Exhibit 4.7
__________________________________________________
MOTOROLA, INC.
TO
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
AS TRUSTEE
__________________________________________________
INDENTURE
DATED AS OF FEBRUARY ___, 1999
__________________________________________________
SUBORDINATED DEBT SECURITIES
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER PROVISIONSOF GENERAL APPLICATION 1
SECTION 1.1 Definitions 1
SECTION 1.2 Compliance Certificates and Opinions 12
SECTION 1.3 Form of Documents Delivered to Trustee 13
SECTION 1.4 Acts of Holders; Record Dates 13
SECTION 1.5 Notices, Etc., to Trustee and Company 15
SECTION 1.6 Notice to Holders; Waiver 15
SECTION 1.7 Conflict with Trust Indenture Act 17
SECTION 1.8 Effect of Headings and Table of Contents 17
SECTION 1.9 Successors and Assigns 17
SECTION 1.10 Separability Clause 17
SECTION 1.11 Benefits of Indenture 17
SECTION 1.12 Governing Law 17
SECTION 1.13 Legal Holidays 17
SECTION 1.14 Counterparts 17
ARTICLE II
SECURITY FORMS 18
SECTION 2.1 Forms Generally 18
SECTION 2.2 Form of Trustee's Certificate of Authentication 18
SECTION 2.3 Securities Issuable in Global Form 18
ARTICLE III
THE SECURITIES 19
SECTION 3.1 Amount Unlimited; Issuable in Series 19
SECTION 3.2 Denominations 23
SECTION 3.3 Execution, Authentication, Delivery and Dating 23
SECTION 3.4 Temporary Securities 26
SECTION 3.5 Registration, Registration of Transfer and Exchange 28
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities 32
SECTION 3.7 Payment of Interest; Interest Rights Preserved; Optional
Interest Reset 33
SECTION 3.8 Optional Extension of Maturity 36
SECTION 3.9 Persons Deemed Owners 37
SECTION 3.10 Cancellation ▇▇
-▇-
▇▇▇▇▇▇▇ ▇.▇▇ ▇▇▇▇▇▇▇▇▇▇▇ of Interest 38
SECTION 3.12 Currency and Manner of Payments in Respect of Securities 38
SECTION 3.13 Appointment and Resignation of Successor Exchange Rate
Agent 41
SECTION 3.14 CUSIP Numbers 42
SECTION 3.15 Certification by a Person Entitled to Delivery of Bearer
Security 42
SECTION 3.16 Judgments 42
ARTICLE IV
SATISFACTION AND DISCHARGE 43
SECTION 4.1 Satisfaction and Discharge of Indenture 43
SECTION 4.2 Application of Trust Money 44
ARTICLE V
REMEDIES 45
SECTION 5.1 Events of Default 45
SECTION 5.2 Acceleration 46
SECTION 5.3 Other Remedies 46
SECTION 5.4 Waiver of Past Defaults 47
SECTION 5.5 Control by Majority 47
SECTION 5.6 Limitation on Suits 47
SECTION 5.7 Rights of Holders to Receive Payment 48
SECTION 5.8 Collection Suit by Trustee 48
SECTION 5.9 Trustee May File Proofs of Claim 48
SECTION 5.10 Priorities. 49
SECTION 5.11 Undertaking for Costs 49
SECTION 5.12 Waiver of Stay, Extension or Usury Laws 50
ARTICLE VI
THE TRUSTEE 50
SECTION 6.1 Certain Duties and Responsibilities 50
SECTION 6.2 Notice of Defaults 50
SECTION 6.3 Certain Rights of Trustee 51
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities 52
SECTION 6.5 May Hold Securities 53
SECTION 6.6 Money Held in Trust 53
SECTION 6.7 Compensation and Reimbursement 53
SECTION 6.8 Disqualification; Conflicting Interests 54
SECTION 6.9 Corporate Trustee Required; Eligibility 54
-ii-
SECTION 6.10 Resignation and Removal; Appointment of Successor 54
SECTION 6.11 Acceptance of Appointment by Successor 56
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business 57
SECTION 6.13 Preferential Collection of Claims Against Company 57
SECTION 6.14 Appointment of Authenticating Agent 57
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY 59
SECTION 7.1 Company to Furnish Trustee Names And Addresses of
Holders. 59
SECTION 7.2 Preservation of Information; Communications to Holders 59
SECTION 7.3 Reports by Trustee 60
SECTION 7.4 Reports by Company 60
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE 60
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms 60
SECTION 8.2 Successor Person Substituted 61
ARTICLE IX
SUPPLEMENTAL INDENTURES SECTION 62
SECTION 9.1 Supplemental Indentures Without Consent of Holders 62
SECTION 9.2 Supplemental Indentures With Consent of Holders 63
SECTION 9.3 Execution of Supplemental Indentures 64
SECTION 9.4 Effect of Supplemental Indentures. 64
SECTION 9.5 Conformity With Trust Indenture Act 64
SECTION 9.6 Reference in Securities to Supplemental Indentures 65
SECTION 9.7 Notice of Supplemental Indenture 65
ARTICLE X
COVENANTS 65
SECTION 10.1 Payment of Principal, Premium And Interest 65
SECTION 10.2 Maintenance of Office or Agency 65
SECTION 10.3 Money For Securities Payments to Be Held in Trust 66
SECTION 10.4 Purchase of Securities by Company or Subsidiary 67
SECTION 10.5 Payment of Additional Amounts 68
SECTION 10.6 Statement by Officers as to Default 68
SECTION 10.7 Existence 69
-iii-
SECTION 10.8 [INTENTIONALLY OMITTED]. 69
SECTION 10.9 [INTENTIONALLY OMITTED]. 69
SECTION 10.10 [INTENTIONALLY OMITTED]. 69
SECTION 10.11 [INTENTIONALLY OMITTED]. 69
SECTION 10.12 [INTENTIONALLY OMITTED]. 69
ARTICLE XI
REDEMPTION OF SECURITIES 70
SECTION 11.1 Applicability of Article 70
SECTION 11.2 Election to Redeem; Notice to Trustee 70
SECTION 11.3 Selection by Trustee of Securities to Be Redeemed 70
SECTION 11.4 Notice of Redemption 71
SECTION 11.5 Deposit of Redemption Price 72
SECTION 11.6 Securities Payable on Redemption Date 72
SECTION 11.7 Securities Redeemed in Part 72
ARTICLE XII
SINKING FUNDS 73
SECTION 12.1 Applicability of Article 73
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities 73
SECTION 12.3 Redemption of Securities for Sinking Fund 73
ARTICLE XIII
REPAYMENT AT THE OPTION OF HOLDERS 74
SECTION 13.1 Applicability of Article 74
SECTION 13.2 Repayment of Securities. 74
SECTION 13.3 Exercise of Option; Notice 74
SECTION 13.4 Election of Repayment by Remarketing Entities 75
SECTION 13.5 Securities Payable on the Repayment Date 75
ARTICLE XIV
MEETINGS OF HOLDERS OF SECURITIES 76
SECTION 14.1 Purposes for Which Meetings May Be Called 76
SECTION 14.2 Call, Notice and Place of Meetings 76
SECTION 14.3 Persons Entitled to Vote at Meetings 76
SECTION 14.4 Quorum; Action 77
SECTION 14.5 Determination of Voting Rights; Conduct and Adjournment
of Meetings 78
SECTION 14.6 Counting Votes and Recording Action of Meetings 78
-iv-
ARTICLE XV
DEFEASANCE AND COVENANT DEFEASANCE 79
SECTION 15.1 Company's Option to Effect Defeasance or Covenant
Defeasance 79
SECTION 15.2 Defeasance and Discharge 79
SECTION 15.3 Covenant Defeasance 80
SECTION 15.4 Conditions to Defeasance or Covenant Defeasance 80
SECTION 15.5 Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions 82
SECTION 15.6 Reinstatement 83
ARTICLE XVI
SUBORDINATION OF SECURITIES 83
SECTION 16.1 Securities Subordinate to Senior Indebtedness 83
SECTION 16.2 Payment Over of Proceeds Upon Dissolution, Etc. 83
SECTION 16.3 Acceleration of Securities 85
SECTION 16.4 Default on Senior Indebtedness 85
SECTION 16.5 Payment Permitted If No Default 86
SECTION 16.6 Subrogation to Rights of Holders of Senior Indebtedness 86
SECTION 16.7 Provisions Solely to Define Relative Rights 87
SECTION 16.8 Trustee to Effectuate Subordination 87
SECTION 16.9 No Waiver of Subordination Provisions 87
SECTION 16.10 Notice to Trustee 88
SECTION 16.11 Reliance on Judicial Order or Certificate of Liquidating
Agent 89
SECTION 16.12 Trustee Not Fiduciary for Holders of Senior Indebtedness 89
SECTION 16.13 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights 89
SECTION 16.14 Article Sixteen Applicable to Paying Agents 89
-v-
THIS INDENTURE, dated as of February ___, 1999, is between Motorola, Inc.,
a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇ Trust and Savings Bank,
an Illinois banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
debentures, notes or other evidences of indebtedness (herein called the
"Securities") to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Now, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, or by
Commission rule or regulation under the TIA, either directly or by
reference therein, as in force at the date as of which this instrument was
executed, except as provided in Section 9.5, have the meanings assigned to
them therein; the terms "cash transaction" and "self-liquidating paper," as
used in TIA Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the Trust Indenture Act; and the
following TIA terms used in this Indenture have the following meanings:
"Indenture Securities" means the Securities;
"Indenture Security Holder" means the Holder;
"Indenture to be Qualified" means this Indenture;
"Indenture Trustee" or "Institutional Trustee" means the Trustee; and
"Obligor" on the indenture securities means the Company;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States at the date of such
computation;
(4) the words "Article" and "Section" refer to an Article and Section,
respectively, of this Indenture; and
(5) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three, are defined in that
Article.
"Act," when used with respect to any Holder, has the meaning specified in
Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, partnerships or other
ownership interests, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Attributable Debt" shall mean, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining term thereof, discounted from the
respective due dates thereof to such date at the rate per annum borne by the
Securities compounded annually. The net amount of rent required to be paid under
any such lease for any such period shall be the aggregate amount of the rent
payable by the lessee with respect to such period after excluding amounts
required to be paid on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges. In the case of any lease which is
terminable by the lessee upon the payment of a penalty, such net amount shall
also include the amount of such penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date upon which it
may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
-2-
"Authorized Newspaper" means a newspaper in an official language of the
country of publication or in the English language customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security established pursuant to Section 2.1
which is payable to bearer including, without limitation, unless the context
otherwise indicates, a Security in global bearer form.
"Board of Directors" or "Board" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Securities and the forms and terms
thereof), such action may be taken by any committee of the Board or the Company
or any officer or employee of the Company authorized to take such action by a
Board Resolution.
"Business Day," when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or in the City of Chicago,
Illinois, are authorized or obligated by law or executive order to close.
"Capital Stock" for any corporation means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interest in (however designated) stock issued by that corporation.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres
S.A., or its successor.
"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.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
-3-
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chief Executive Officer, its President
or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" shall mean the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities (excluding any constituting
Funded Debt by reason of their being renewable or extendible), and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all as set forth on the most recent balance
sheet of the Company and its consolidated subsidiaries and computed in
accordance with generally accepted accounting principles.
"Conversion Date" has the meaning specified in Section 3.12(d).
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the Euro both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the Euro for the purposes for which it was
established.
"Corporate Trust Office" means the principal office of the Trustee in the
City of Chicago, Illinois or in New York, New York at which at any particular
time its corporate trust business shall be administered.
"corporation" means a corporation, association, company, joint stock
company or business trust.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Currency" means any currency or currencies, composite currency or currency
unit or currency units, including, without limitation, the Euro, issued by the
government of one or more countries or by any reorganized confederation or
association of such governments.
"Covenant Defeasance" has the meaning specified in Section 15.3.
"Debt" means with respect to any person at any date, without duplication,
(i) all obligations of such person for borrowed money, (ii) all obligations of
such person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all Debt of others secured by a lien on any asset of such person, whether
or not such Debt is assumed by such person, (iv) all obligations of such person
pursuant to capitalized leases, and (v) all Debt of others for the payment of
which such person is responsible or liable as obligor or guarantor.
-4-
"Defaulted Interest" has the meaning specified in Section 3.7.
"Defeasance" has the meaning specified in Section 15.2.
"Defeasible Series" has the meaning specified in Section 15.1.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 3.1 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Securities of that
series.
"Designated Currency" has the meaning specified in Section 3.12.
"Domestic Subsidiary" shall mean a Subsidiary of the Company except a
Subsidiary of the Company (a) which neither transacts any substantial portion of
its business nor regularly maintains any substantial portion of its fixed assets
within the States of the United States, or (b) which is engaged primarily in
financing the operations of the Company or its Subsidiaries, or both, outside
the States of the United States.
"Dollar" or "$" means a dollar or other equivalent within the coin or
currency of the United States as at the time of payment is legal tender for the
payment of public and private debts.
"Euro" means the Common Currency of the European monetary union as defined
and revised from time to time by the Council of the European Communities.
"Euroclear" means ▇▇▇▇▇▇ Guarantee Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor thereto, and the rules and regulations
promulgated thereunder.
"Exchange Date" shall have the meaning specified in Section 3.4.
-5-
"Exchange Rate Agent" shall have the meaning specified as contemplated in
Section 3.1.
"Exchange Rate Officer's Certificate" means a certificate setting forth the
applicable Market Exchange Rate or applicable bid quotation and the amounts
payable in Dollars and Foreign Currencies in respect of the principal of (and
premium, if any) and interest on Securities denominated in Euro and other
composite Currency or Foreign Currency, and signed by the Chief Executive
Officer, the President, any Vice President, the Treasurer or any Assistant
Treasurer of the Company or the Exchange Rate Agent appointed pursuant to
Section 3.1, and delivered to the Trustee.
"Foreign Currency" means any Currency, including, without limitation, the
Euro issued by the government of one or more countries other than the United
States or by any recognized confederation or association of such governments.
"Funded Debt" shall mean all indebtedness for money borrowed having a
maturity of more than 12 months from the date of the most recent balance sheet
of the Company and its consolidated subsidiaries or having a maturity of less
than 12 months but by its terms being renewable or extendible beyond 12 months
from the date of such balance sheet at the option of the borrower.
"Global Security" means a Security evidencing all or part of a series of
Securities, authenticated and delivered to the Depositary for such series or its
nominee, and registered in the name of such Depositary or nominee in accordance
with Section 3.3.
"Holder" means, with respect to a Registered Security, a Person in whose
name a Registered Security is registered in the Security Register and, with
respect to a Bearer Security, the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument, and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 3.1.
"Indexed Security" means a Security as to which all or certain interest
payments and/or the principal amount payable at Maturity are determined by
reference to prices, changes in prices, or differences between prices, or
securities or Currencies as specified pursuant to Section 3.1 hereof.
"Interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
-6-
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security, and, when used
with respect to a Security which provides for the payment of additional amounts
pursuant to Section 10.5, includes such additional amounts.
"Market Exchange Rate" means, unless otherwise specified with respect to
any Securities pursuant to Section 3.1, (i) for any conversion involving a
Currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant Currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 3.1 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in either New York City, London or any other principal
market for Dollars or such purchased Foreign Currency, in each case determined
by the Exchange Rate Agent. Unless otherwise specified with respect to any
Securities pursuant to Section 3.1, in the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i), (ii) and (iii),
the Exchange Rate Agent shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York as of the
most recent available date, or quotations from one or more major banks in New
York City, London or other principal market for such currency or currency unit
in question, or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any currency or currency unit by reason of
foreign exchange regulations or otherwise, the market to be used in respect of
such currency or currency unit shall be that upon which a nonresident issuer of
securities designated in such currency or currency unit would purchase such
currency or currency unit in order to make payments in respect of such
securities.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
5.1(4).
"Officers' Certificate" means a certificate signed by the Chief Executive
Officer, the President or any elected Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or any Assistant Secretary, of the Company,
and delivered to the Trustee, which shall comply with Section 1.2 to the extent
applicable.
-7-
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be reasonably satisfactory to the Trustee, which
shall comply with Section 1.2 to the extent applicable.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities in accordance with Section 4.1; provided that,
if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 15.2; and
(4) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
Provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (A) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, (B) the principal amount of any Security denominated in
a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of
-8-
the principal amount (or in the case of an Original Issue Discount Security or
Indexed Security, the Dollar equivalent as of such date of original issuance of
the amount determined as provided in clause (A) above or (C) below respectively)
of such Security, (C) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 3.1, and (D) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (or any premium) or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Sections 3.1 and 10.2.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any single parcel of real estate, manufacturing
plant or warehouse owned or leased by the Company or any Domestic Subsidiary
which is located within the United States and the gross book value (without
deduction of any depreciation reserves) of which on the date as of which the
determination is being made exceeds 1% of Consolidated Net Tangible Assets,
other than any such manufacturing plant or warehouse or portion thereof (a)
which is a pollution control or other facility financed by obligations issued by
a state or local government unit and described in Sections 141(a), 142(a)(5),
142(a)(6) or 144(a) of the Internal Revenue Code, or any successor provision
thereof, or (b) which, in the opinion of the Board of Directors, is not of
material importance to the total business conducted by the Company and its
subsidiaries as an entirety.
-9-
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form of Registered
Securities established pursuant to Section 2.1 which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 3.1.
"Remarketing Entity," when used with respect to Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity, means any person designated by the Company to purchase any such
Securities.
"Repayment Date," when used with respect to any Security to be repaid upon
exercise of option for repayment by the Holder, means the date fixed for such
repayment.
"Repayment Price," when used with respect to any Security to be repaid upon
exercise of option for repayment by the Holder, means the price at which it is
to be repaid pursuant to this Indenture.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.5.
"Senior Indebtedness" means all Debt of the Company, whether now existing
or hereafter created, but excluding trade accounts payable arising in the
ordinary course of business, and includes all series of the Company's
outstanding Liquid Yield Option/TM/ Notes. Without limiting the generality of
the foregoing, "Senior Indebtedness" shall include the principal of, premium, if
any, and interest on: (i) all Debt of the Company outstanding, created, incurred
or assumed, which is for money borrowed, or evidenced by a note or similar
instrument given in connection with acquisition of any business properties or
assets, including securities; (ii) any Debt of any other Person of the kinds
described in the preceding clause (i) for the payment of which the Company is
responsible or liable as guarantor or otherwise; and (iii) amendments, renewals,
extensions and refundings of any such Debt, unless in any instrument or
instruments evidencing or securing such Debt or pursuant to which the same is
outstanding, or in any such amendment, renewal, extension or refunding, it is
expressly provided that such Debt is not senior in right of payment to the
subordinated debentures, notes or other evidences of indebtedness, as
applicable. "Senior Indebtedness" does not include any
-10-
Debt of the Company to any of its Subsidiaries. The Senior Indebtedness shall
continue to be Senior Indebtedness and entitled to the benefits of the
subordination provisions irrespective of any amendment, modification or waiver
of any term of the Senior Indebtedness or extension or renewal of the Senior
Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" shall mean a corporation a majority of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, the term "voting stock" means stock having
ordinary voting power for the election of directors irrespective of whether or
not stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean each Trustee with respect to Securities of that series.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 and
the rules and regulations promulgated thereunder as in force at the date as of
which this instrument was executed, except as provided in Section 9.5; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" or "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended and the rules and
regulations promulgated thereunder.
"United States" means the United States of America (including the District
of Columbia) and its possessions and territories and other areas subject to its
jurisdiction (including the Commonwealth of Puerto Rico).
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
-11-
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) 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.
"Valuation Date" has the meaning specified in Section 3.12(c).
"Vice President," when used with respect to the Company or the Trustee,
means any elected vice president, whether or not designated by a word or words
added before the title "vice president".
SECTION 1.2 Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture (other than delivery of any Security to the Trustee for
authentication pursuant to Section 3.3 which shall be accompanied with a Company
Order), 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 have been complied with. In the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, however, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, 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
-12-
(4) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee. 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 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, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
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 1.4 Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If Securities of a series are issuable in whole or in part
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may, alternatively, be embodied in and evidenced by the record of
Holders of Securities voting in favor thereof, either in person or by proxies
duly appointed in writing, at any meeting of Holders of Securities duly called
and held in accordance with the provisions of Article Fourteen, or a combination
of such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are received by the Trustee and, where it is hereby expressly required,
delivered to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Trustee and the Company, if made in the manner
provided
-13-
in this Section. The record of any meeting of Holders of Securities shall be
proved in the manner provided in Section 14.6.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(b) The ownership of Registered Securities shall be proved by the Security
Register.
(c) The ownership, principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities in the amount and with the
serial numbers therein described; or such facts may be proved by the certificate
or affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, (2) such Bearer Security is produced to
the Trustee by some other person, (3) such Bearer Security is surrendered in
exchange for a Registered Security or (4) such Bearer Security is no longer
Outstanding. The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent, any Authenticating Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(e) If the Company shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, in or pursuant to a Board Resolution, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or
-14-
other Act, but the Company shall have no obligation to do so. Notwithstanding
TIA Section 316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is completed. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than eleven months after the record date.
Without limiting the foregoing, a Holder entitled hereunder to give or take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any different part of such principal amount.
SECTION 1.5 Notices, Etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Indenture
Trust Division, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.6 Notice to Holders; Waiver. Where this Indenture provides for
notice of any event to Holders of Registered Securities by the Company or the
Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, if any, and not earlier than
the earliest date, if any, prescribed for the giving of such notice. In any case
where notice to Holders of Registered Securities is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. Any notice mailed to a
Holder in the manner herein prescribed shall be
-15-
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders of Registered Securities as shall be
made with the approval of the Trustee shall constitute a sufficient notification
to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 3.1, where this Indenture provides
for notice to Holders of Bearer Securities of any event, such notice shall be
sufficiently given if published in an Authorized Newspaper in the City of New
York and, if the Securities of such series are then listed on the International
Stock Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, in London, and, if the Securities of such series are
then listed on the Luxembourg Stock Exchange and such stock exchange shall so
require, in Luxembourg and, if the Securities of such series are than listed on
any other stock exchange outside the United States and such stock exchange shall
so require, in any other required city outside the United States or, if not
practicable, in Europe on a Business Day at least twice, the first such
publication to be not later than the latest date and not earlier than the
earliest date prescribed for the giving of such notice, and in such other city
or cities as may be specified in such Securities on a Business Day, such
publication to be not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. Any such notice shall
be deemed to have been given on the date of such publication or, if published
more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized Newspaper
or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
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.
-16-
SECTION 1.7 Conflict with Trust Indenture Act. This Indenture is subject
to and shall be governed by the provisions of the TIA that are required to be a
part of this Indenture. If any provision hereof limits, qualifies or conflicts
with a provision of the TIA that is required under such Act to be a part of and
govern this Indenture, the TIA provision shall control. If any provision of this
Indenture modifies or excludes any provision of the TIA that may be so modified
or excluded, the latter provision shall be deemed to apply to this Indenture as
so modified or to be excluded, as the case may be.
SECTION 1.8 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.10 Separability Clause. In case any provision in this Indenture
or in the Securities or coupons shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11 Benefits of Indenture. Nothing in this Indenture or in the
Securities or coupons, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, any Paying Agent, Security
Registrar and Authenticating Agent and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.12 Governing Law. This Indenture and the Securities and coupons
shall be governed by and construed in accordance with the law of the State of
New York, but without regard to principles of conflicts of law.
SECTION 1.13 Legal Holidays. In any case where any Interest Payment Date,
Redemption Date, Repayment Date, Stated Maturity or Maturity of any Security
shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provision of this Indenture or of the Securities or coupons (other than a
provision of the Securities of any series which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, Repayment Date, Stated Maturity or Maturity, provided that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date, Repayment Date, Stated Maturity or Maturity, as the case may
be.
SECTION 1.14 Counterparts. This Indenture may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
Indenture.
-17-
ARTTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally. The Registered Securities, if any, and the
Bearer Securities and related coupons, if any, of each series shall be in
substantially the form (including temporary or permanent global form) as shall
be established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or market or as may, consistently
herewith, be determined by the officers executing such Securities or coupons, as
evidenced by their execution of the Securities or coupons. If the form of
Securities of any series or coupons is established by action taken pursuant to a
Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and delivery of such
Securities or coupons.
Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities other than Securities in temporary or permanent global form shall
have coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on each Security shall be in
substantially the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
_________________________________
as Trustee
By ______________________________
[AUTHORIZED OFFICER]
SECTION 2.3 Securities Issuable in Global Form. If Securities of or
within a series are issuable in global form, as specified as contemplated by
Section 3.1, then, notwithstanding clause (9) of Section 3.1 and the provisions
of Section 3.2, any such Global Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that
-18-
it shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Global Security to
reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 3.3
or 3.4. Subject to the provisions of Section 3.3 and, if applicable, Section
3.4, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 3.3 or 3.4 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement, delivery or redelivery
of a Security in global form shall be in writing but need not comply with
Section 1.2 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.3(g) shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 1.2 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.3(g).
Notwithstanding the provisions of Section 3.7, unless otherwise specified
as contemplated by Section 3.1, payment of principal of (and premium, if any)
and interest, if any, on any permanent Global Security shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 3.9 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent Global Security (i) in the case of a
permanent Global Security in registered form, the Holder of such permanent
Global Security in registered form, or (ii) in the case of a permanent Global
Security in bearer form, Euroclear or CEDEL.
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities shall rank equally and pari passu and may be issued in one
or more series. There shall be established in or pursuant to a Board Resolution,
and, subject to Section 3.3 set forth, or determined in the manner provided, in
an Officers' Certificate, or established in one or more
-19-
indentures supplemental hereto, prior to the issuance of Securities of any
series, any or all of the following, as applicable (each of which (except for
the matters in clauses (1) and (2)), if so provided, may be determined by the
Company with respect to unissued Securities, of the series when issued from time
to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6, 11.7 or 13.3 and except for
any Securities which, pursuant to Section 3.3, are deemed never to have
been authenticated and delivered hereunder);
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of the Securities (and
premium, if any), of the series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, or the method or methods by which such rate or rates shall be
determined, if any, the date or dates from which such interest shall
accrue, or the method by which such date or dates will be determined or
extended, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any interest payable on any
Registered Security on any Interest Payment Date, the circumstances, if
any, in which the Company may defer interest payments and the manner of
computing interest if other than as specified in Section 3.11;
(5) the place or places where, subject to the provisions of Section
10.2, the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Securities of the
series may be surrendered or exchanged and notices and demands to or upon
the Company in respect of the Securities of the series and this Indenture
may be served and where notices to Holders pursuant to Section 1.6 will be
published;
(6) the period or periods within which or the date or dates on which,
the price or prices at which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, the period or periods within
which, and the other terms and conditions upon which Securities of
-20-
the series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(8) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Securities of the series are
to be issuable with or without coupons or both, the terms upon which Bearer
Securities of the series may be exchanged for Registered Securities of the
series (and vice versa) if other than as provided in Sections 3.4 and 3.5,
and, in the case of Bearer Securities (or any temporary Global Security
representing the same), the date as of which such Bearer Securities shall
be dated if other than the date of original issuance of the first Security
of such series of like tenor and term to be issued;
(9) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities and, in such case,
the Depositary for such Global Security or Securities, whether such global
form shall be permanent or temporary and, if so, whether beneficial owners
of interests in any such permanent Global Security may exchange such
interests for Securities of such series in certificated form and of like
tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided in
this Article Three, and, if applicable, the Exchange Date;
(10) whether, and under what conditions, additional amounts will be
payable to Holders of Securities of the series pursuant to Section 10.5;
(11) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which any Bearer
Securities of such series shall be issuable, if other than the
denominations of $5,000 and any integral multiple thereof;
(12) if other than Dollars, the Currency or Currencies of denomination
of the Securities of any series, which may be in any Foreign Currency or
any composite Currency or index, including but not limited to the Euro,
and, if any such Currency of denomination is a composite Currency other
than the Euro, the agency or organization, if any, responsible for
overseeing such composite Currency;
(13) that either or both of Section 15.2 or 15.3 shall apply to the
Securities of the series;
(14) if other than Dollars, the Currency, Currencies or currency units
in which payment of the principal of (and any premium) and interest on any
Securities of the series shall be payable and the Currency or Currencies,
if any, in which payment of the principal of (and premium, if any) or the
interest on Registered Securities at the election of each of the Holders
thereof, may also be payable and the periods within which and the terms and
conditions upon which such election is to be made and the time and manner
of determining
-21-
the exchange rate between Currency or Currencies in which such Securities
are denominated or stated to be paid and the Currency or Currencies in
which such Securities are to be paid, in each case in accordance with, in
addition to or in lieu of Section 3.12;
(15) if the amount of payments of principal of (or premium, if any) or
interest on any Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
(16) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if other than upon presentation and surrender of
the coupons appertaining thereto as they severally mature, and the extent
to which, or the manner in which, any interest payable on a temporary
Global Security on an Interest Payment Date will be paid if other than in
the manner provided in Section 3.4;
(17) the designation of the initial Exchange Rate Agent, if any;
(18) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the
terms and conditions upon which such Securities will be so convertible or
exchangeable;
(19) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
5.2; and
(20) if other than the Trustee, the identity of the Security Registrar
and/or Paying Agent;
(21) the terms of any pledge of property made to secure the
obligations of the Company under the Securities of any series and the
circumstances, if any, under which such pledge may be released and the
limitations, if any, on recourse against the Company on Securities of such
series; and
(22) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1(5)).
Except as set forth below, all Securities of any one series and the coupons
appertaining to Bearer Securities of such series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution and (subject to Section 3.3) set forth, or
determined in the manner provided, in such Officers' Certificate or in any
indenture supplemental hereto.
-22-
Securities of any particular series may be issued at various times, with
different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption or Repayment Dates and may be
denominated in different Currencies or payable in different Currencies. If any
of the terms of the Securities of any series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.2 Denominations. Securities of each series shall be issuable
in such form and denominations as shall be specified in the form of Security for
such series approved or established pursuant to Section 2.1 or in the Officers'
Certificate delivered pursuant to Section 3.1. In the absence of any
specification with respect to the Securities of any series, the Registered
Securities of such series, if any (other than Registered Securities in global
form, which may be in any denomination), shall be issuable in denominations of
$1,000 and any integral multiples thereof and the Bearer Securities of such
series, if any (other than Bearer Securities in global form, which may be in any
denomination), shall be issuable in denominations of $5,000 and any integral
multiple thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
(a) The Securities shall be executed on behalf of the Company by its Chief
Executive Officer, its President, its Treasurer or one of its Vice Presidents,
under its corporate seal reproduced thereon and shall be attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile. Coupons shall bear the
facsimile signature of an authorized officer of the Company.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
coupons or did not hold such offices at the date of such Securities or coupons.
(b) At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, executed by
the Company, to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and, except as otherwise
provided in this Article Three, the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 3.1, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified
-23-
with respect to any series of Securities pursuant to Section 3.1, dated no
earlier than 15 days prior to the earlier of the date on which such Bearer
Security is delivered and the date on which any temporary Security first becomes
exchangeable for such Bearer Security in accordance with the terms of such
temporary Security and this Indenture. If any Security shall be represented by a
permanent Global Bearer Security, then, for purposes of this Section 3.3 and
Section 3.4, the notation of a beneficial owner's interest therein upon original
issuance of such Security or upon exchange of a portion of a temporary Global
Security shall be deemed to be delivery in connection with its original issuance
of such beneficial owner's interest in such permanent Global Security. Except as
permitted by Section 3.6, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have
been detached and canceled. If all the Securities of any series are not to be
issued at one time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities and
determining the terms of particular Securities of such series, such as interest
rate, maturity date, date of issuance and date from which interest shall accrue.
If the form or terms of the Securities of the series have been established in or
pursuant to one or more Board Resolutions as permitted by Sections 2.1 and 3.1,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(A) if the form of such Securities and coupons, if any, has been
established by or pursuant to a Board Resolution as permitted by Section
2.1, that such form has been established in conformity with the provisions
of this Indenture;
(B) if the terms of such Securities and coupons, if any, have been
established by or pursuant to a Board Resolution as permitted by Section
3.1, that such terms have been established in conformity with the
provisions of this Indenture; and
(C) that such Securities and coupons, if any, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles and except further as enforcement thereof
may be limited by (1) requirements that a claim with respect to any
Securities denominated other than in Dollars (or a Foreign Currency or
Currency unit judgment in respect of such claim) be converted into Dollars
at a rate of exchange prevailing on a date determined pursuant to
applicable law or (2) governmental authority to limit, delay or prohibit
the making of payments in Foreign Currencies or Currency units or payments
outside the United States.
(c) If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company
-24-
shall execute and the Trustee shall, in accordance with this Section 3.3,
Section 3.4, if and to the extent applicable, and the Company Order with respect
to such series, authenticate and deliver one or more Global Securities in
permanent or temporary form that (i) shall represent and shall be denominated in
an aggregate principal amount of the Outstanding Securities of such series to be
represented by one or more Global Securities, (ii) shall be registered in the
name of the Depositary for such Global Security or Securities or the nominee of
such Depositary and (iii) shall be delivered by the Trustee to such Depositary
or pursuant to such Depositary's instructions.
(d) If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
(e) Notwithstanding the provisions of Section 3.1 and this Section 3.3, if
all Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 3.1 or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
(f) Each Registered Security shall be dated the date of its authentication.
Each Bearer Security shall be dated the date contemplated by Section 3.1.
(g) No Security or attached coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless executed and
issued by the Company and there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. Except as permitted by Section 3.6, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and canceled. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 3.10, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
(h) Each Depositary designated pursuant to Section 3.1 for a Global
Security must, at the time of its designation 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.
(i) The Securities may contain such notations, legends or endorsements
required by law, stock exchange rule or usage.
-25-
SECTION 3.4 Temporary Securities.
(a) Pending the preparation of definitive Securities of any series, the
Company may execute, and upon receipt of a Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with Section 3.4(b) or as otherwise provided in or
pursuant to a Board Resolution), or as otherwise provided in or pursuant to a
Board Resolution, if temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series (accompanied by any non-
matured coupons appertaining thereto), the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations; provided,
however, that unless otherwise contemplated or specified with respect to any
series of Securities pursuant to Section 3.1, no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and provided
further that a Bearer Security shall be delivered in exchange for a Bearer
Security only in compliance with the applicable conditions set forth in Sections
3.3, 3.4 and 3.5. Until so exchanged, the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution, this
Section 3.4(b) shall govern the exchange of temporary Securities issued in
global form. If temporary Securities of any series are issued in global form,
any such temporary Global Security shall, unless otherwise provided therein, be
delivered to the London office of a Depositary, for the benefit of Euroclear and
CEDEL, for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Company. On or after
the Exchange Date, such temporary Global Security shall be surrendered by the
Depositary to the Trustee, as the
-26-
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge, and upon receipt of a Company
Order, the Trustee shall authenticate and deliver, in exchange for each portion
of such temporary Global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor as the portion of such temporary Global Security to be exchanged. The
definitive Securities to be delivered in exchange for any such temporary Global
Security shall be in bearer form, registered form, permanent global bearer form
or permanent global registered form, or any combination thereof, as specified as
contemplated by Section 3.1, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof; provided, however, that, unless
otherwise specified in such temporary Global Security, upon such presentation by
the Depositary, such temporary Global Security is accompanied by a certificate
dated the Exchange Date or a subsequent date and signed by Euroclear as to the
portion of such temporary Global Security held for its account then to be
exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by CEDEL as to the portion of such temporary Global Security held for its
account then to be exchanged, each in the form, set forth in Exhibit A-2 to this
Indenture or in such other form as may be established pursuant to Section 3.1;
and provided further that definitive Bearer Securities shall be delivered in
exchange for a portion of a temporary Global Security only in compliance with
the requirements of Section 3.3, 3.4 and Section 3.5, as applicable.
Unless otherwise specified in such temporary Global Security, the interest
of a beneficial owner of Securities of a series in a temporary Global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear or
CEDEL, as the case may be, to request such exchange on his behalf and delivers
to Euroclear or CEDEL, as the case may be, a certificate in the form set forth
in Exhibit A-1 to this Indenture (or in such other form as may be established
pursuant to Section 3.1), dated no earlier than 15 days prior to the Exchange
Date, copies of which certificate shall be available from the officers of
Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary Global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive
Securities in bearer form to be delivered in exchange for any portion of a
temporary Global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 3.1, interest payable on a temporary Global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euroclear and CEDEL on such
Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
3.1), for credit without
-27-
further interest on or after such Interest Payment Date to the respective
accounts of Persons who are the beneficial owners of such temporary Global
Security on such Interest Payment Date and who have each delivered to Euroclear
or CEDEL, as the case may be, a certificate dated no earlier than 15 days prior
to the Interest Payment Date occurring prior to such Exchange Date in the form
set forth as Exhibit A-1 to this Indenture (or in such other forms as may be
established pursuant to Section 3.1). Notwithstanding anything to the contrary
herein contained, the certifications made pursuant to this paragraph shall
satisfy the certification requirements of the preceding two paragraphs of this
Section 3.4(b) and of Section 3.3(b) of this Indenture and the interests of the
Persons who are the beneficial owners of the temporary Global Security with
respect to which such certification was made will be exchanged for definitive
Securities of the same series and of like tenor on the Exchange Date or the date
of certification if such date occurs after the Exchange Date, without further
act or deed by such beneficial owners. Except as otherwise provided in this
paragraph, no payments of principal (or premium, if any) or interest, if any,
owing with respect to a beneficial interest in a temporary Global Security will
be made unless and until such interest in such temporary Global Security shall
have been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company.
SECTION 3.5 Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at one of the offices or agencies to be
maintained by the Company in accordance with the provisions of this Section 3.5
and Section 10.2, with respect to the Securities of each series which are
Registered Securities, a register (herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. Pursuant to Section 3.1, the Company shall
appoint, with respect to Securities of each series which are Registered
Securities, a "Security Registrar" for the purpose of registering such
Securities and transfers and exchanges of such Securities as herein provided.
The Trustee, at its Corporate Trust Office, is initially appointed "Security
Registrar" for such Registered Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained for such purpose,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denomination or denominations,
of like tenor and terms and aggregate principal amount, all as requested by the
transferor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denomination or denominations, of like tenor and terms and aggregate principal
amount, upon surrender of the Registered Securities to be exchanged at such
office or agency. Unless otherwise specified with respect to any series of
Securities as contemplated by Section 3.1, Bearer Securities may not be issued
in exchange for Registered Securities.
-28-
At the option of the Holder, Registered Securities or Bearer Securities of
any series may be issued in exchange for Bearer Securities (except as otherwise
specified as contemplated by Section 3.1 with respect to a Bearer Security in
global form) of the same series, of any authorized denominations and of like
tenor and terms and aggregate principal amount, upon surrender of the Bearer
Securities to be exchanged at any such office or agency with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 10.2, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor and terms after the close
of business at such office or agency of (i) any Regular Record Date and before
the opening of business at such office or agency on the relevant Interest
Payment Date or (ii) any Special Record Date and before the opening of business
at such office or agency on the related date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
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.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.3(h), the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's election pursuant to Section 3.1(9) shall
no longer be effective with respect to the Securities of such series and the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive form in an
aggregate principal amount equal to the principal
-29-
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive form and
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities.
If specified by the Company pursuant to Section 3.1 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms and in definitive form on
such terms as are acceptable to the Company and such Depositary. Thereupon, the
Company shall execute, and upon receipt of a Company Order, the Trustee shall
authenticate and deliver, without service charge,
(A) to each Person specified by such Depositary a new Security or
Securities of the same series, of like tenor and terms and of any
authorized denominations as requested by such person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in
the Global Security; and
(B) to such Depositary a new Global Security of like tenor and terms
and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate
principal amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and upon receipt of a Company Order, the Trustee will
authenticate and deliver Securities (a) in definitive registered form in
authorized denominations, if the Securities of such series are issuable as
Registered Securities, (b) in definitive bearer form in authorized
denominations, with coupons attached, if the Securities of such series are
issuable as Bearer Securities or (c) as either Registered or Bearer Securities,
as shall be specified by the beneficial owner thereof, if the Securities of such
series are issuable in either form; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Global Security unless
the Company or its agent shall have received from the person entitled to receive
the definitive Bearer Security a certificate substantially in the form set forth
in Exhibit A-1 and, if applicable, A-2 hereto; and provided further that
delivery of a Bearer Security shall occur only outside the United States; and
provided further that no definitive Bearer Security will be issued if the
Company has reason to know that any such certificate is false.
-30-
Upon the exchange of a Global Security for Securities in definitive form,
such Global Security shall be canceled by the Trustee. Registered Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Registered Securities to the persons in whose names such Securities
are so registered. The Trustee shall deliver Bearer Securities issued in
exchange for a Global Security pursuant to this Section to the persons, and in
such authorized denominations, as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Global Security unless
the Company or its agent shall have received from the person entitled to receive
the definitive Bearer Security a certificate substantially in the form set forth
in Exhibit A-1 and, if applicable, A-2 hereto; and provided further that
delivery of a Bearer Security shall occur only outside the United States; and
provided further that no definitive Bearer Security will be issued if the
Company has reason to know that any such certificate is false.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any transfer, registration of transfer or exchange of Securities, other
than exchanges of Securities expressly provided in this Indenture to be made at
the Company's own expense or without expense or without charge to the Holders.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any particular series to be redeemed for a period of
fifteen days preceding the first publication of the relevant notice of
redemption or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption of Securities of
such series selected for redemption under Section 11.3 and ending at the close
of business on the day of such mailing, (ii) to register the transfer of or
exchange any Registered Security so selected for redemption in whole or in part,
except the unredeemed portion of such Registered Security being redeemed in part
or (iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of like tenor
and terms of that series, provided that such Registered Security shall be
simultaneously surrendered for redemption.
-31-
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; neither the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
Federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges thereafter unless and until the Trustee receives a subsequent Company
Order to the contrary. The Company shall deliver copies of such Company Orders
to the Security Registrar.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities. If (i) any
mutilated Security or Security with a mutilated coupon is surrendered to a
Paying Agent outside the United States or, in the case of a Registered Security,
to the Trustee or (ii) the Company and the Trustee receive evidence to their
satisfaction of the loss, destruction or theft of any Security or coupon
together with, in proper cases, such security or indemnity as may be required by
the Company or the Trustee to save each of them or any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor (together
with all coupons not destroyed, lost or stolen) a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding with coupons corresponding to any coupons
appertaining to the surrendered Security; provided, that any such Bearer
Security will be delivered only in compliance with Section 3.3, 3.4 and 3.5, as
applicable.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, with coupons corresponding to the
coupons, if any, appertaining to such mutilated, destroyed, lost or stolen
Security or to the Security to which such mutilated, destroyed, lost or stolen
coupon appertains, pay such Security or coupon; provided, however, that payment
of principal of (and premium, if any) and interest, if any, on Bearer Securities
shall, except as otherwise provided in Section 10.2, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.1, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security or coupon under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the
-32-
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that Series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.7 Payment of Interest; Interest Rights Preserved; Optional
Interest Reset.
(a) Except as otherwise specified with respect to a series of Securities in
accordance with the provision of Section 3.1, interest, if any, on any
Registered Security that is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or agency of
the Company maintained for such purpose pursuant to Section 10.2; provided,
however, that each installment of interest, if any, on any Registered Security
may at the Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to
Section 3.9, to the address of such Person as it appears on the Security
Register or (ii) transfer to an account maintained by the payee inside the
United States.
Unless otherwise provided as contemplated by Section 3.1 with respect to
the Securities of any series, payment of interest, if any, may be made, in the
case of a Bearer Security, at the Holder's option by (i) check in the Currency
designated for such payment pursuant to the terms of the Bearer Security
presented or mailed to an address outside the United States or (ii) transfer to
an account in such Currency maintained by the payee with a bank located outside
the United States.
Unless otherwise provided as contemplated by Section 3.01, every permanent
Global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to each of Euroclear and CEDEL with respect to that
portion of such permanent Global Security held for its account by the
Depositary, for the purpose of permitting each of Euroclear and CEDEL to credit
the interest, if any, received by it in respect of such permanent Global
Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
-33-
(b) Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 3.1, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall deposit
with the Trustee an amount of money in the Currency in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series and except, if applicable, as
provided in Sections 3.12(b), 3.12(d) and 3.12(e)) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Registered Securities of
such series at his address as it appears in the Security Register not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series after the
close of business at such office or agency on any Special Record Date and
before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall
be surrendered without the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
-34-
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
The provisions of this Section 3.7(b) may be made applicable to any series
of Securities pursuant to Section 3.1 (with such modifications, additions or
substitutions as may be specified pursuant to such Section 3.1). The interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) on any Security of such series may be reset by the Company on the
date or dates specified on the face of such Security (each an "Optional Reset
Date"). The Company may exercise such option with respect to such Security by
notifying the Trustee of such exercise at least 45 but not more than 60 days
prior to an Optional Reset Date for such Security. Not later than 40 days prior
to each Optional Reset Date, the Trustee shall transmit, in the manner provided
for in Section 1.6, to the Holder of any such Security a notice (the "Reset
Notice") indicating whether the Company has elected to reset the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable), and if so (i) such new interest rate (or such new spread or spread
multiplier, if applicable) and (ii) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next Optional Reset Date
or, if there is no such next Optional Reset Date, to the Stated Maturity of such
Security (each such period a "Subsequent Interest Period"), including the date
or dates on which or the period or periods during which and the price or prices
at which such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the Optional
Reset Date, the Company may, at its option, revoke the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable)
provided for in the Reset Notice and establish an interest rate (or a spread or
spread multiplier used to calculate such interest rate, if applicable) that is
higher than the interest rate (or the spread or spread multiplier, if
applicable) provided for in the Reset Notice, for the Subsequent Interest Period
by causing the Trustee to transmit, in the manner provided for in Section 1.6,
notice of such higher interest rate (or such higher spread or spread multiplier,
if applicable) to the Holder of any such Security. Such notice shall be
irrevocable. All Securities with respect to which the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable)
is reset on an Optional Reset Date, and with respect to which the Holders of
such Securities have not tendered such Securities for repayment (or have validly
revoked any such tender) pursuant to the next succeeding paragraph, will bear
such higher interest rate (or such higher spread or spread multiplier, if
applicable).
The Holder of any such Security will have the option to elect repayment by
the Company of the principal of such Security on each Optional Reset Date at a
price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders except that the period for delivery or notification to the
Trustee
-35-
shall be at least 25 but not more than 35 days prior to such Optional Reset Date
and except that, if the Holder has tendered any Security for repayment pursuant
to the Reset Notice, the Holder may, by written notice to the Trustee, revoke
such tender or repayment until the close of business on the tenth day before
such Optional Reset Date.
(a) Subject to the foregoing provisions of this Section 3.7 and Section
3.5, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 3.8 Optional Extension of Maturity. The provisions of this
Section 3.8 may be made applicable to any series of Securities pursuant to
Section 3.1 (with such modifications, additions or substitutions as may be
specified pursuant to such Section 3.1). The Stated Maturity of any Security of
such series may be extended at the option of the Company for the period or
periods specified on the face of such Security (each, an "Extension Period") up
to but not beyond the date (the "Final Maturity") set forth on the face of such
Security. The Company may exercise such option with respect to any Security by
notifying the Trustee of such exercise at least 30 but not more than 60 days
prior to the Stated Maturity of such Security in effect prior to the exercise of
such option (the "Original Stated Maturity"). If the Company exercises such
option, the Trustee shall transmit, in the manner provided for in Section 1.6,
to the Holder of any such Security not later than 40 days prior to the Original
Stated Maturity a notice (the "Extension Notice") indicating (i) the election of
the Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii)
the interest rate, if any, applicable to the Extension Period and (iv) the
provisions, if any, for redemption during such Extension Period. Upon the
Trustee's transmittal of the Extension Notice, the Stated Maturity of such
Security shall be extended automatically and, except as modified by the
Extension Notice and as described in the next paragraph, such Security will have
the same terms as prior to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the Original
Stated Maturity of such Security, the Company may, at its option, revoke the
interest rate provided for in the Extension Notice and establish a higher
interest rate for the Extension Period by causing the Trustee to transmit, in
the manner provided for in Section 1.6, notice of such higher interest rate to
the Holder of any such Security. Such notice shall be irrevocable. All
Securities with respect to which the Stated Maturity is extended will bear such
higher interest rate.
If the Company extends the Stated Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Stated Maturity thereof, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders, except that the period for delivery or notification to
the Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee
-36-
revoke such tender for repayment until the close of business on the tenth day
before the Original Stated Maturity.
SECTION 3.9 Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any) and (subject to
Section 3.5 and 3.7) any interest on such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security is overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any Depositary, as a Holder, with respect to such
Global Security or impair, as between such Depositary and owners of beneficial
interests in such Global Security, the operation of customary practices
governing the exercise of the rights of such Depositary (or its nominee) as
Holder of such Global Security.
SECTION 3.10 Cancellation. All Securities and coupons surrendered for
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time 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 (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in
-37-
this Section, except as expressly permitted by this Indenture. All canceled
Securities and coupons held by the Trustee shall be disposed of as directed by a
Company Order.
SECTION 3.11 Computation of Interest. Except as otherwise specified as
contemplated by Section 3.1 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 3.12 Currency and Manner of Payments in Respect of Securities.
(a) Unless otherwise specified with respect to any Securities pursuant to
Section 3.1, with respect to Registered Securities of any series not permitting
the election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of (and premium, if any) and interest, if any, on any
Registered or Bearer Security of such series will be made in the Currency in
which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 3.12 may be modified or superseded with
respect to any Securities pursuant to Section 3.1.
(b) It may be provided pursuant to Section 3.1 with respect to Registered
Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of (or premium,
if any) or interest, if any, on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustee for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section
3.1, not later than the close of business on the Election Date (as defined
below) immediately preceding the applicable payment date. If a Holder so elects
to receive such payments in any such Currency, such election will remain in
effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee for such series of
Registered Securities (but any such change must be made not later than the close
of business on the Election Date immediately preceding the next payment date to
be effective for the payment to be made on such payment date and no such change
of election may be made with respect to payments to be made on any Registered
Security of such series with respect to which an Event of Default has occurred
or with respect to which the Company has deposited funds pursuant to Article
Four or Fifteen or with respect to which a notice of redemption has been given
by the Company or a notice of option to elect repayment has been sent by such
Holder or such transferee). Any Holder of any such Registered Security who shall
not have delivered any such election to the Trustee of such series of Registered
Securities not later than the close of business on the applicable Election Date
will be paid the amount due on the applicable payment date in the relevant
Currency as provided in Section 3.12(a). The Trustee for each such series of
Registered Securities shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.
-38-
(c) Unless otherwise specified pursuant to Section 3.1, if the election
referred to in paragraph (b) above has been provided for pursuant to Section
3.1, then, unless otherwise specified pursuant to Section 3.1, not later than
the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying the Currency in which Registered Securities
of such series are payable, the respective aggregate amounts of principal of
(and premium, if any) and interest, if any, on the Registered Securities to be
paid on such payment date, specifying the amounts in such Currency so payable in
respect of the Registered Securities as to which the Holders of Registered
Securities denominated in any Currency shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 3.1 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 3.1, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency or Currencies amount receivable by Holders of Registered Securities who
have elected payment in a Currency as provided in paragraph (b) above. Such
amounts shall be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the second Business Day (the "Valuation Date")
immediately preceding each payment date, and such determination shall be
conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than pursuant to an
election provided for pursuant to paragraph (b) above, then with respect to each
date for the payment of principal of (and premium, if any) and interest, if any,
on the applicable Securities denominated or payable in such Foreign Currency
occurring after the last date on which such Foreign Currency was used (the
"Conversion Date"), the Dollar shall be the currency of payment for use on each
such payment date. Unless otherwise specified pursuant to Section 3.1, the
Dollar amount to be paid by the Company to the Trustee of each such series of
Securities and by such Trustee or any Paying Agent to the Holders of such
Securities with respect to such payment date shall be, in the case of a Foreign
Currency other than a currency unit, the Dollar Equivalent of the Foreign
Currency (as defined below) or, in the case of a currency unit, the Dollar
Equivalent of the Currency Unit (as defined below), in each case as determined
by the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.1, if the Holder of a
Registered Security denominated in any Currency shall have elected to be paid in
another Currency as provided in paragraph (b) above, and a Conversion Event
occurs with respect to such elected Currency, such Holder shall receive payment
in the Currency in which payment would have been made in the absence of such
election; and if a Conversion Event occurs with respect to the Currency in which
payment would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) of this Section 3.12.
(f) "Dollar Equivalent" when used with respect to any Foreign Currency
shall be determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by
-39-
converting the specified Foreign Currency into Dollars at the Market Exchange
Rate on the Conversion Date.
(g) "Dollar Equivalent" when used with respect to any Currency Unit shall
be determined by the Exchange Rate Agent and subject to the provisions of
paragraph (h) below shall be the sum of each amount obtained by converting the
Specified Amount (as defined below) of each Component Currency (as defined
below) into Dollars at the Market Exchange Rate for such Component Currency on
the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.12, the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a Component Currency of the relevant currency unit,
including, but not limited to, the Euro. A "Specified Amount" of a
Component Currency shall mean the number of units of such Component
Currency or fractions thereof which were represented in the relevant
currency unit, including, but not limited to, the Euro, on the Conversion
Date. If after the Conversion Date the official unit of any Component
Currency is altered by way of combination or subdivision, the Specified
Amount of such Component Currency shall be divided or multiplied in the
same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an
amount in such single currency equal to the sum of the respective Specified
Amounts of such consolidated Component Currencies expressed in such single
currency, and such amount shall thereafter be a Specified Amount and such
single currency shall thereafter be a Component Currency. If after the
Conversion Date any Component Currency shall be divided into two or more
currencies, the Specified Amount of such Component Currency shall be
replaced by amounts of such two or more currencies, having an aggregate
Dollar Equivalent value at the Market Exchange Rate on the date of such
replacement equal to the Dollar Equivalent of the Specified Amount of such
former Component Currency at the Market Exchange Rate immediately before
such division, and such amounts shall thereafter be Specified Amounts and
such currencies shall thereafter be Component Currencies. If, after the
Conversion Date of the relevant currency unit, including, but not limited
to, the Euro, a Conversion Event (other than any event referred to above in
this definition of "Specified Amount") occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable
Valuation Date, the Specified Amount of such Component Currency shall, for
purposes of calculating the Dollar Equivalent of the Currency Unit, be
converted into Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.
"Election Date" shall mean the Regular Record Date for the applicable
series of Registered Securities or at least 16 days prior to Maturity, as
the case may be, or such other prior date for any series of Registered
Securities as specified pursuant to Section 3.1(14) by which the written
election referred to in Section 3.12(b) may be made.
-40-
All decisions and determinations of the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency
Unit, the Market Exchange Rate and changes in the Specified Amounts as specified
above shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company,
the Trustee for the appropriate series of Securities and all Holders of such
Securities denominated or payable in the relevant Currency. The Exchange Rate
Agent shall promptly give written notice to the Company and the Trustee for the
appropriate series of Securities of any such decision or determination.
In the event that the Company determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company will
immediately give written notice thereof to the Trustee of the appropriate series
of Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 1.6 to the affected
Holders) specifying the Conversion Date. In the event the Company so determines
that a Conversion Event has occurred with respect to the Euro or any other
currency unit in which Securities are denominated or payable, the Company will
immediately give written notice thereof to the Trustee of the appropriate series
of Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 1.6 to the affected
Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event the Company determines
in good faith that any subsequent change in any Component Currency as set forth
in the definition of Specified Amount above has occurred, the Company will
similarly give written notice to the Trustee of the appropriate series of
Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 1.6 to the affected
Holders).
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
SECTION 3.13 Appointment and Resignation of Successor Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 3.1, if and so long as
the Securities of any series (i) are denominated in a Foreign Currency or (ii)
may be payable in a Foreign Currency, or so long as it is required under any
other provision of this Indenture, then the Company will maintain with respect
to each such series of Securities, or as so required, at least one Exchange Rate
Agent. The Company will cause the Exchange Rate Agent to make the necessary
foreign exchange determinations at the time and in the manner specified pursuant
to Section 3.1 for the purpose of determining the applicable rate of exchange
and, if applicable, for the purpose of converting the issued Foreign Currency
into the applicable payment Currency for the payment of principal (and premium,
if any) and interest, if any, pursuant to Section 3.12.
-41-
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent
for any cause, with respect to the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 3.1, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
SECTION 3.14 CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
indicate the "CUSIP" numbers of the Securities in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of such numbers either
as printed on the Securities or as contained in any notice of redemption and
that reliance may be placed only on the other identification numbers printed on
the Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers.
SECTION 3.15 Certification by a Person Entitled to Delivery of Bearer
Security. Whenever any provision of this Indenture or a Security contemplates
that certification be given by a Person entitled to delivery of a Bearer
Security, such certification shall be provided substantially in the form of
Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall be
approved by the Company and consented to by the Trustee whose consent shall not
unreasonably be withheld.
SECTION 3.16 Judgments. The Company may provide, pursuant to Section 3.1,
for the Securities of any series that, to the fullest extent possible under
applicable law and except as may otherwise be specified as contemplated in
Section 3.1, (a) the obligation, if any, of the Company to pay the principal of
(and premium, if any) and interest on the Securities of any series and any
appurtenant coupons in a Foreign Currency, composite Currency or Dollars (the
"Designated Currency") as may be specified pursuant to Section 3.1 is of the
essence and agrees that judgments in respect of such Securities shall be given
in the Designated Currency; (b) the obligation of the Company to make payments
in the Designated Currency of the principal of (and premium, if any) and
interest on such Securities and any appurtenant coupons shall, notwithstanding
any payment in any other currency (whether pursuant to a judgment or otherwise),
be discharged only to the extent of the amount in the Designated Currency that
the Holder receiving such payment may, in accordance with normal banking
procedures, purchase with the sum paid in such other currency
-42-
(after any premium and cost of exchange) in the country of issue of the
Designated Currency in the case of Foreign Currency or Dollars or in the
international banking community in the case of a composite currency on the
Business Day immediately following the day of such payment; (c) if the amount in
the Designated Currency that may be purchased falls short of the amount
originally due for any reason, the Company shall pay such additional amounts
needed to compensate for any short fall; and (d) any obligation of the Company
not discharged by such payment shall be due as a separate and independent
obligation and, until discharged as provided herein, shall continue in full
force and effect.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture shall
upon Company Request cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of Securities herein expressly
provided for and rights to receive payments of principal (and premium, if any)
and interest thereon and any right to receive additional amounts, as provided in
Section 10.5), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either
i) all Securities theretofore authenticated, issued and delivered
and all coupons appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered in exchange for Registered Securities and maturing
after such exchange, surrender of which is not required or has been waived as
provided in Section 3.5; (ii) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 3.6; (iii)
coupons appertaining to Bearer Securities called for redemption or surrendered
for repayment and maturing after the relevant Redemption Date or Repayment Date,
as appropriate, surrender of which has been waived as provided in Section 11.6
or 13.3; and (iv) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section
10.3), have been delivered to the Trustee for cancellation; or
ii) all such Securities and, in the case of (B) (i) or (ii) below,
any coupons appertaining thereto, not theretofore delivered to the Trustee for
cancellation
(a) have become due and payable, or
(b) will become due and payable at their Stated Maturity within
one year, or
-43-
(c) if redeemable at the option of the Company, are to be called
for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense,
of the Company,
and the Company, in the case of (B) (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust an amount
sufficient to pay and discharge the entire indebtedness on such Securities and
such coupons not theretofore delivered to the Trustee for cancellation, for
principal (and any premium , if any) and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, or any Repayment Dates as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
(a) Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 or 15.4 shall be held
in trust and applied by it, in accordance with the provisions of the Securities,
the coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
(b) If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Four with respect to the Securities of any series
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Four with respect to Securities of such series until such time as
the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to this Section 4.2 with respect to Securities of such series in
accordance with this Article Four; provided, however, that if the Company makes
any payment of principal (or premium, if any) or interest on any Security of
such series following the reinstatement
-44-
of its obligations, the Company shall be subrogated to the rights of the Holders
of Securities of such series to receive payment from the money so held in trust.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default. An "Event of Default" with respect to
Securities of any series occurs if:
(1) the Company defaults in the payment of any installment of interest
upon any Security of that series or of any coupon appertaining thereto when
it becomes due and payable, and continuance of such default for a period of
30 days, whether or not such payment shall be prohibited by Article
Sixteen; or
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any Security of that series at its Maturity, whether
or not such payment shall be prohibited by Article Sixteen; or
(3) the Company defaults in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series, whether or not
such payment shall be prohibited by Article Sixteen; or
(4) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that
series), and such failure continues for 60 days after receipt by the
Company of a Notice of Default; or
(5) a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of the
Company under any Bankruptcy Law, and such decree or order shall have
continued undischarged and unstayed for a period of 60 days; or a decree or
order of a court having jurisdiction in the premises for the appointment of
a receiver or liquidator or trustee or assignee in bankruptcy or insolvency
of the Company or of its property, or for the winding-up or liquidation of
its affairs, shall have been entered, and such decree or order shall have
remained in force undischarged and unstayed for a period of 60 consecutive
days; or
(6) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a
-45-
petition or answer or consent seeking reorganization under any Bankruptcy
Law, or shall consent to the filing of any such petition, or shall consent
to the appointment of a receiver or liquidator or trustee or assignee in
bankruptcy or insolvency of it or of its property or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due; or
(7) any other Event of Default as provided with respect to Securities
of any particular series occurs.
"Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any similar Federal
or state law for the relief of debtors. "Custodian" means any receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (4) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in principal amount
of the Outstanding Securities for that series notify the Company and the
Trustee, of the Default and the Company does not cure such Default (and such
Default is not waived) within the time specified in clause (4) above after
receipt of such notice. Any such notice must specify the Default, demand that it
be remedied and state that such notice is a Notice of Default.
SECTION 5.2 Acceleration. If an Event of Default with respect to
Securities of any series at the time Outstanding (other than an Event of Default
specified in Section 5.4(5) or (6)) occurs and is continuing, then in every such
case the Trustee by notice to the Company, or the Holders of at least 25% in
principal amount of the Outstanding Securities of that series by notice to the
Company and the Trustee, may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount of such Securities as may be
specified in the terms hereof) of all of the Outstanding Securities of that
series to be immediately due and payable. Upon any such declaration, such
principal amount (or specified amount) shall be due and payable immediately. If
an Event of Default specified in Section 5.1(5) or (6) occurs and is continuing,
the principal amount (or, if any of the Securities of that series are Original
Issue Discount Securities or Indexed Securities, such portion of the principal
amount of such Securities as may be specified in the terms hereof) of all of the
Outstanding Securities of that series shall become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holders of that series. The Holders of a majority of the principal amount of the
Outstanding Securities of that series, by notice to the Trustee (and without
notice to any other Holder of that series) may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of the amounts specified in Section 5.1(1) or (2) that have become
due solely as a result of acceleration and if all amounts due to the Trustee
under Section 6.7 have been paid. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
-46-
SECTION 5.3 Other Remedies. If an Event of Default with respect to
Securities of any series at the time outstanding (such Securities being referred
to herein as "Defaulted Securities") occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of the principal (and
premium, if any) and interest, if any, or to enforce the performance of any
provision of the Defaulted Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not possess
any of the Defaulted Securities or does not produce any of the Defaulted
Securities in the proceeding. A delay or omission by the Trustee or any Holder
in exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 5.4 Waiver of Past Defaults. The Holders of a majority in
principal amount of the Outstanding Defaulted Securities by notice to the
Trustee (and without notice to any other Holder), may waive an existing Default
and its consequences except (1) an Event of Default described in Section 5.1(1)
or (2), or (2) a Default in respect of a provision that under Section 9.2 cannot
be amended without the consent of each Holder affected. When a Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right. This Section 5.4 shall be in lieu
of Section 316(a)1(B) of the TIA and such Section 316(a)1(B) is hereby expressly
excluded from this Indenture, as permitted by the TIA.
SECTION 5.5 Control by Majority. The Holders of a majority in principal
amount of the Outstanding Securities of a series may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or that
the Trustee determines in good faith is unduly prejudicial to the rights of
other Holders (it being understood that the Trustee shall have no duty to
ascertain whether or not such actions or forebearances are unduly prejudicial to
such Holders) of that series or would involve the Trustee in personal liability
unless the Trustee is offered indemnity satisfactory to it. This Section 5.5
shall be in lieu of Section 316(a)1(A) of the TIA and such Section 316(a)1(A) is
hereby expressly excluded from this Indenture, as permitted by the TIA.
SECTION 5.6 Limitation on Suits. A Holder may not pursue any remedy with
respect to this Indenture or the Securities of a series or any related coupons
unless:
(1) the Holder has previously given to the Trustee written notice
stating that an Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the Outstanding
Securities of that series make a written request to the Trustee to pursue
the remedy;
-47-
(3) such Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense satisfactory to the
Trustee;
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or indemnity;
and
(5) the Holders of a majority in principal amount of the Outstanding
Securities of that series do not give the Trustee a direction inconsistent
with the request during such 60-day period.
A Holder of any Outstanding Securities of any series may not use this
Indenture to prejudice the rights of any other Holder of Outstanding Securities
of the same series or to obtain a preference or priority over any other Holder
of Outstanding Securities of the same series.
SECTION 5.7 Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, but subject to Article Sixteen, the right of
any Holder to receive payment of the principal of (and premium, if any) or
interest, if any, in respect of the Securities held by such Holder, on or after
the Stated Maturity or to bring suit for the enforcement of any such payment on
or after such Stated Maturity shall not be impaired or affected adversely
without the consent of each such Holder.
SECTION 5.8 Collection Suit by Trustee. If an Event of Default described
in Section 5.1(1), (2) or (3) 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 owing with respect to the Defaulted Securities and the
amounts provided for in Section 6.7; subject, however, to Article Sixteen.
SECTION 5.9 Trustee May File Proofs of Claim. In 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 of a series or the property
of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal (and premium, if any) or interest, if
any, in respect of the Securities of that series shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment of any
such amount) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(a) to file and prove a claim for the whole amount of the principal (or in
the case of Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be provided in the terms thereof) (and premium,
if any) or interest, if any, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
-48-
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any Custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder of Securities of that series 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 of Securities of that series, to pay the Trustee any amount due
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.7.
Nothing herein contained shall be deemed to authorize 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, provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and may be a member of any creditors'
committee.
SECTION 5.10 Priorities. If the Trustee collects any money pursuant to
this Article Five in respect of a series of Securities, it shall pay out the
money in the following order:
FIRST: to the Trustee for costs and expenses of collection, including
all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses and disbursements of the Trustee, its agents and
counsel and for other amounts due under Section 6.7;
SECOND: to holders of Senior Indebtedness to the extent required by
Article Sixteen;
THIRD: to Holders for amounts due and unpaid on the Securities of
that series for the principal (and premium, if any) or interest, if any, as
the case may be, ratably, without preference or priority of any kind,
according to such amounts due and payable on the Securities of that series.
The Holders of each series of Securities denominated in Euro, any other
composite Currency or a Foreign Currency and any matured coupons relating
thereto shall be entitled to receive a ratable portion of the amount
determined by the Exchange Rate Agent by converting the principal amount
Outstanding of such series of Securities and matured but unpaid interest on
such series of Securities in the Currency in which such series of
Securities is denominated into Dollars at the Exchange Rate as of the date
of declaration of acceleration of the Maturity of the Securities; and
FOURTH: the balance, if any, to the Company.
-49-
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.10. At least 15 days before such record
date, the Company shall mail to each Holder and the Trustee a notice that states
the record date, the payment date and amount to be paid.
SECTION 5.11 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, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 5.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 5.7 or a suit
by Holders of more than 10% in principal amount of the Outstanding Securities of
that series. This Section 5.11 shall be in lieu of Section 315(e) of the TIA and
such Section 315(e) is hereby expressly excluded from this Indenture as
permitted by the TIA.
SECTION 5.12 Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the principal (and
premium, if any) or any interest on any such amounts, as contemplated herein, or
which may affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such laws and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities. The duties and
responsibilities of the Trustee shall be as provided by Section 315 and 316 of
the Trust Indenture Act and this Indenture. Except during the continuance of an
Event of Default, (i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and the Trustee
shall not be liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and (ii) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of statements and correctness of the opinions expressed therein, upon
any statements, certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee
-50-
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, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 6.1.
SECTION 6.2 Notice of Defaults. If a default occurs hereunder with
respect to Securities of any series, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the extent provided
by Section 315(b) of the Trust Indenture Act; provided, however, that in the
case of any default of the character specified in Section 5.1(4) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section 6.2,
the term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
SECTION 6.3 Certain Rights of Trustee. Subject to the provisions of
Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate or other certificate,
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 party or parties;
(b) any instruction, request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting to take any action hereunder, the Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) before the Trustee acts or refrains from acting, 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;
(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 or direction of any of
the Holders of Securities of any series or any related coupons pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
-51-
(f) 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,
Officers' Certificate, or other certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless requested in writing
so to do by the Holders of not less than a majority in aggregate principal
amount of the Securities then outstanding; provided that, if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such examination shall be paid by the Company or,
if advanced by the Trustee, shall be repaid by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys reasonably acceptable to the Company and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
(h) the Trustee shall not be responsible for the computation of any
adjustment to the Conversion Price or for any determination as to whether an
adjustment is required;
(i) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(j) the Trustee shall not be required to give any bond or surety in respect
of the performance of its powers and duties hereunder;
(k) the Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions, or agreements on the
part of the Company, except as otherwise set forth herein, but the Trustee may
require of the Company full information and advice as to the performance of the
covenants, conditions and agreements contained herein and shall be entitled in
connection herewith to examine the books, records and premises of the Company;
(l) the permissive rights of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty and the Trustee shall not be
answerable for other than its negligence or willful default; and
(m) except for (i) a default under Section 5.1(1) or (2) hereof, or (ii)
any other event of which the Trustee has "actual knowledge" and which event,
with the giving of notice or the passage of time or both, would constitute an
Event of Default under this Indenture, the Trustee shall not be deemed to have
notice of any default or event unless specifically notified in writing of such
event by the Company or the Holders of not less than 25% in aggregate principal
amount of the Securities
-52-
Outstanding; as used herein, the term "actual knowledge" means the actual fact
or statement of knowing, without any duty to make any investigation with regard
thereto.
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, and in any coupons, shall be taken as the
statements of the Company, and the Trustee or any Authenticating Agent assumes
no responsibility for their correctness. The Trustee shall not be responsible
for and makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or any coupons. The Trustee or any Authenticating
Agent shall not be accountable for the use or application by the Company or any
Paying Agent of Securities or the proceeds thereof.
SECTION 6.5 May Hold Securities. The Trustee, any Authenticating Agent,
any Paying Agent, any Security Registrar or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to Sections 6.8 and 6.13, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.6 Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed to in writing by the Company
and the Trustee.
SECTION 6.7 Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation as the Company and the Trustee shall
from time to time agree in writing for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its gross negligence or
willful misconduct; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without gross negligence or willful
misconduct on its part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
-53-
The obligations of the Company under this Section 6.7 to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (and premium, if any,
on) or interest on particular Securities, and the Securities are hereby
subordinated to such prior claim. When the Trustee incurs expenses or renders
services in connection with an Event of Default specified in Article Five
hereof, the expenses (including reasonable fees and expenses of its counsel) and
the compensation for the service in connection therewith are intended to
constitute expense of administration under any applicable bankruptcy law.
The Trustee shall give the Company notice of any claim or liability for
which the Trustee might be entitled to indemnification under subparagraph (3) of
this Section 6.7 within a reasonable amount of time after a trust officer of the
Trustee becomes aware of such claim or liability.
SECTION 6.8 Disqualification; Conflicting Interests. If the Trustee has
or shall acquire a conflicting interest within the meaning of Section 310(b) of
the Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under the Indentures, dated as of March
15, 1985, October 1, 1991 and May 1, 1995, between the Company and the Trustee.
Nothing herein shall prevent the Trustee from filing with the Commission the
application referred to in the penultimate paragraph of Section 310(b) of the
Trust Indenture Act.
SECTION 6.9 Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder which shall be a Person that is eligible pursuant
to Section 310(a) of the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $25,000,000 and its Corporate Trust Office is in
The City of New York, New York or in the City of Chicago, Illinois. The Trustee
hereby represents and warrants that it is currently in compliance and at all
times will remain in compliance with the foregoing requirements of this Section
6.9. If such Person publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. Neither the Company nor any
Affiliate of the Company shall serve as Trustee hereunder. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 6.9, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 6.10 Resignation and Removal; Appointment of Successor. No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this
-54-
Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section
6.11.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section 6.11 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act pursuant to Section 6.8 hereof after written request therefor
by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or
(4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Trustee or its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or shall take corporate action in
furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, or the Trustee,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the
-55-
Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 6.11. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, or the Trustee, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 1.6. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall
-56-
be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
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
first two paragraphs of this Section 6.11, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article and under the Trust Indenture Act.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article and
under the Trust Indenture Act, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 6.13 Preferential Collection of Claims Against Company. If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
Section 311(a) of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor), excluding any creditor
relationships described in Section 311(b) of the Trust Indenture Act. A Trustee
who resigned or has been removed shall be subject to Section 311(a) of the Trust
Indenture Act to the extent indicated therein.
-57-
SECTION 6.14 Appointment of Authenticating Agent. The Trustee may appoint
an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.6, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then,
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.14, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 6.14, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.14, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.14.
-58-
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 6.7.
If an appointment with respect to one or more series is made pursuant to
this Section 6.14, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
________________________________
AS TRUSTEE
BY _____________________________
AS AUTHENTICATING AGENT
BY _____________________________
AUTHORIZED OFFICER
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names And Addresses of Holders. The
Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after each Regular Record Date
for each series of Securities at the time Outstanding, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders
of Registered Securities of such series as of the preceding Regular Record Date
(or a date to be determined pursuant to Section 3.1 for Original Issue Discount
Securities), and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in
its capacity as Security Registrar.
SECTION 7.2 Preservation of Information; Communications to Holders.
-59-
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Registered Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.1 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished. The Trustee shall preserve
for at least two years the names and addresses of Holders of Bearer Securities
filed with the Trustee by such Holders.
The rights of the Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by Section 312(b) of
the Trust Indenture Act.
Every Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 7.3 Reports by Trustee. The Trustee shall transmit to Holders
such reports concerning the Trustee and its actions under this Indenture as may
be required pursuant to Section 313 of the Trust Indenture Act at the times and
in the manner provided pursuant thereto, if so required.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 7.4 Reports by Company. The Company shall file with the Trustee
and the Commission, and transmit to Holders, such information, documents and
other reports, and such summaries thereof, as may be required pursuant to
Section 314(a) of the Trust Indenture Act at the times and in the manner
provided pursuant to the TIA; provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms. The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease all or substantially all of its properties and assets to any
Person, and the Company shall not permit any
-60-
Person to consolidate with or merge into the Company or convey, transfer or
lease all or substantially all of its properties and assets to the Company,
unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease all or substantially all of its
properties and assets to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, all or substantially
all of the properties and assets of the Company shall be a corporation,
partnership or trust, shall be organized and validly existing under the
laws of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or
such successor Person, as the case may be, shall take such steps as shall
be necessary to effectively secure the Securities equally and ratably with
(or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 8.2 Successor Person Substituted. Upon any consolidation of the
Company with, or merger of the Company into any other Person or any conveyance,
transfer or lease of all or substantially all of the properties and assets of
the Company in accordance with Section 8.1, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities and coupons. Upon delivery of
an Opinion of Counsel reasonably satisfactory to the Trustee, the
-61-
Trustee shall enter into a supplemental indenture to evidence the succession and
substitution of such successor person and the discharge and release of the
Company.
ARTICLE IX
SUPPLEMENTAL INDENTURES SECTION
SECTION 9.1 Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders of Securities or coupons, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities or coupons (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Securities, stating
that such Events of Default are expressly being included solely to be
applicable to such series): or
(4) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Registered Securities or of principal (or
premium, if any) or any interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities of other
authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form; provided that any such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no Outstanding Security; or
-62-
(6) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11; or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; provided that such action pursuant to this clause (9)
shall not adversely affect the interests of the Holders of Securities of
any series or any appurtenant coupons in any material respect; or
(9) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTION 9.2 Supplemental Indentures With Consent of Holders. With the
consent of the Holders of a majority in principal amount of the Outstanding
Securities of each series affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture shall without the consent of the Holder of each Outstanding Security
affected thereby:
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof (or premium, if any) or the rate of interest thereon or any
premium payable upon the redemption thereof, or repayment thereof, or
change any obligation of the Company to pay additional amounts pursuant to
Section 10.5 (except as contemplated by Section 8.1(1) and permitted by
Section 9.1(1)) or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, or change
any Place of Payment where, or the Currency in which, any Security (or
premium, if any) or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption or repayment, on or
after the Redemption Date or Repayment Date, as applicable); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture,
-63-
or the consent of whose Holders is required for any waiver (of compliance
with certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture or reduce the quorum or
voting requirements of Section 14.4; or
(3) modify any of the provisions of this Section 9.2 or Section 5.13,
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,
provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section 9.2, or the deletion of
this proviso, in accordance with the requirements of Section 6.11 and
9.1(8); or
(4) modify any of the provisions of this Indenture relating to the
subordination of the Securities in a manner adverse to the Holders without
the consent of all Holders. 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 the Holders of
Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series. A supplemental indenture may
not make any change that adversely affects the rights under Article Sixteen
of any holder of Senior Indebtedness then outstanding unless the requisite
holders of such Senior Indebtedness consent to such change pursuant to the
terms of such Senior Indebtedness. It shall not be necessary for any Act
of Holders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof .
SECTION 9.3 Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.1) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.5 Conformity With Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
-64-
SECTION 9.6 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company or the Trustee shall so determine, new Securities of
any series so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
SECTION 9.7 Notice of Supplemental Indenture. Promptly after the
execution by the Company and the Trustee of any supplemental indenture pursuant
to Section 9.2, the Company shall transmit to the Holders a notice setting forth
the substance of such supplemental indenture.
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium And Interest. The Company
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of (and premium, if any) and interest on
the Securities of that series in accordance with the terms of the Securities,
any appurtenant coupons and this Indenture. Any interest due on Bearer
Securities on or before Maturity, other than additional amounts, if any, payable
as provided in Section 10.5 in respect of principal of (or premium, if any, on)
such a Security, shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature. Unless otherwise specified with respect to Securities of any
series pursuant to Section 3.1, at the option of the Company, all payments of
principal may be paid by check to the registered Holder of the Registered
Security or other person entitled thereto against surrender of such Security.
Unless otherwise specified as contemplated by Section 3.1 with respect to any
series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
SECTION 10.2 Maintenance of Office or Agency. The Company will maintain
in each Place of Payment for any series of Securities an office or agency where
Securities of that series (but, except as otherwise provided below, unless such
Place of Payment is located outside the United States, not Bearer Securities)
may be presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain, subject to any laws or regulations
applicable thereto, an office or agency in a Place of Payment for such series
which is located outside the United States where Securities of such series and
the related coupons may be presented and surrendered for payment (including
payment of any additional amounts payable on Securities of such series pursuant
to Section 10.5); provided, however, that if the
-65-
Securities of such series are listed on The Stock Exchange of the United Kingdom
and the Republic of Ireland or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent in London or Luxembourg or any
other required city located outside the United States, as the case may be, so
long as the Securities of such series are listed on such exchange. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands, except that Bearer Securities of
that series and the related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Bearer Securities of
that series pursuant to Section 10.5) at the place specified for the purpose
pursuant to Section 3.1(5).
No payment of principal of, (or premium, if any) or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; provided,
however, payment of principal of and any premium and interest denominated in
Dollars (including additional amounts payable in respect thereof) on any Bearer
Security may be made at an office or agency of, and designated by, the Company
located in the United States if (but only if) payment of the full amount of such
principal, premium, interest or additional amounts in Dollars at all offices
outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions and the Trustee receives an Opinion of
Counsel that such payment within the United States is legal. Unless otherwise
provided as contemplated by Section 3.1 with respect to any series of
Securities, at the option of the Holder of any Bearer Security or related
coupon, payment may be made by check in the Currency designated for such payment
pursuant to the terms of such Bearer Security presented or mailed to an address
outside the United States or by transfer to an account in such Currency
maintained by the payee with a bank located outside the United States.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series 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 10.3 Money For Securities Payments to Be Held in Trust. If the
Company, a Subsidiary or any of their respective Affiliates, shall at any time
act as its own Paying Agent with respect to any series of Securities, it will,
on or before each due date of the principal of (or premium, if any) or interest
on any of the Securities of that series, segregate and hold in trust for
-66-
the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) and interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act. Whenever
the Company shall have one or more Paying Agents for any series of Securities,
it will, prior to each due date of the principal of (or premium, if any) or
interest on any Securities of that series, and any appurtenant coupons, deposit
with a Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section 10.3, that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series and any appurtenant coupons, and upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (or premium, if any)
or interest on any Security of any series or any related coupons and remaining
unclaimed for two years after such principal (or premium) or interest has become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 10.4 Purchase of Securities by Company or Subsidiary. If and so
long as the Securities of a series are listed on The Stock Exchange of the
United Kingdom and the Republic of Ireland and such stock exchange shall so
require, the Company will not, and will not
-67-
permit any Subsidiary to, purchase any Securities of that series by private
treaty at a price (exclusive of expenses and accrued interest) which exceeds
120% of the mean of the nominal quotations of the Securities of that series as
shown in The Stock Exchange Daily Official List for the last trading day
preceding the date of purchase.
SECTION 10.5 Payment of Additional Amounts. If the Securities of a series
provide for the payment of additional amounts, the Company will pay to the
Holder of any Security of any series or any coupon appertaining thereto
additional amounts upon the terms and subject to the conditions provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any) or interest on, or in respect
of, any Security of any series, of any related coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of additional amounts provided
for in the terms of such Securities and this Section 10.5 to the extent that, in
such context, additional amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any provisions hereof shall not
be construed as excluding additional amounts in those provisions hereof where
such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal (and
premium, if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's Paying Agent or Paying
Agents, if other than the Trustee, with an Officer's Certificate instructing the
Trustee and such Paying Agent or Paying Agents whether such payment of principal
of (and premium, if any) or interest on the Securities of that series shall be
made to Holders of Securities of that series or the related coupons who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of that
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons and the Company will
pay to the Trustee or such Paying Agent the additional amounts, if any, required
by the terms of such Securities and the first paragraph of this Section 10.5.
The Company covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section 10.5.
SECTION 10.6 Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and
-68-
observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of force provided
hereunder), and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
(b) The Company shall deliver to the Trustee as soon as possible, and in
any event within five days after the Company becomes aware or should reasonably
have become aware of the occurrence of any Default or Event of Default, an
Officers' Certificate specifying such Default or Event of Default, the period of
existence thereof and what action the Company is taking or proposes to take with
respect thereto.
SECTION 10.7 Existence. Subject to Article Eight, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 10.8 [INTENTIONALLY OMITTED].
SECTION 10.9 [INTENTIONALLY OMITTED].
SECTION 10.10 [INTENTIONALLY OMITTED].
SECTION 10.11 [INTENTIONALLY OMITTED].
SECTION 10.12 [INTENTIONALLY OMITTED].
-69-
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 3.1
for Securities of any series) in accordance with this Article.
SECTION 11.2 Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities shall be evidenced by a Board Resolution. In
case of any redemption at the election of the Company of less than all the
Securities of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 11.3 Selection by Trustee of Securities to Be Redeemed. Except as
otherwise specified or contemplated by Section 3.1 for Securities of any series,
if less than all the Securities of any series are to be redeemed (unless all of
the Securities of such series and of a specified tenor are to be redeemed), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series (so long as such method is
not prohibited by the rules of any stock exchange on which the Securities are
then listed). If less than all of the Securities of such series and of a
specified tenor are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence. The
Trustee shall promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Securities 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 Securities
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities which has been or is to be redeemed.
-70-
SECTION 11.4 Notice of Redemption. Notice of redemption shall be given in
the manner provided in Section 1.6 not less than 30 nor more than 60 days prior
to the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption of
any Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) that, on the Redemption Date, the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any,
(6) that the redemption is for a sinking fund, if such is the case,
(7) that Bearer Securities may be surrendered for payment only at such
place or places outside of the United States, except as otherwise specified
in Section 10.2 and unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished,
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 3.5 or otherwise,
the last date, as determined by the Company, on which such exchanges may be
made, and
(9) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed at the election 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
-71-
of the Company and shall be irrevocable. Failure to give such notice to the
Holder of any Security or any defect in such notice given to the Holder of any
Security shall not affect the validity of the proceedings for any other Security
or part thereof.
SECTION 11.5 Deposit of Redemption Price. Prior to any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money in the Currency in which such
Securities are payable sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities which are to be redeemed on that date.
SECTION 11.6 Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that installments of interest on Bearer Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable only upon
presentation and surrender of coupons for such interest (at an office or agency
located outside the United States except as otherwise provided in Section 10.2)
and provided further, that, unless otherwise specified in Section 3.1,
installments of interest on Registered Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Registered
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Bearer
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupon shall
be payable only upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 10.2. If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.7 Securities Redeemed in Part. Any Registered Security which
is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company
-72-
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Registered Security or Securities of
the same series and of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 12.2. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities. The
Company may (1) deliver Outstanding Securities of a series (other than any
previously called for redemption), together with any unmatured coupons
appertaining to any Bearer Securities of such series and (2) apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.3 Redemption of Securities for Sinking Fund. Not less than 60
days prior to each sinking fund payment date for any series of Securities
(unless a shorter period is satisfactory to the Trustee), the Company will
deliver to the Trustee an Officers' Certificate specifying the amount of the
next ensuing sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by payment of cash
and the portion
-73-
thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 12.2 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 nor more than 60 days before
each such sinking fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date (unless a shorter period is
satisfactory to the Trustee) in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 13.1 Applicability of Article. Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity
shall be repaid in accordance with their terms and (except as otherwise
specified pursuant to Section 3.1 for Securities of such series) in accordance
with this Article.
SECTION 13.2 Repayment of Securities. Each Security which is subject to
repayment in whole or in part at the option of the Holder thereof on a Repayment
Date shall, unless otherwise provided in its terms, be repaid at the applicable
Repayment Price together with interest accrued to such Repayment Date as
specified pursuant to Section 3.1.
SECTION 13.3 Exercise of Option; Notice. Each Holder desiring to exercise
such Holder's option for repayment shall, as conditions to such repayment,
surrender the Security to be repaid in whole or in part together with written
notice of the exercise of such option at any office or agency of the Company in
a Place of Payment, not less than 30 nor more than 45 days prior to the
Repayment Date; provided, however, that surrender of Bearer Securities together
with written notice of exercise of such option shall be made at an office or
agency located outside the United States except as otherwise provided in Section
10.2. Such notice, which shall be irrevocable, shall specify the principal
amount of such Security to be repaid, which shall be equal to the minimum
authorized denomination for such Security or an integral multiple thereof, and
shall identify the Security to be repaid and, in the case of a partial repayment
of the Security, shall specify the denominations of the Security or Securities
of the same series to be issued to the Holder for the portion of the principal
of the Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be accompanied
by all unmatured coupons and all matured coupons in default, such Bearer
Security may be paid after deducting from the Repayment Price an amount equal to
the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the
-74-
Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Repayment Price, such Holder shall be
entitled to receive the amount so deducted without interest thereon; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States except as otherwise provided in
Section 10.2.
The Company shall execute and the Trustee, upon Company Order, shall
authenticate and deliver without service charge to the Holder of any Registered
Security so surrendered a new Registered Security or Securities of the same
series, of any authorized denomination specified in the foregoing notice, in an
aggregate principal amount equal to any portion of the principal of the
Registered Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee, upon Company Order, shall
authenticate and deliver without service charge to the Holder of any Bearer
Security so surrendered a new Registered Security or Securities or new Bearer
Security or Securities (and all appurtenant unmatured coupons and matured
coupons in default) or any combination thereof of the same series of any
authorized denomination or denominations specified in the foregoing notice, in
an aggregate principal amount equal to any portion of the principal of the
Security so surrendered which is not to be paid; provided, however, that the
issuance of a Registered Security therefor shall be subject to applicable laws
and regulations in effect at the time of the exchange; neither the Company, the
Trustee nor the Security Registrar shall issue Registered Securities for Bearer
Securities if it has received an Opinion of Counsel that as a result of such
issuance the Company would suffer adverse consequences under the United States
Federal income tax laws then in effect and the Company has delivered to the
Trustee a Company Order directing the Trustee not to make such issuances
thereafter unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Order to the
Security Registrar.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the repayment of Securities shall relate, in the case
of any Security repaid or to be repaid in part, to the portion of the principal
of such Security which has been or is to be repaid.
SECTION 13.4 Election of Repayment by Remarketing Entities. The Company
may elect with respect to Securities of any series which are repayable at the
option of the Holders thereof before their Stated Maturity, at any time prior to
any Repayment Date to designate one or more Remarketing Entities to purchase, at
a price equal to the Repayment Price, Securities of such series from the Holders
thereof who give notice and surrender their Securities in accordance with
Section 13.3.
SECTION 13.5 Securities Payable on the Repayment Date. Notice of exercise
of the option of repayment having been given and the Securities so to be repaid
having been surrendered as aforesaid, such Securities shall, unless purchased in
accordance with Section 13.4, on the Repayment Date become due and payable at
the price therein specified and from and after the Repayment Date such
Securities shall cease to bear interest and shall be paid on the Repayment
-75-
Date, and the coupons for such interest appertaining to Bearer Securities so to
be repaid, except to the extent provided above, shall be void, unless the
Company shall default in the payment of such price in which case the Company
shall continue to be obligated for the principal amount of such Securities and
shall be obligated to pay interest on such principal amount at the rate borne by
such Securities from time to time until payment in full of such principal
amount.
ARTICLE XIV
MEETINGS OF HOLDERS OF SECURITIES
SECTION 14.1 Purposes for Which Meetings May Be Called.
If Securities of a series are issuable in whole or in part as Bearer
Securities, a meeting of Holders of Securities of such series may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
Act provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 14.2 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series issuable as Bearer Securities for any purpose specified in Section
14.1, to be held at such time and at such place in the Borough of Manhattan, The
City of New York, in the City of Chicago, Illinois or in London as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 1.6, not less than 21 no more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of any
series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 14.1, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, in the City of Chicago, Illinois or
in London for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
-76-
SECTION 14.3 Persons Entitled to Vote at Meetings. To be entitled to vote
at any meeting of Holders of Securities of any series, a Person shall be (1) a
Holder of one or more Outstanding Securities of such series or (2) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 14.4 Quorum; Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent
which this Indenture expressly provides may be given by the Holders of a
majority in principal amount of the Outstanding Securities of a series, the
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairperson
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairperson
of the meeting prior to the adjournment of such adjourned meeting. Notice of
this reconvening of any adjourned meeting shall be given as provided in Section
14.2(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of
majority in principal amount of the Outstanding Securities of that series,
provided, however, that, except as limited by the proviso to Section 9.2, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of a majority in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid only by
the affirmative vote of the Holders of a majority in principal amount of the
Outstanding Securities of that series; and provided, further, that, except as
limited by the proviso to Section 9.2, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other Act
which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of that series. Any
-77-
resolution passed or decision taken at any meeting of Holders of Securities of
any series duly held in accordance with this Section shall be binding on all the
Holders of Securities of such series and the related coupons, whether or not
present or represented at the meeting.
SECTION 14.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 1.4 and the
appointment of any proxy shall be proved in the manner specified in Section 1.4
or, in the case of Bearer Securities, by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Section 1.4 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof specified in
Section 1.4 or other proof.
(A) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
14.2(b), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairperson. A permanent chairperson and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(b) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1.00 principal amount (or the equivalent in
Euro, any other composite currency or a Foreign Currency) of Securities of such
series held or represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairperson of the meeting not to be Outstanding.
The chairperson of the meeting shall have no right to vote, except as a Holder
of a Security of such series or proxy.
(c) Any meeting of Holders of Securities of any series duly called pursuant
to Section 14.2 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at a meeting; and the meeting may be held
as so adjourned without further notice.
SECTION 14.6 Counting Votes and Recording Action of Meetings. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written
-78-
ballots on which shall be subscribed the signatures of the Holders of Securities
of such series or of their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities of such series held or
represented by them. The permanent chairperson of the meeting shall appoint two
inspectors of vote who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in triplicate of all votes cast at the meeting. A
record, at least in triplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was given as provided in Section 14.2 and, if
applicable, Section 14.1. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE XV
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 15.1 Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option by Board Resolution at any time, to have
either Section 15.2 or Section 15.3 applied to the Outstanding Securities of any
series designated pursuant to Section 3.1 as being defeasible, and any related
coupon, pursuant to this Article Fifteen (hereinafter called a "Defeasible
Series"), upon compliance with the conditions set forth below in this Article
Fifteen.
SECTION 15.2 Defeasance and Discharge. Upon the Company's exercise of the
option provided in Section 15.1 to have this Section 15.2 applied to the
Outstanding Securities of any Defeasible Series, the Company shall be deemed to
have been discharged from its obligations with respect to the Outstanding
Securities of such series and any related coupons as provided in this Section on
and after the date the conditions set forth in Section 15.4 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means that
the Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under the Securities of such series and this Indenture
insofar as the Securities of such series are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder (1) the rights of Holders of Securities of such series
to receive, solely from the trust fund described in Section 15.4 and as more
fully set forth in such Section, payments in respect of the principal of (and
premium, if any) and interest on such Securities of such series when payments
are due, (2) the Company's obligations with respect to the Securities of such
series under Sections 3.4, 3.5, 3.6, 10.2, 10.3 and any additional amounts under
Section 10.5, (3) the rights, powers, trusts, duties and immunities of the
Trustee
-79-
hereunder and (4) this Article Fifteen. Subject to compliance with this Article
Fifteen, the Company may exercise its option provided in Section 15.1 to have
this Section 15.2 applied to the Outstanding Securities of any Defeasible Series
notwithstanding the prior exercise of its option provided in Section 15.1 to
have Section 15.3 applied to the Outstanding Securities of such series and any
related coupons.
SECTION 15.3 Covenant Defeasance. Upon the Company's exercise of the
option provided in Section 15.1 to have this Section 15.3 applied to the
Outstanding Securities of any Defeasible Series and any related coupons, (1) the
Company shall be released from its obligations under Section 10.7 and Section
8.1 and (2) the occurrence of any event specified in Sections 5.1(3), 5.1(4)
(with respect to either of Section 10.7 and Section 8.1) and 5.1(7) shall be
deemed not to be or result in an Event of Default, in each case with respect to
the Outstanding Securities of such series as provided in this Section 15.3 on
and after the date the conditions set forth in Section 15.4 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
specified Section (to the extent so specified in the case of Section 5.1(4)),
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture
and the Securities of such series shall be unaffected thereby.
SECTION 15.4 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 15.2 or
Section 15.3 to the Outstanding Securities of any Defeasible Series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 6.9 and agree to comply with the
provisions of this Article Fifteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of Outstanding Securities of such series, (A) money in an amount
(in such Currency in which such Securities and any coupons appertaining
thereto are then specified as payable at Stated Maturity), (B) U.S.
Government Obligations that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or any such
other qualifying Trustee) to pay and discharge, the principal of (and
premium, if any) and interest on the Securities of such series on the
respective Stated Maturities, in accordance with the terms of this
Indenture and the Securities of such series.
-80-
(2) In the case of an election under Section 15.2, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date first set forth hereinabove,
there has been a change in the applicable Federal income tax law, in either
case (A) or (B) to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities of such series will
not recognize gain or loss for Federal income tax purposes as a result of
the deposit, Defeasance and discharge to be effected with respect to the
Securities of such series and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case
if such deposit, Defeasance and discharge were not to occur.
(3) In the case of an election under Section 15.3, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize
gain or loss for Federal income tax purposes as result of the deposit and
Covenant Defeasance to be effected with respect to the Securities of such
series and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities of such series, if then
listed on any securities exchange, will not be delisted as a result of such
deposit.
(5) No Event of Default or event that (after notice of lapse of time
or both) would become an Event of Default shall have occurred and be
continuing at the time of such deposit or, with regard to any Event of
Default or any such event specified in Sections 5.1(5) and (6), at any time
on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after
such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act.
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such
trust shall be qualified or exempt from regulation thereunder.
-81-
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 15.5 Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 10.3, all money and U.S. Government Obligations (including
the proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section 15.5 and Section 15.6, the Trustee and any
such other trustee are referred to collectively as the "Trustee") pursuant to
Section 15.4 in respect of the Securities of any Defeasible Series and any
related coupons shall be held in trust and applied by the Trustee, in accordance
with the provisions of the Securities and the related coupons, if any, of such
series and this Indenture, to the payment, either directly or through any such
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of Securities of such series, of all sums
due and to become due thereon in respect of principal and any premium and
interest, but money so held in trust need not be segregated from other funds
except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section
3.1, if, after a deposit referred to in Section 15.4(a) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 3.12(b) or the terms of such Security to
receive payment in a Currency other than that in which the deposit pursuant to
Section 15.4(a) has been made in respect of such Security, or (b) a Conversion
Event occurs as contemplated in Section 3.12(d) or 3.12(e) or by the terms of
any Security in respect of which the deposit pursuant to Section 15.4(a) has
been made, the indebtedness represented by such Security and any coupons
appertaining thereto shall be deemed to have been, and will be, fully discharged
and satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
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 15.4 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 of Outstanding Securities.
Anything in this Article Fifteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 15.4 with respect to Securities of any Defeasible Series that, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof that would
-82-
then be required to be deposited to effect an equivalent Defeasance or Covenant
Defeasance with respect to the Securities of such series.
SECTION 15.6 Reinstatement. If the Trustee or the Paying Agent is unable
to apply any money in accordance with this Article Fifteen with respect to the
Securities of any series by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to this Article Fifteen with respect to Securities of such
series until such time as the Trustee or Paying Agent is permitted to apply all
money held in trust pursuant to Section 15.5 with respect to Securities of such
series in accordance with this Article Fifteen; provided, however, that if the
Company makes any payment of principal of (or premium, if any) or interest on
any Security of such series following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of Securities of such
series to receive such payment from the money so held in trust.
ARTICLE XVI
SUBORDINATION OF SECURITIES
SECTION 16.1 Securities Subordinate to Senior Indebtedness. The Company
covenants and agrees, and each Holder of a Security by such Holder's acceptance
thereof likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article Sixteen, the indebtedness represented by
the Securities and the payment of the principal of (and premium, if any) and
interest, if any, in respect of each and all of the Securities are hereby
expressly made subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness.
SECTION 16.2 Payment Over of Proceeds Upon Dissolution, Etc. Upon any
distribution of assets of the Company in the event of
(a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, relative to the Company or to its creditors, as such, or to its
assets, or
(b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or
(A) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company, then and in such
event
(i) the holders of Senior Indebtedness shall be entitled to
receive payment in full of all amounts due or to become due on or in
respect of all Senior
-83-
Indebtedness, or provision shall be made for such payment in cash,
before the Holders of the Securities of a series are entitled to
receive any payment on account of the principal (and premium, if any),
or interest, if any, in respect of the Securities of that series; and
(ii) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, by set-off
or otherwise, to which the Holders or the Trustee would be entitled
but for the provisions of this Article Sixteen, including any such
payment or distribution which may be payable or deliverable by reason
of the payment of any other Debt of the Company being subordinated to
the payment of the Securities of a series, shall be paid by the
liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts remaining unpaid on account
of the principal of (and premium, if any) and interest on the Senior
Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid,
after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this Section
16.2, the Trustee or the Holder of any Security of a series shall receive any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of any
other Debt of the Company being subordinated to the payment of the Securities of
that series, before all Senior Indebtedness is paid in full or payment thereof
provided for, and if such fact shall then have been made known to the Trustee,
or, as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, Custodian, assignee, agent or other
person making payment or distribution of assets of the Company for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness.
For purposes of this Article Sixteen only, the words "Cash, Property or
Securities" shall not be deemed to include shares of Capital Stock of the
Company as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinated, at least to the extent provided in this Article
Sixteen with respect to the Securities of the applicable series, to the payment
of all Senior Indebtedness which may at the time be outstanding; provided,
however, that (i) Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment,
-84-
and (ii) the rights of the holders of the Senior Indebtedness are not, without
the consent of such holders, altered by such reorganization or readjustment.
The consolidation of the Company with, or the merger of the Company into,
another person or the liquidation or dissolution of the Company following the
conveyance or transfer of all or substantially all of its assets to another
person upon the terms and conditions set forth in Article Eight shall not be
deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshalling of assets and liabilities of the Company
for the purposes of this Section 16.2 if the person formed by such consolidation
or into which the Company is merged or the person which acquires by conveyance
or transfer all or substantially all of the assets of the Company, as the case
may be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article Eight.
SECTION 16.3 Acceleration of Securities. In the event that any Securities
of a series are declared due and payable before their Stated Maturity pursuant
to Section 5.2, then and in such event the Company shall promptly notify holders
of Senior Indebtedness of such acceleration. The Company may not pay the
Securities of that series until 120 days have passed after such acceleration
occurs and may thereafter pay the Securities of that series if this Article
Sixteen permits the payment at that time. In the event that, notwithstanding the
foregoing, the Company shall make any payment to the Trustee or the Holder of
any Securities prohibited by the foregoing provisions of this Section 16.3, and
if such facts then shall have been known or thereafter shall have been made
known to the Trustee as provided in Section 16.10 or such Holder, as the case
may be, pursuant to the terms of this Indenture, then and in such event such
payment shall be paid over and delivered forthwith to the Company by or on
behalf of the person holding such payment for the benefit of the holders of
Senior Indebtedness.
The provisions of this Section 16.3 shall not apply to any payment with
respect to which Section 16.2 would be applicable.
SECTION 16.4 Default on Senior Indebtedness. The Company may not make any
payment of the principal (and premium, if any) or interest, if any, in respect
of the Securities of a series and may not acquire any Securities of that series
for cash or property if:
(1) a default on Senior Indebtedness occurs and is continuing that
permits holders of such Senior Indebtedness to accelerate its maturity; and
(2) the default is the subject of judicial proceedings or the Company
receives a notice of default thereof from any person who may give such
notice pursuant to the instrument evidencing or document governing such
Senior Indebtedness. If the Company receives any such notice, then a
similar notice received within nine months thereafter relating to the same
default on the same issue of Senior Indebtedness shall not be effective for
purposes of this Section 16.4.
-85-
The Company may resume payments on the Securities of that series and may
acquire Securities of that series if and when:
i) the default is cured or waived; or
ii) 120 or more days pass after the receipt by the Company of
the notice described in clause (2) above and the default is
not then the subject of judicial proceedings; and
this Article Sixteen otherwise permits the payment or acquisition at that time.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section 16.4, and if such fact then shall have been
known or thereafter shall have been made known to the Trustee or such Holder, as
the case may be, pursuant to the terms of this Indenture, then and in such event
such payment shall be paid over and delivered forthwith to the Company by or on
behalf of the person holding such payment for the benefit of the holders of the
Senior Indebtedness.
Nothing contained in this Article Sixteen or elsewhere in this Indenture or
in any of the Securities shall prevent the conversion by a Holder of any
Securities for Capital Stock in accordance with any provisions for conversion of
such Securities for Capital Stock in the event of an occurrence of the events
described in clauses (1) and (2) of this Section 16.4.
The provisions of this Section 16.4 shall not apply to any payment with
respect to which Section 16.2 would be applicable.
SECTION 16.5 Payment Permitted If No Default. Nothing contained in this
Article Sixteen or elsewhere in this Indenture or in any of the Securities of a
series shall prevent (a) the Company, at any time except during the pendency of
any case, proceeding, dissolution, liquidation or other winding up, assignment
for the benefit of creditors or other marshalling of assets and liabilities of
the Company referred to in Section 16.2 or under the conditions described in
Section 16.3 or 16.4, from making payments at any time of the principal (and
premium, if any), or interest, if any, as the case may be, in respect of the
Securities of that series, or (b) the application by the Trustee or the
retention by any Holder of any money deposited with it hereunder to the payment
of or on account of the principal (and premium, if any), or interest, if any, as
the case may be, in respect of the Securities of that series if the Trustee did
not have, at the time provided in the proviso to the first paragraph of Section
16.10, notice that such payment would have been prohibited by the provisions of
this Article Sixteen.
SECTION 16.6 Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities of a series shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article Sixteen to the rights of the holders of such
-86-
Senior Indebtedness to receive payments or distributions of cash, property or
securities applicable to the Senior Indebtedness until the principal (and
premium, if any) or interest, if any, as the case may be, in respect of the
Securities of that series shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities of that series or the Trustee would be entitled except for the
provisions of this Article Sixteen, and no payments pursuant to the provisions
of this Article Sixteen to the Company or to the holders of Senior Indebtedness
by Holders of the Securities of that series or the Trustee, shall, as between
the Company, its creditors other than holders of Senior Indebtedness and the
Holders of the Securities of that series, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 16.7 Provisions Solely to Define Relative Rights. The provisions
of this Article Sixteen are and are intended solely for the purpose of defining
the relative rights of the Holders of the Securities of each series, on one
hand, and the holders of Senior Indebtedness, on the other hand. Nothing
contained in this Article Sixteen or elsewhere in this Indenture or in the
Securities of a series is intended to or shall
(a) impair, as between the Company and the Holders of the Securities of
that series, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities of that series the principal (and
premium, if any) and interest, if any, as the case may be, in respect of the
Securities of that series as and when the same shall become due and payable in
accordance with the terms of the Securities of that series and this Indenture
and which, subject to the rights under this Article Sixteen of the holders of
Senior Indebtedness, is intended to rank equally with all other general
obligations of the Company; or
(b) affect the relative rights against the Company of the Holders of the
Securities of that series and creditors of the Company other than holders of
Senior Indebtedness; or
(C) prevent the Trustee or the Holder of any Security of that series
from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this
Article Sixteen of the holders of Senior Indebtedness to receive cash,
property or securities otherwise payable or deliverable to the Trustee or
such Holder.
SECTION 16.8 Trustee to Effectuate Subordination. Each Holder of a
Security by such Holder's acceptance thereof authorizes and directs the Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article Sixteen and appoints
the Trustee such Holder's attorney-in-fact for any and all such purposes.
SECTION 16.9 No Waiver of Subordination Provisions. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the
-87-
Company with the terms, provisions and covenants of this Indenture, regardless
of any knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and, from time to time, without
the consent of, or notice to, the Trustee or the Holders of the Securities of
that series, without incurring responsibility to the Holders of the Securities
of that series and without impairing or releasing the subordination provided in
this Article Sixteen or the obligations hereunder of the Holders of the
Securities of that series to the holders of such Senior Indebtedness, do any one
or more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, such Senior Indebtedness, or
otherwise amend or supplement in any manner such Senior Indebtedness or any
instrument evidencing the same or any agreement under which such Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise dispose
of any property pledged, mortgaged or otherwise securing such Senior
Indebtedness; (iii) release any person liable in any manner for the collection
of such Senior Indebtedness; and (iv) exercise or refrain from exercising any
rights against the Company or any other person.
SECTION 16.10 Notice to Trustee. The Company shall give prompt written
notice to the Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the Securities of a
series. Failure to give such notice shall not affect the subordination of the
Securities of that series to Senior Indebtedness. Notwithstanding the provisions
of this Article Sixteen or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities of a series, unless and until the Trustee shall have received written
notice thereof at the address specified in Section 1.1 from the Company or a
holder of Senior Indebtedness or from any trustee or agent therefor; and, prior
to the receipt of any such written notice, the Trustee, subject to the
provisions of Article Six, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if a Trust Officer of the Trustee
shall not have received, at least three Business Days prior to the date upon
which by the terms hereof any such money may become payable for any purpose
(including, without limitation, the payment of the principal (and premium, if
any), or interest, if any, as the case may be, in respect of any Security of
that series), the notice with respect to such money provided for in this Section
16.10, then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within three
Business Days prior to such date.
Subject to the provisions of Article Six, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a person representing himself
to be a holder of Senior Indebtedness (or a trustee or agent on behalf of such
holder) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee or agent on behalf of any such holder). In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to
-88-
this Article Sixteen, the Trustee may request such person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such person, the extent to which such person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such person under this Article Sixteen, and if such evidence is not
furnished, the Trustee may defer any payment which it may be required to make
for the benefit of such person pursuant to the terms of this Indenture pending
judicial determination as to the right of such person to receive such payment.
SECTION 16.11 Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of the Company referred to in
this Article Sixteen, the Trustee, subject to the provisions of Article Six, and
the Holders of the Securities of a series shall be entitled to conclusively rely
upon any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, Custodian,
receiver, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities of that series, for the purpose of ascertaining the persons entitled
to participate in such payment or distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Sixteen.
SECTION 16.12 Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if the Trustee
shall in good faith mistakenly pay over or distribute to Holders of Securities
of that series or to the Company or to any other person cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article Sixteen or otherwise. The Trustee shall not be charged
with knowledge of the existence of Senior Indebtedness or of any facts that
would prohibit any payment hereunder unless a Trust Officer of the Trustee shall
have received notice to that effect at the address of the Trustee set forth in
Section 1.1. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article Sixteen and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.
SECTION 16.13 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article Sixteen with respect to
any Senior Indebtedness which may at any time be held by it, to the same extent
as any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article Sixteen shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.7.
-89-
SECTION 16.14 Article Sixteen Applicable to Paying Agents. In case at any
time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this Article
Sixteen shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article
Sixteen in addition to or in place of the Trustee; provided, however, that
Sections 16.10 and 16.12 shall not apply to the Company or any Affiliate of the
Company if it or such Affiliate acts as Paying Agent.
-90-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
MOTOROLA, INC.
By______________________________
Attest:___________________
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Trustee
By______________________________
Attest:___________________
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇ the _________. day of _______, before me personally came _____________,
to me known, who, being by me duly sworn, did depose and say that he is
_____________ of Motorola, Inc., one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇ the _______ day of _______, before me personally came_________, to me
known, who, being by me duly sworn, did depose and say that he is _____________
of ▇▇▇▇▇▇ Trust and Savings Bank, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
-92-
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States persons(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 1.165-
12(c)(1)(v) are herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof(and in either case(a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise Motorola, Inc. or its agent that such financial institution will comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7), and, in addition, if the
owner is a United States or foreign financial institution described in clause
(iii) above (whether or not also described in clause(i) or (ii)), this is to
further certify that such financial institution has not acquired the Securities
for purposes of resale directly or indirectly to a United States person or to a
person within the United States.
As used herein, "UNITED STATES" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction (including the
Commonwealth of Puerto Rico).
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
-93-
This certificate excepts and does not relate to [U.S.$]___________ of such
interest in the above-captioned Securities in respect of which we are not able
to certify and as to which we understand an exchange for an interest in a
permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: , 19__
[To be dated no earlier than the 15th day
prior to (i) the Exchange Date or (ii) the
relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Name of Person Making Certification]
___________________________________________
(Authorized Signatory)
Name:
Title:
-▇▇-
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] principal amount
of the above-captioned Securities (i) is owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise Motorola, Inc. or its
agent that such financial institution will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)
(i)(D)(7)), and, to the further effect, that financial institutions described in
clause (iii) above (whether or not also described in clause (i) or (ii)) have
certified that they have not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction (including the
Commonwealth of Puerto Rico).
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary Global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of
-95-
the part submitted herewith for exchange (or, if relevant, collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ______________, 19__
[To be dated no earlier than the Exchange
Date or the relevant Interest Payment Date
occurring prior to the Exchange Date, as
applicable]
[▇▇▇▇▇▇ Guaranty Trust Company of
New York, Brussels Office,] as
Operator of the Euroclear System [
Cedel S.A.]
By ------------------------------
-96-