable election of the
Company (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof and
(ii) that the Company will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or a lesser sum if the Company shall so request with
respect to the Securities of any series), such cash shall be applied
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on the next succeeding sinking fund payment date to the redemption of Securities
of such series at the sinking fund redemption price thereof together with
accrued interest thereon to the date fixed for redemption. If such amount shall
be $50,000 (or such lesser sum) or less and the Company makes no such request
then it shall be carried over until a sum in excess of $50,000 (or such lesser
sum) is available. The Trustee shall select, in the manner provided in Section
3.2, for redemption on such sinking fund payment date a sufficient principal
amount of Securities of such series to absorb said cash, as nearly as may be,
and shall inform the Company of the serial numbers of the Securities of such
series (or portions thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers' Certificate delivered to the
Trustee at least 60 days prior to the sinking fund payment date as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Company or (b) an entity specifically identified in such Officers' Certificate
as directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company. The Trustee, in the name and at the
expense of the Company (or the Company, if it shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of such series to be
given in substantially the manner provided in Section 3.2 (and with the effect
provided in Section 3.3) for the redemption of Securities of such series in part
at the option of the Company. The amount of any sinking fund payments not so
applied or allocated to the redemption of Securities of such series shall be
added to the next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the Principal of, and
interest on, the Securities of such series at maturity.
Not later than 10:00 a.m. New York City time on each sinking
fund payment date, the Company shall pay to the Trustee in cash or shall
otherwise provide for the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice of redemption
of Securities of such series by operation of the sinking fund during the
continuance of a Default in payment of interest on such Securities or of any
Event of Default except that, where the mailing of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities, provided that it shall have received from the
Company a sum sufficient for such redemption. Except as aforesaid, any moneys in
the sinking fund for such series at the time when any such Default or Event of
Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such Default or Event of Default, be deemed to
have been collected under Article 6 and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in
Section 6.4 or the Default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
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ARTICLE 4
COVENANTS
---------
Section 4.1 Payment Of Securities. The Company shall pay the
Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities with
coupons attached (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only upon presentation and surrender
of the several coupons for such interest installments as are evidenced thereby
as they severally mature. The interest on any temporary Unregistered Securities
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be paid, as to the installments of interest evidenced by
coupons attached thereto, if any, only upon presentation and surrender thereof,
and, as to the other installments of interest, if any, only upon presentation of
such Unregistered Securities for notation thereon of the payment of such
interest. The interest on Registered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only
to the Holders thereof and at the option of the Company may be paid by mailing
checks for such interest payable to or upon the written order of such Holders at
their last addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the
Securities of any series to the contrary, if the Company and a Holder of any
Registered Security so agree, payments of interest on, and any portion of the
Principal of, such Holder's Registered Security (other than interest payable at
maturity or on any redemption or repayment date or the final payment of
Principal on such Security) shall be made by the Paying Agent, upon receipt from
the Company of immediately available funds by 11:00 A.M., New York City time (or
such other time as may be agreed to between the Company and the Paying Agent),
directly to the Holder of such Security (by Federal funds wire transfer or
otherwise) if the Holder has delivered written instructions to the Trustee 15
days prior to such payment date requesting that such payment will be so made and
designating the bank account to which such payments shall be so made and in the
case of payments of Principal surrenders the same to the Trustee in exchange for
a Security or Securities aggregating the same principal amount as the unredeemed
principal amount of the Securities surrendered. The Trustee shall be entitled to
rely on the last instruction delivered by the Holder pursuant to this Section
4.1 unless a new instruction is delivered 15 days prior to a payment date. The
Company will indemnify and hold each of the Trustee and any Paying Agent
harmless against any loss, liability or expense (including attorneys' fees)
resulting from any act or omission to act on the part of the Company or any such
Holder in connection with any such agreement or from making any payment in
accordance with any such agreement.
The Company shall pay interest on overdue Principal, and
interest on overdue installments of interest, to the extent lawful, at the rate
per annum specified in the Securities.
Section 4.2 Maintenance Of Office Or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company hereby initially designates the Corporate Trust Office
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of the Trustee, located in the Borough of Manhattan, The City of New York, as
such office or agency of the Company. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the address of the Trustee set forth in Section 10.2.
The Company will maintain one or more agencies in a city or
cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on
which the Securities of any series are listed) where the Unregistered
Securities, if any, of each series and coupons, if any, appertaining thereto may
be presented for payment. No payment on any Unregistered Security or coupon will
be made upon presentation of such Unregistered Security or coupon at an agency
of the Company within the United States nor will any payment be made by transfer
to an account in, or by mail to an address in, the United States unless,
pursuant to applicable United States laws and regulations then in effect, such
payment can be made without adverse tax consequences to the Company.
Notwithstanding the foregoing, if full payment in United States Dollars
("Dollars") at each agency maintained by the Company outside the United States
for payment on such Unregistered Securities or coupons appertaining thereto is
illegal or effectively precluded by exchange controls or other similar
restrictions, payments in Dollars of Unregistered Securities of any series and
coupons appertaining thereto which are payable in Dollars may be made at an
agency of the Company maintained in the Borough of Manhattan, The City of New
York.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
Section 4.3 Negative Pledge. (a) The Company will not, and
will not permit any Restricted Subsidiary to, create or incur any Lien on any
shares of stock, indebtedness or other obligations of a Restricted Subsidiary or
any Principal Property of the Company or a Restricted Subsidiary, whether such
shares of stock, indebtedness or other obligations of a Restricted Subsidiary or
Principal Property are owned at the date of this Indenture or hereafter
acquired, unless the Company secures or causes such Restricted Subsidiary to
secure the outstanding Securities equally and ratably with (or, at the Company's
option, prior to) all indebtedness secured by such Lien, so long as such
indebtedness shall be so secured; provided, however, that this covenant shall
not apply in the case of: (i) the creation of any Lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or any Principal Property
hereafter acquired (including acquisitions by way of merger or consolidation) by
the Company or a Restricted Subsidiary contemporaneously with such acquisition,
or within 180 days thereafter, to secure or provide for the payment or financing
of any part of the purchase price thereof, or the assumption of any Lien upon
any shares of stock, indebtedness or other obligations of a Subsidiary or any
Principal Property hereafter acquired existing at the time of such acquisition,
or the acquisition of any shares of stock, indebtedness or other obligations of
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a Subsidiary or any Principal Property subject to any Lien without the
assumption thereof, provided that every such Lien referred to in this clause (i)
shall attach only to the shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property so acquired and fixed improvements thereon;
(ii) any Lien on any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property existing at the date of this Indenture;
(iii) any Lien on any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property in favor of the Company or any Restricted
Subsidiary; (iv) any Lien on any Principal Property being constructed or
improved securing loans to finance such construction or improvements; (v) any
Lien on shares of stock, indebtedness or other obligations of a Subsidiary or
any Principal Property incurred in connection with the issuance of tax-exempt
governmental obligations (including, without limitation, industrial revenue
bonds and similar financings); (vi) any mechanics', materialmen's, carriers' or
other similar Liens arising in the ordinary course of business with respect to
obligations that are not yet due or that are being contested in good faith,
(vii) any Lien on any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property for taxes, assessments or governmental
charges or levies not yet delinquent, or already delinquent but the validity of
which is being contested in good faith, (viii) any Lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or any Principal Property
arising in connection with legal proceedings being contested in good faith,
including any judgment Lien so long as execution thereon is stayed, (ix) any
landlord's Lien on fixtures located on premises leased by the Company or a
Restricted Subsidiary in the ordinary course of business, and tenants' rights
under leases, easements and similar Liens not materially impairing the use or
value of the property involved, (x) any Lien arising by reason of deposits
necessary to qualify the Company or any Restricted Subsidiary to conduct
business, maintain self insurance, or obtain the benefit of, or comply with, any
law, (xi) Liens on current assets of the Company to secure loans to the Company
that mature within twelve months from the creation thereof and that are made in
the ordinary course of business, and (xii) any renewal of or substitution for
any Lien permitted by any of the preceding clauses (i) through (xi), provided,
in the case of a Lien permitted under clause (i), (ii) or (iv), the indebtedness
secured is not increased nor the Lien extended to any additional assets.
(b) Notwithstanding the provisions of paragraph (a) of this
Section, the Company or any Restricted Subsidiary may create or assume Liens in
addition to those permitted by paragraph (a) of this Section, and renew, extend
or replace such liens, provided that at the time of such creation, assumption,
renewal, extension or replacement, and after giving effect thereto, Exempted
Debt does not exceed 15% of Consolidated Net Tangible Assets.
Section 4.4 Certain Sale And Lease-Back Transactions. (a) The
Company will not, and will not permit any Restricted Subsidiary to, sell or
transfer, directly or indirectly, except to the Company or a Restricted
Subsidiary, any Principal Property as an entirety, or any substantial portion
thereof, with the intention of taking back a lease of such property, except a
lease for a period of three years or less at the end of which it is intended
that the use of such property by the lessee will be discontinued; provided that,
notwithstanding the foregoing, the Company or any Restricted Subsidiary may sell
any such Principal Property and lease it back for a longer period (i) if the
Company or such Restricted Subsidiary would be entitled, pursuant to the
provisions of Section 4.3(a), to create a Lien on the property to be leased
securing Funded Debt in an amount equal to the Attributable Debt with respect to
such sale and lease-back transaction without equally and ratably securing the
outstanding Securities or (ii) if (A) the
-26-
Company promptly informs the Trustee of such transaction and (B) the Company
causes an amount equal to the fair value (as determined by Board Resolution of
the Company) of such property to be applied (1) to the purchase of other
property that will constitute Principal Property having a fair value at least
equal to the fair value of the property sold, or (2) to the retirement, within
120 days after receipt of such proceeds, of Funded Debt incurred or assumed by
the Company or a Restricted Subsidiary (including the Securities); provided
further that, in lieu of applying all of or any part of such net proceeds to
such retirement, the Company may, within 75 days after such sale, deliver or
cause to be delivered to the applicable trustee for cancellation either
debentures or notes evidencing Funded Debt of the Company (which may include the
Securities) or of a Restricted Subsidiary previously authenticated and delivered
by the applicable trustee, and not theretofore tendered for sinking fund
purposes or called for a sinking fund or otherwise applied as a credit against
an obligation to redeem or retire such notes or debentures, and an Officers'
Certificate (which shall be delivered to the Trustee and which need not contain
the statements prescribed by Section 10.4) stating that the Company elects to
deliver or cause to be delivered such debentures or notes in lieu of retiring
Funded Debt as hereinabove provided. If the Company shall so deliver debentures
or notes to the applicable trustee and the Company shall duly deliver such
Officers' Certificate, the amount of cash that the Company shall be required to
apply to the retirement of Funded Debt under this Section 4.4(a) shall be
reduced by an amount equal to the aggregate of the then applicable optional
redemption prices (not including any optional sinking fund redemption prices) of
such debentures or notes, or, if there are no such redemption prices, the
principal amount of such debentures or notes; provided, that in the case of
debentures or notes that provide for an amount less than the principal amount
thereof to be due and payable upon a declaration of the maturity thereof, such
amount of cash shall be reduced by the amount of principal of such debentures or
notes that would be due and payable as of the date of such application upon a
declaration of acceleration of the maturity thereof pursuant to the terms of the
indenture pursuant to which such debentures or notes were issued.
(b) Notwithstanding the provisions of paragraph (a) of this
Section 4.4, the Company or any Restricted Subsidiary may enter into sale and
lease-back transactions in addition to those permitted by paragraph (a) of this
Section 4.4 without any obligation to retire any outstanding Securities or other
Funded Debt, provided that at the time of entering into such sale and lease-back
transactions and after giving effect thereto, Exempted Debt does not exceed 15%
of Consolidated Net Tangible Assets.
Section 4.5 Certificate To Trustee. The Company will furnish
to the Trustee annually, on or before a date not more than four months after the
end of its fiscal year (which, on the date hereof, is a calendar year), a brief
certificate (which need not contain the statements required by Section 10.4)
from its principal executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company with all conditions and covenants
under this Indenture (such compliance to be determined without regard to any
period of grace or requirement of notice provided under this Indenture) which
certificate shall comply with the requirements of the Trust Indenture Act.
Section 4.6 Reports By The Company. The Company covenants to
file with the Trustee, within 15 days after the Company is required to file the
same with the Commission, copies of the annual reports and of the information,
documents, and other reports which the
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Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act.
ARTICLE 5
SUCCESSOR CORPORATION
---------------------
Section 5.1 When Company May Merge, Etc. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (in one
transaction or a series of related transactions) to, any Person (other than a
consolidation with or merger with or into a Subsidiary or a sale, conveyance,
transfer, lease or other disposition to a Subsidiary) or permit any Person to
merge with or into the Company unless:
(a) either (i) the Company shall be the continuing Person or
(ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or that acquired or
leased such property and assets of the Company shall be a corporation
organized and validly existing under the laws of the United States of
America or any jurisdiction thereof and shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, all of
the obligations of the Company on all of the Securities and under this
Indenture and the Company shall have delivered to the Trustee an
Opinion of Counsel stating that such consolidation, merger or transfer
and such supplemental indenture complies with this provision and that
all conditions precedent provided for herein relating to such
transaction have been complied with and that such supplemental
indenture constitutes the legal, valid and binding obligation of the
Company or such successor enforceable against such entity in accordance
with its terms, subject to customary exceptions; and
(b) an Officers' Certificate to the effect that immediately
after giving effect to such transaction, no Default shall have occurred
and be continuing and an Opinion of Counsel as to the matters set forth
in Section 5.1(a) shall have been delivered to the Trustee.
Section 5.2 Successor Substituted. Upon any consolidation or
merger, or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.1, the successor Person formed by such consolidation or into which the
Company is merged or to which such sale, conveyance, transfer, lease or other
disposition is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein. In the event
of any such sale, conveyance, transfer or other disposition (other than by way
of lease) the Company or any successor Person that shall heretofore have become
such in the manner described in this Article shall be discharged from all
obligations and covenants under this Indenture and the Securities and may be
liquidated and dissolved.
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ARTICLE 6
DEFAULT AND REMEDIES
--------------------
Section 6.1 Events Of Default. An "Event of Default" shall
occur with respect to the Securities of any series if:
(a) the Company defaults in the payment of the Principal of
any Security of such series when the same becomes due and payable at
maturity, upon acceleration, redemption or mandatory repurchase,
including as a sinking fund installment, or otherwise;
(b) the Company defaults in the payment of interest on any
Security of such series when the same becomes due and payable, and such
default continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company in this Indenture with
respect to any Security of such series or in the Securities of such
series and such default or breach continues for a period of 30
consecutive days after written notice to the Company by the Trustee or
to the Company and the Trustee by the Holders of 25% or more in
aggregate principal amount of the Securities of all series affected
thereby;
(d) an involuntary case or other proceeding shall be commenced
against the Company or any Restricted Subsidiary with respect to it or
its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the Company or
any Restricted Subsidiary under the federal bankruptcy laws as now or
hereafter in effect;
(e) the Company or any Restricted Subsidiary (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an
order for relief in an involuntary case under any such law, (B)
consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any Restricted Subsidiary or for all or
substantially all of the property and assets of the Company or any
Restricted Subsidiary or (C) effects any general assignment for the
benefit of creditors; or
(f) any other Event of Default established pursuant to Section
2.3 with respect to the Securities of such series occurs.
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Section 6.2 Acceleration. (a) If an Event of Default described
in clauses (a) or (b) of Section 6.1 with respect to the Securities of any
series then outstanding occurs and is continuing, then, and in each and every
such case, except for any series of Securities the principal of which shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Securities of any such affected
series then outstanding hereunder (each such series treated as a separate class)
by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of any
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series established
pursuant to Section 2.3) of all Securities of such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
(b) If an Event of Default described in clauses (c) or (f) of
Section 6.1 with respect to the Securities of one or more but not all series
then outstanding, or with respect to the Securities of all series then
outstanding, occurs and is continuing, then, and in each and every such case,
except for any series of Securities the principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount (or, if the Securities of any such series are
Original Issue Discount Securities, the amount thereof accelerable under this
Section) of the Securities of all such affected series then outstanding
hereunder (treated as a single class) by notice in writing to the Company (and
to the Trustee if given by Securityholders), may declare the entire principal
(or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to Section 2.3) of all Securities of
all such affected series, and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
(c) If an Event of Default described in clause (d) or (e) of
Section 6.1 occurs and is continuing, then the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the principal
as may be specified in the terms thereof established pursuant to Section 2.3) of
all the Securities then outstanding and interest accrued thereon, if any, shall
be and become immediately due and payable, without any notice or other action by
any Holder or the Trustee, to the full extent permitted by applicable law.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof established pursuant to Section 2.3) of the
Securities of any series (or of all the Securities, as the case may be) shall
have been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Securities
of each such series (or of all the Securities, as the case may be) and the
principal of any and all Securities of each such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue
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installments of interest, at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of each such series to the date of such payment or deposit) and such
amount as shall be sufficient to cover all amounts owing the Trustee under
Section 7.7, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of Securities that shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as provided
herein, then, and in each and every such case, the Holders of a majority in
aggregate principal amount of all the then outstanding Securities of all such
series that have been accelerated (voting as a single class), by written notice
to the Company and to the Trustee, may waive all defaults with respect to all
such series (or with respect to all the Securities, as the case may be) and
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and annulled,
the principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as shall
be due and payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
Section 6.3 Other Remedies. If a payment default or an Event
of Default with respect to the Securities of any series occurs and is
continuing, the Trustee may pursue, in its own name or as trustee of an express
trust, any available remedy by proceeding at law or in equity to collect the
payment of principal of and interest on the Securities of such series or to
enforce the performance of any provision of the Securities of such series or
this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
Section 6.4 Waiver Of Past Defaults. Subject to Sections 6.2,
6.7 and 9.2, the Holders of at least a majority in principal amount (or, if the
Securities are Original Issue Discount Securities, such portion of the principal
as is then accelerable under Section 6.2) of the outstanding Securities of all
series affected (voting as a single class), by notice to the Trustee, may waive,
on behalf of the Holders of all the Securities of such series, an existing
Default or Event of Default with respect to the Securities of such series and
its consequences, except a Default in the payment of Principal of or interest on
any Security as specified in clause (a) or (b) of Section 6.1 or in respect of a
covenant or provision of this Indenture which cannot be modified or amended
without the consent of the Holder of each outstanding Security affected. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
with respect to the Securities of such series arising therefrom shall be deemed
to have been cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereto.
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Section 6.5 Control By Majority. Subject to Sections 7.1 and
7.2(v), the Holders of at least a majority in aggregate principal amount (or, if
any Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable under Section 6.2) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further that
the Trustee may take any other action it deems proper that is not inconsistent
with any directions received from Holders of Securities pursuant to this Section
6.5.
Section 6.6 Limitation On Suits. No Holder of any Security of
any series may institute any proceeding, judicial or otherwise, with respect to
this Indenture or the Securities of such series, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given to the Trustee
written notice of a continuing Event of Default with respect to the
Securities of such series;
(b) the Holders of at least 25% in aggregate principal
amount of outstanding Securities of all such series affected shall have
made written request to the Trustee to institute proceedings in respect
of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against any costs,
liabilities or expenses to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e) during such 60 day period, the Holders of a majority
in aggregate principal amount of the outstanding Securities of all such
affected series have not given the Trustee a direction that is
inconsistent with such written request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
Section 6.7 Rights Of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Security to receive payment of Principal of or interest, if any, on such
Holder's Security on or after the respective due dates expressed on such
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
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Section 6.8 Collection Suit By Trustee. If an Event of Default
with respect to the Securities of any series in payment of Principal or interest
specified in clause (a) or (b) of Section 6.1 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount (or such portion thereof as specified
in the terms established pursuant to Section 2.3 of Original Issue Discount
Securities) of Principal of, and accrued interest remaining unpaid on, together
with interest on overdue Principal of, and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest on, the
Securities of such series, in each case at the rate or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in such Securities, and
such further amount as shall be sufficient to cover all amounts owing the
Trustee under Section 7.7.
Section 6.9 Trustee May File Proofs Of Claim. In the case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for amounts due the Trustee under Section 7.7) and the Holders allowed in
any judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it
under Section 7.7. Nothing herein contained shall be deemed to empower the
Trustee to authorize or consent to, or accept or adopt on behalf of any Holder,
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Application Of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of Principal
or interest, upon presentation of the several Securities and coupons
appertaining to such Securities in respect of which moneys have been collected
and noting thereon the payment, or issuing Securities of such series and tenor
in reduced principal amounts in exchange for the presented Securities of such
series and tenor if only partially paid, or upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.7 applicable to the Securities of such series in respect of
which moneys have been collected;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the
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maturity of the installments of such interest, with interest (to the
extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, such payments to be made
ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for Principal
and interest, with interest upon the overdue Principal, and (to the
extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then to the payment
of such Principal and interest or Yield to Maturity, without preference
or priority of Principal over interest or Yield to Maturity, or of
interest or Yield to Maturity over Principal, or of any installment of
interest over any other installment of interest, or of any Security of
such series over any other Security of such series, ratably to the
aggregate of such Principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other person lawfully entitled thereto.
Section 6.11 Restoration Of Rights And Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then, and in each and every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall be restored
to their former positions hereunder and thereafter all rights and remedies of
the Company, Trustee and the Holders shall continue as though no such proceeding
had been instituted.
Section 6.12 Undertaking For Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, in either case in
respect to the Securities of any series, a court may require any party litigant
in such suit (other than the Trustee) to file an undertaking to pay the costs of
the suit, and the court may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant (other than the Trustee) in the suit
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section 6.12 does not apply to a suit by a Holder
pursuant to Section 6.7 or a suit by Holders of more than 10% in aggregate
principal amount of the outstanding Securities of such series.
Section 6.13 Rights And Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities in Section 2.8, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right
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and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 6.14 Delay Or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article 6 or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE 7
TRUSTEE
-------
Section 7.1 General. The duties and responsibilities of the
Trustee shall be as provided by the Trust Indenture Act and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, unless it receives indemnity satisfactory to it
against any loss, liability or expense. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Article 7.
Section 7.2 Certain Rights Of Trustee. Subject to Trust
Indenture Act Sections 315(a) through (d):
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
Officers' Certificate, Opinion of Counsel (or both), statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper person or persons. The Trustee need not
investigate any fact or matter stated in the document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(b) before the Trustee acts or refrains from acting, it
may require an Officers' Certificate and/or an Opinion of Counsel,
which shall conform to Section 10.4. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on
such certificate or opinion. Subject to Sections 7.1 and 7.2, whenever
in the administration of the trusts of this Indenture the Trustee shall
deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting 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
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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;
(c) the Trustee may act through its attorneys and agents
not regularly in its employ and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due
care by it hereunder;
(d) any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by an
Officers' Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any Board Resolution may be
evidenced to the Trustee by a copy thereof certified by the Secretary
or an Assistant Secretary of the Company;
(e) 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, unless such Holders
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities that might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be authorized
or within its rights or powers or for any action it takes or omits to
take in accordance with the direction of the Holders in accordance with
Section 6.5 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture;
(g) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon; and
(h) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of Default, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, Officers' Certificate,
Opinion of Counsel, Board Resolution, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine, during normal business hours and upon
prior written notice, books, records and premises of the Company,
personally or by agent or attorney.
Section 7.3 Individual Rights Of Trustee. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Company or its affiliates with the same rights
it would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to Trust Indenture Act
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Sections 310(b) and 311. For purposes of Trust Indenture Act Section 311(b)(4)
and (6), the following terms shall mean:
(a) "Cash Transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand; and
(b) "Self-Liquidating Paper" means any draft, ▇▇▇▇ of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and that is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, ▇▇▇▇ of exchange,
acceptance or obligation.
Section 7.4 Trustee's Disclaimer. The recitals contained
herein and in the Securities (except the Trustee's certificate of
authentication) shall be taken as statements of the Company and not of the
Trustee and the Trustee assumes no responsibility for the correctness of the
same. Neither the Trustee nor any of its agents (i) makes any representation as
to the validity or adequacy of this Indenture or the Securities and (ii) shall
be accountable for the Company's use or application of the proceeds from the
Securities.
Section 7.5 Notice Of Default. If any Default with respect to
the Securities of any series occurs and is continuing and if such Default is
known to the actual knowledge of a Responsible Officer with the Corporate Trust
Department of the Trustee, the Trustee shall give to each Holder of Securities
of such series notice of such Default within 90 days after it occurs (i) if any
Unregistered Securities of such series are then outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London and (ii) to all Holders of Securities of such series in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, unless such
Default shall have been cured or waived before the mailing or publication of
such notice; provided, however, that, except in the case of a Default in the
payment of the Principal of or interest on any Security, the Trustee shall be
protected in withholding such notice if the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
Section 7.6 Reports By Trustee To Holders. Within 60 days
after each May 15, beginning with May 15, 1997, the Trustee shall mail to each
Holder as and to the extent provided in Trust Indenture Act Section 313(c) a
brief report dated as of such May 15, if required by Trust Indenture Act Section
313(a).
Section 7.7 Compensation And Indemnity. The Company shall pay
to the Trustee such compensation as shall be agreed upon in writing from time to
time for its services. The compensation of the Trustee shall not be limited by
any law on compensation of a Trustee of an express trust. The Company agrees to
pay or reimburse the Trustee and each predecessor
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Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions
of this Indenture and the Securities or the issuance of the Securities or any
series thereof (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except to the extent any such expense, disbursement or advance
may arise from its negligence or bad faith. The Company shall indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against, any
loss, liability or expense arising out of or in connection with the acceptance
or administration of this Indenture and the Securities or the issuance of the
Securities or any series thereof or the trusts hereunder and the performance of
its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in the premises, except to the
extent such loss, liability or expense is due to the negligence or bad faith of
the Trustee or such predecessor Trustee. The Trustee shall notify the Company
promptly of any claim asserted against the Trustee for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel; provided that the Company will not
be required to pay such fees and expenses if it assumes the Trustee's defense
and there is no conflict of interest between the Company and the Trustee in
connection with such defense. The Company need not pay for any settlement made
without its written consent. The Company need not reimburse any expense or
indemnify against any loss or liability to the extent incurred by the Trustee
through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section
7.7, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee, in its capacity as Trustee, except
money or property held in trust to pay Principal of, and interest on particular
Securities.
The obligations of the Company under this Section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture or the rejection or
termination of this Indenture under bankruptcy law. Such additional indebtedness
shall be a senior claim to that of the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
benefit of the Holders of particular Securities or coupons, and the Securities
are hereby subordinated to such senior claim. If the Trustee renders services
and incurs expenses following an Event of Default under Section 6.1(d) or
Section 6.1(e), the parties hereto and the Holders by their acceptance of the
Securities hereby agree that such expenses are intended to constitute expenses
of administration under any bankruptcy law.
Section 7.8 Replacement Of Trustee. A resignation or removal
of the Trustee as Trustee with respect to the Securities of any series and
appointment of a successor Trustee as Trustee with respect to the Securities of
any series shall become effective only upon the successor Trustee's acceptance
of appointment as provided in this Section 7.8.
The Trustee may resign as Trustee with respect to the
Securities of any series at any time by so notifying the Company in writing. The
Holders of a majority in aggregate
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principal amount of the outstanding Securities of any series may remove the
Trustee as Trustee with respect to the Securities of such series by so notifying
the Trustee and the Company in writing and may appoint a successor Trustee with
respect thereto with the consent of the Company. The Company may remove the
Trustee as Trustee with respect to the Securities of any series if: (a) the
Trustee is no longer eligible under Section 7.10 of this Indenture; (b) the
Trustee is adjudged a bankrupt or insolvent; (c) a receiver or other public
officer takes charge of the Trustee or its property; or (d) the Trustee becomes
incapable of acting.
If the Trustee resigns or is removed as Trustee with respect
to the Securities of any series, or if a vacancy exists in the office of Trustee
with respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year after
the successor Trustee takes office, the Holders of a majority in aggregate
principal amount of the outstanding Securities of such series may appoint a
successor Trustee in respect of such Securities to replace the successor Trustee
appointed by the Company. If the successor Trustee with respect to the
Securities of any series does not deliver its written acceptance required by the
next succeeding paragraph of this Section 7.8 within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of a majority in aggregate principal amount of the outstanding Securities of
such series may petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any
series shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after the delivery of such written
acceptance, subject to the lien provided for in Section 7.7, (a) the retiring
Trustee shall transfer all property held by it as Trustee in respect of the
Securities of such series to the successor Trustee, (b) the resignation or
removal of the retiring Trustee in respect of the Securities of such series
shall become effective and (c) the successor Trustee shall have all the rights,
powers and duties of the Trustee in respect of the Securities of such series
under this Indenture. A successor Trustee shall mail notice of its succession to
each Holder of Securities of such series.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in the preceding paragraph.
The Company shall give notice of any resignation and any
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee in respect of the Securities of such series
to all Holders of Securities of such series. Each notice shall include the name
of the successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.8, the Company's obligations
under Section 7.7 shall continue for the benefit of the retiring Trustee.
Section 7.9 Successor Trustee By Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee
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corporation or national banking association without any further act shall be the
successor Trustee with the same effect as if the successor Trustee had been
named as the Trustee herein.
Section 7.10 Eligibility. This Indenture shall always have a
Trustee who satisfies the requirements of Trust Indenture Act Section 310(a).
The Trustee shall have a combined capital and surplus of at least $10,000,000 as
set forth in its most recent published annual report of condition, if any. The
Trustee shall comply with Trust Indenture Act Section 310(b). If at any time the
Trustee with respect to the Securities of any series shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
within the manner and with the effect hereinafter specified in this Article.
Section 7.11 Money Held In Trust. The Trustee shall not be
liable for interest on any money received by it except as the Trustee may agree
in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law and except for
money held in trust under Article 8 of this Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
----------------------
Section 8.1 Defeasance Within One Year Of Payment. Except as
otherwise provided in this Section 8.1, the Company may terminate its
obligations under the Securities of any series and this Indenture with respect
to Securities of such series if:
(a) all Securities of such series previously
authenticated and delivered (other than destroyed, lost or wrongfully
taken Securities of such series that have been replaced or Securities
of such series that are paid pursuant to Section 4.1 or Securities of
such series for whose payment money or securities have theretofore been
held in trust and thereafter repaid to the Company, as provided in
Section 8.5) have been delivered to the Trustee for cancellation and
the Company has paid all sums payable by it hereunder; or
(b) (i) the Securities of such series mature within one
year or all of them are to be called for redemption within one year
under arrangements satisfactory to the Trustee for giving the notice of
redemption, (ii) the Company irrevocably deposits in trust with the
Trustee, as trust funds solely for the benefit of the Holders of such
Securities for that purpose, money or U.S. Government Obligations or a
combination thereof sufficient (unless such funds consist solely of
money, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any reinvestment,
to pay Principal of and interest on the Securities of such series to
maturity or redemption, as the case may be, and to pay all other sums
payable by it hereunder, and (iii) the Company delivers to the Trustee
an Officers' Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent provided for herein relating to
the satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with.
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With respect to the foregoing clause (a), only the Company's
obligations under Sections 7.7 and 8.5 in respect of the Securities of such
series shall survive. With respect to the foregoing clause (b), only the
Company's obligations in Sections 2.2 through 2.12, 4.2, 7.7, 7.8 and 8.5 in
respect of the Securities of such series shall survive until such Securities of
such series are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.7 and 8.5 in respect of the Securities of such series
shall survive. After any such irrevocable deposit, the Trustee shall acknowledge
in writing the discharge of the Company's obligations under the Securities of
such series and this Indenture with respect to the Securities of such series
except for those surviving obligations specified above.
Section 8.2 Defeasance. Except as provided below, the Company
will be deemed to have paid and will be discharged from any and all obligations
in respect of the Securities of any series and the provisions of this Indenture
will no longer be in effect with respect to the Securities of such series (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same); provided that the following conditions shall have been
satisfied:
(a) the Company has irrevocably deposited in trust with
the Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the Principal of and interest
on the Securities of such series, money or U.S. Government Obligations
or a combination thereof sufficient (unless such funds consist solely
of money, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee) without consideration of any reinvestment and
after payment of all federal, state and local taxes or other charges
and assessments in respect thereof payable by the Trustee, to pay and
discharge the Principal of and accrued interest on the outstanding
Securities of such series to maturity or earlier redemption
(irrevocable provided for under arrangements satisfactory to the
Trustee), as the case may be;
(b) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party
or by which it is bound;
(c) no Default with respect to the Securities of such
series shall have occurred and be continuing on the date of such
deposit;
(d) the Company shall have delivered to the Trustee (1)
either (x) a ruling directed to the Trustee received from the United
States Internal Revenue Service to the effect that the Holders of the
Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of the Company's exercise of
its option under this Section 8.2 and will be subject to federal income
tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not
occurred, (y) an Opinion of Counsel to the same effect as the ruling
described in clause (x) above and based upon a change in law, or (z) an
instrument, in form reasonably satisfactory to the Trustee, wherein the
Company, notwithstanding the payment and discharge, pursuant to this
Section 8.2, of its indebtedness in respect of Securities of any
series, or any portion of the principal amount
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thereof, shall assume the obligation (which shall be absolute and
unconditional) to irrevocably deposit with the Trustee such additional
sums of money, if any, or additional U.S. Government Obligations
(meeting the requirements of this Article 8), if any, or any
combination thereof, at such time or times, as shall be necessary,
together with the money and/or U.S. Government Obligations theretofore
so deposited, to pay when due the Principal of and premium, if any, and
interest due and to become due on such Securities or portions thereof;
provided, however, that such instrument may state that the obligation
of the Company to make additional deposits as aforesaid shall be
subject to the delivery to the Company by the Trustee of a notice
asserting the deficiency accompanied by an opinion of an independent
public accountant of nationally recognized standing, selected by the
Trustee, showing the calculation thereof, and (2) an Opinion of Counsel
to the effect that the Holders of the Securities of such series have a
valid security interest in the trust funds subject to no prior liens
under the UCC; and
(e) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to the
defeasance contemplated by this Section 8.2 of the Securities of such
series have been complied with.
The Company's obligations in Sections 2.2 through 2.12, 4.2,
7.7, 7.8 and 8.5 with respect to the Securities of such series shall survive
until such Securities are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.7 and 8.5 shall survive.
Section 8.3 Covenant Defeasance. The Company may omit to
comply with any term, provision or condition set forth in Sections 4.3 or 4.4
(or any other specific covenant relating to such series provided for in a Board
Resolution or supplemental indenture, or Officer's Certificate pursuant to such
Board Resolution or such supplemental indenture, pursuant to Section 2.3 that
may by its terms be defeased pursuant to this Section 8.3), and such omission
shall be deemed not to be an Event of Default under clauses (c) or (f) of
Section 6.1, with respect to the outstanding Securities of a series if:
(a) the Company has irrevocably deposited in trust with
the Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the Principal of and
interest, if any, on the Securities of such series, money or U.S.
Government Obligations or a combination thereof in an amount sufficient
(unless such funds consist solely of money, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee) without
consideration of any reinvestment and after payment of all federal,
state and local taxes or other charges and assessments in respect
thereof payable by the Trustee, to pay and discharge the Principal of
and accrued interest on the outstanding Securities of such series to
maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party
or by which it is bound;
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(c) no Default with respect to the Securities of such
series shall have occurred and be continuing on the date of such
deposit;
(d) the Company has delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the Securities of such
series have a valid security interest in the trust funds subject to no
prior liens under the UCC; and
(e) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to the
covenant defeasance contemplated by this Section 8.3 of the Securities
of such series have been complied with.
Section 8.4 Application Of Trust Money. Subject to Section
8.5, the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.1, 8.2 or 8.3, as the case
may be, in respect of the Securities of any series and shall apply the deposited
money and the proceeds from deposited U.S. Government Obligations in accordance
with the Securities of such series and this Indenture to the payment of
Principal of and interest on the Securities of such series; but such money need
not be segregated from other funds except to the extent required by law. The
Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 8.1, 8.2 or 8.3, as the case may be, or the Principal and
interest received in respect thereof, other than any such tax, fee or other
charge that by law is for the account of the Holders.
Section 8.5 Repayment To Company. Subject to Sections 7.7,
8.1, 8.2 and 8.3, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any money held by
them at any time and not required to make payments hereunder and thereupon shall
be relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
them and required to make payments hereunder under this Indenture that remains
unclaimed for two years; provided that the Trustee or such Paying Agent before
being required to make any payment may cause to be published at the expense of
the Company once in an Authorized Newspaper in The City of New York or with
respect to any Security the interest on which is based on the offered quotations
in the interbank Eurodollar market for dollar deposits in an Authorized
Newspaper in London or mail to each Holder entitled to such money at such
Holder's address (as set forth in the Security Register) notice that such money
remains unclaimed and that after a date specified therein (which shall be at
least 30 days from the date of such publication or mailing) any unclaimed
balance of such money then remaining will be repaid to the Company. After
payment to the Company, Holders entitled to such money must look to the Company
for payment as general creditors unless an applicable law designates another
Person, and all liability of the Trustee and such Paying Agent with respect to
such money shall cease.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
-----------------------------------
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Section 9.1 Without Consent Of Holders. The Company and the
Trustee may amend or supplement this Indenture or the Securities of any series
without notice to or the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency in
this Indenture; provided that such amendments or supplements shall not
materially and adversely affect the interests of the Holders;
(b) to comply with Article 5;
(c) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act;
(d) to evidence and provide for the acceptance of
appointment hereunder with respect to the Securities of any or all
series by a successor Trustee;
(e) to establish the form or forms or terms of
Securities of any series or of the coupons appertaining to such
Securities as permitted by Section 2.3;
(f) to provide for uncertificated or Unregistered
Securities and to make all appropriate changes for such purpose;
(g) to change or eliminate any provisions of this
Indenture with respect to all or any series of the Securities not then
outstanding (and, if such change is applicable to fewer than all such
series of the Securities, specifying the series to which such change is
applicable), and to specify the rights and remedies of the Trustee and
the holders of such Securities in connection therewith; and
(h) to make any change that does not materially and
adversely affect the rights of any Holder.
Section 9.2 With Consent Of Holders. Subject to Sections 6.4
and 6.7, without prior notice to any Holders, the Company and the Trustee may
amend this Indenture and the Securities of any series with the written consent
of the Holders of a majority in aggregate principal amount of the outstanding
Securities of all series affected by such supplemental indenture (all such
series voting as one class), and the Holders of a majority in aggregate
principal amount of the outstanding Securities of all series affected thereby
(all such series voting as one class) by written notice to the Trustee may waive
future compliance by the Company with any provision of this Indenture or the
Securities of such series.
Notwithstanding the provisions of this Section 9.2, without
the consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.4, may not:
(a) extend the stated maturity of the Principal of, or
any sinking fund obligation or any installment of interest on, such
Holder's Security, or reduce the Principal amount thereof or the rate
of interest thereon (including any amount in respect
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of original issue discount), or any premium payable with respect
thereto, or adversely affect the rights of such Holder under any
mandatory redemption or repurchase provision or any right of redemption
or repurchase at the option of such Holder, or reduce the amount of the
Principal of an Original Issue Discount Security that would be due and
payable upon an acceleration of the maturity thereof pursuant to
Section 6.2 or the amount thereof provable in bankruptcy, or change any
place of payment where, or the currency in which, any Security or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
due date therefor;
(b) reduce the percentage in principal amount of
outstanding Securities of the relevant series the consent of whose
Holders is required for any such supplemental indenture, for any waiver
of compliance with certain provisions of this Indenture or certain
Defaults and their consequences provided for in this Indenture;
(c) waive a Default in the payment of Principal of or
interest on any Security of such Holder; or
(d) modify any of the provisions of this Section 9.2,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series with respect to such
covenant or provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or of the coupons
appertaining to such Securities.
It shall not be necessary for the consent of any Holder under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.2 becomes effective, the Company or, at the Company's request, the Trustee
shall give to the Holders affected thereby a notice briefly describing the
amendment, supplement or waiver. The Company or, at the Company's request, the
Trustee will mail supplemental indentures to Holders upon request. Any failure
of the Company to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture or
waiver.
Section 9.3 Revocation And Effect Of Consent. Until an
amendment or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the Security of the
consenting Holder, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to its
Security or
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portion of its Security. Such revocation shall be effective only if the Trustee
receives the notice of revocation before the date the amendment, supplement or
waiver becomes effective.
The Company may, but shall not be obligated to, fix a record
date (which may be not less than 10 nor more than 60 days prior to the
solicitation of consents) for the purpose of determining the Holders of the
Securities of any series affected entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the
immediately preceding paragraph, those Persons who were such Holders at such
record date (or their duly designated proxies) and only those Persons shall be
entitled to consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such Persons continue to be such
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective
with respect to the Securities of any series affected thereby, it shall bind
every Holder of such Securities theretofore or thereafter authenticated and
delivered hereunder unless it is of the type described in any of clauses (a)
through (d) of Section 9.2. In case of an amendment or waiver of the type
described in clauses (a) through (d) of Section 9.2, the amendment or waiver
shall bind each such Holder who has consented to it and every subsequent Holder
of a Security that evidences the same indebtedness as the Security of the
consenting Holder.
Section 9.4 Notation On Or Exchange Of Securities. If an
amendment, supplement or waiver changes the terms of any Security, the Trustee
may require the Holder thereof to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security about the changed terms and return
it to the Holder and the Trustee may place an appropriate notation on any
Security of such series thereafter authenticated. Alternatively, if the Company
or the Trustee so determines, the Company in exchange for the Security shall
issue and the Trustee shall authenticate a new Security of the same series and
tenor that reflects the changed terms.
Section 9.5 Trustee To Sign Amendments, Etc. The Trustee shall
be entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of an amendment, supplement or waiver
authorized pursuant to this Article 9 is authorized or permitted by this
Indenture, stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to customary exceptions. Subject
to the preceding sentence, the Trustee shall sign such amendment, supplement or
waiver if the same does not adversely affect the rights of the Trustee. The
Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver that affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
Section 9.6 Conformity With Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article 9 shall conform to the
requirements of the Trust Indenture Act as then in effect.
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ARTICLE 10
MISCELLANEOUS
-------------
Section 10.1 Trust Indenture Act Of 1939. This Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act. If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by operation of Section 318(c) of the Trust Indenture
Act, the imposed duties shall control.
Section 10.2 Notices. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person when received or
(b) if mailed by first class mail 5 days after mailing, or (c) as between the
Company and the Trustee if sent by facsimile transmission, when transmission is
confirmed, in each case addressed as follows:
If to the Company:
Arrow Electronics, Inc.
▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
If to the Trustee:
Bank of Montreal Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Telecopy: (212) __________
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to
Holders of any Unregistered Securities, by publication at least once in an
Authorized Newspaper in The City of New York, or with respect to any Security
the interest on which is based on the offered quotations in the interbank
Eurodollar market for dollar deposits at least once in an Authorized Newspaper
in London, and by mailing to the Holders thereof who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture
Act at such addresses as were so furnished to the Trustee (and in the case of an
notice given by the Company, the Trustee shall make such information available
to the Company for such purpose) and to Holders of Registered Securities by
mailing to such Holders at their addresses as they shall appear on the Security
Register. Notice mailed shall be sufficiently given if so mailed within the time
prescribed. Copies of any such communication or notice to a Holder shall also be
mailed to the Trustee and each Agent at the same time.
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Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
Except as otherwise provided in this Indenture, if a notice or communication is
mailed in the manner provided in this Section 10.2, it is duly given, whether or
not the addressee receives it.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 10.3 Certificate And Opinion As To Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been complied
with; and
(b) an Opinion of Counsel stating that, in the opinion
of such counsel, all such conditions precedent, if any, have been
complied with.
Section 10.4 Statements Required In Certificate Or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each person signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(c) a statement that, in the opinion of each such
person, he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of
each such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials.
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In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate, statement or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise o reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters or information that is in the possession of the
Company, upon the certificate, statement or opinion of or representations by an
officer or officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be base as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 10.5 Evidence Of Ownership. The Company, the Trustee
and any agent of the Company or the Trustee may deem and treat the Holder of any
Unregistered Security and the Holder of any coupon as the absolute owner of such
Unregistered Security or coupon (whether or not such Unregistered Security or
coupon shall be overdue) for the purpose of receiving payment thereof or on
account thereof and for all other purposes, and neither the Company, the
Trustee, nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. The fact of the holding by any Holder of an Unregistered
Security, and the identifying number of such Security and the date of his
holding the same, may be proved by the production of such Security or by a
certificate executed by any trust company, bank, banker or recognized securities
dealer wherever situated satisfactory to the Trustee, if such certificate shall
be deemed by the Trustee to be satisfactory. Each such certificate shall be
dated and shall state that on the date thereof a Security bearing a specified
identifying number was deposited with or exhibited to such trust company, bank,
banker or recognized securities dealer by the person named in such certificate.
Any such certificate may be issued in respect of one or more Unregistered
Securities specified therein. The holding by the person named in any such
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certificate of any Unregistered Securities specified therein shall be presumed
to continue for a period of one year from the date of such certificate unless at
the time of any determination of such holding (1) another certificate bearing a
later date issued in respect of the same Securities shall be produced or (2) the
Security specified in such certificate shall be produced by some other Person,
or (3) the Security specified in such certificate shall have ceased to be
outstanding. Subject to Article 7, the fact and date of the execution of any
such instrument and the amount and numbers of Securities held by the Person so
executing such instrument may also be proven in accordance with such reasonable
rules and regulations as may be prescribed by the Trustee or in any other manner
which the Trustee may deem sufficient.
The Company, the Trustee and any agent of the Company or the
Trustee may deem and treat the person in whose name any Registered Security
shall be registered upon the Security Register for such series as the absolute
owner of such Registered Security (whether or not such Registered Security shall
be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the Principal
of and, subject to the provisions of this Indenture, interest on such Registered
Security and for all other purposes; and neither the Company nor the Trustee nor
any agent of the Company or the Trustee shall be affected by any notice to the
contrary.
Section 10.6 Rules By Trustee, Paying Agent Or Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
Section 10.7 Payment Date Other Than A Business Day. If any
date for payment of Principal or interest on any Security shall not be a
Business Day at any place of payment, then payment of Principal of or interest
on such Security, as the case may be, need not be made on such date, but may be
made on the next succeeding Business Day at any place of payment with the same
force and effect as if made on such date and no interest shall accrue in respect
of such payment for the period from and after such date.
Section 10.8 Governing Law. The rights and duties of the
parties under this Indenture shall, pursuant to New York General Obligations Law
Section 5-1401, be governed by the law of the State of New York.
Section 10.9 No Adverse Interpretation Of Other Agreements.
This Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture or
agreement may not be used to interpret this Indenture.
Section 10.10 Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All agreements of
the Trustee in this Indenture shall bind its successors.
Section 10.11 Duplicate Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
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Section 10.12 Separability. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 10.13 Table Of Contents, Headings, Etc. The Table of
Contents and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms and provisions
hereof.
Section 10.14 Incorporators, Shareholders, Officers And
Directors Of Company Exempt From Individual Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture or any
indenture supplemental hereto, or in any Security or any coupons appertaining
thereto, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future shareholder,
officer, director or employee, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
coupons appertaining thereto by the Holders thereof and as part of the
consideration for the issue of the Securities and the coupons appertaining
thereto.
Section 10.15 Judgment Currency. The Company agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the Principal of or interest on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
day on which final unappealable judgment is entered, unless such day is not a
Business Day, then, to the extent permitted by applicable law, the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the Business Day preceding the day on
which final unappealable judgment is entered and (b) its obligations under this
Indenture to make payments in the Required Currency (i) shall not be discharged
or satisfied by any tender, or any recovery pursuant to any Judgment (whether or
not entered in accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
(SEAL) ARROW ELECTRONICS, INC.,
ATTEST: as the Company
________________________ By:___________________________
Name: Name:
Title: Title:
(SEAL) BANK OF MONTREAL TRUST COMPANY,
ATTEST: as the Trustee
________________________ By:___________________________
Name: Name:
Title: Title:
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STATE OF__________________ )
)
COUNTY OF_________________ )
BEFORE ME, the undersigned authority, on this _____ day of
___________, 1997, personally appeared _____________________, of Arrow
Electronics, Inc., a New York corporation, known to me (or proved to me by
introduction upon the oath of a person known to me) to be the person and officer
whose name is subscribed to the foregoing instrument, and acknowledged to me
that he/she executed the same as the act of such corporation for the purposes
and consideration herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _______ DAY OF
________________, 1997.
(SEAL)
___________________________________
NOTARY PUBLIC, STATE OF ___________
Print Name:
Commission Expires:
STATE OF__________________ )
)
COUNTY OF_________________ )
BEFORE ME, the undersigned authority, on this ______ day of
____________, 1997, personally appeared _______________, of Bank of Montreal
Trust Company, known to me (or proved to me by introduction upon the oath of a
person known to me) to be the person and officer whose name is subscribed to the
foregoing instrument, and acknowledged to me that he/she executed the same as
the act of such trust for the purposes and consideration herein expressed and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ DAY OF
_______________, 1997.
(SEAL)
___________________________________
NOTARY PUBLIC, STATE OF ___________
Print Name:
Commission Expires: