MANOR CARE, INC.
and
CHASE MANHATTAN BANK
as Trustee
--------------------
INDENTURE
Dated as of November [ ], 1996
--------------------
Providing for the Issuance of
Debt Securities in Series
MANOR CARE, INC.
Reconciliation and Tie Between Trust Indenture Act of 1939
and Indenture Provisions*
Trust Indenture
Act Section Indenture Section
ss. 310(a)(1) ................................... 709
(a)(2) ................................... 709
(a)(3) ................................... Not Applicable
(a)(4) ................................... Not Applicable
(b) ................................... 708
................................... 710
ss. 311(a) ................................... 713(a)
713(c)
(b) ................................... 713(b)
(b)(2) ................................... 803(a)(2)
................................... 803(b)
ss. 312(a) ................................... 801
802(a)
(b) ................................... 802(b)
(c) ................................... 802(c)
ss. 313(a) ................................... 803(a)
(b) ................................... 803(b)
(c) ................................... 803(d)
(d) ................................... 803(c)
ss. 314(a) ................................... 804
(b) ................................... Not Applicable
(c)(1) ................................... 102
(c)(2) ................................... 102
(c)(3) ................................... Not Applicable
(d) ................................... Not Applicable
(e) ................................... 102
ss. 315(a) ................................... 701(a)
(b) ................................... 702
803(a)(6)
(c) ................................... 701(b)
(d) ................................... 701(c)
(d)(1) ................................... 701(a)
(d)(2) ................................... 701(c)(2)
(d)(3) ................................... 701(c)(3)
--------
* This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
2
Trust Indenture
Act Section Indenture Section
(e) ................................... 614
ss. 316(a) ................................... 101
(a)(1)(A) ................................... 602
612
(a)(1)(B) ................................... 613
(a)(2) ................................... Not Applicable
(b) ................................... 608
ss. 317(a)(1) ................................... 603
(a)(2) ................................... 604
(b) ................................... 1103
ss. 318(a) ................................... 107
TABLE OF CONTENTS(1)
Page
ARTICLE ONE
Definitions and Other Provisions of General Application..... 1
SECTION 101. Definitions................................................. 1
SECTION 102. Compliance Certificates and Opinions........................ 11
SECTION 103. Form of Documents Delivered to Trustee...................... 12
SECTION 104. Acts of Holders. ........................................... 12
SECTION 105. Notices, etc. to Trustee and Company........................ 14
SECTION 106. Notice to Holders; Waiver................................... 14
SECTION 107. Conflict with Trust Indenture Act........................... 16
SECTION 108. Effect of Headings and Table of Contents.................... 16
SECTION 109. Successors and Assigns...................................... 16
SECTION 110. Separability Clause......................................... 16
SECTION 111. Benefits of Indenture....................................... 16
SECTION 112. Governing Law............................................... 16
SECTION 113. Legal Holidays.............................................. 16
SECTION 114. Moneys of Different Currencies To Be Segregated............. 16
SECTION 115. Payment To Be in Proper Currency............................ 16
SECTION 116. Language of Notices, etc.................................... 17
SECTION 117. Changes in Exhibits......................................... 17
ARTICLE TWO
Issuance of Securities...................................... 17
SECTION 201. Creation of Securities in Amount Unlimited.................. 17
SECTION 202. Documents Required for Issuance of Each Series of Securities
Other than Medium-Term Debt Securities.................... 17
SECTION 203. Form of Securities Other than Medium-Term Debt Securities... 22
ARTICLE THREE
Issuance of Medium-Term Debt Securities..................... 22
SECTION 301. Documents Required for Issuance of Each Series of
Medium-Term Debt Securities............................... 22
SECTION 302. Form of Medium-Term Debt Securities......................... 25
ARTICLE FOUR
--------
1 This table of contents shall not, for any purpose, be deemed to be part of
the Indenture.
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Page
The Securities................................................ 25
SECTION 401. Form and Denomination......................................... 25
SECTION 402. Execution, Delivery, Dating and Authentication................ 25
SECTION 403. Temporary Securities.......................................... 27
SECTION 404. Registration, Registration of Transfer and Exchange........... 29
SECTION 405. Mutilated, Destroyed, Lost and Stolen Securities.............. 32
SECTION 406. Payment of Interest; Interest Rights Preserved................ 33
SECTION 407. Persons Deemed Owners......................................... 34
SECTION 408. Cancellation.................................................. 34
SECTION 409. Computation of Interest....................................... 35
SECTION 410. Currency and Manner of Payment in Respect of Securities....... 35
SECTION 411. Securities in Global Form..................................... 40
SECTION 412. Registered Global Notes....................................... 41
ARTICLE FIVE
Satisfaction and Discharge.................................... 43
SECTION 501. Termination of Company's Obligations.......................... 43
SECTION 502. Application of Trust Money.................................... 44
SECTION 503. Repayment to Company.......................................... 44
SECTION 504. Reinstatement................................................. 45
SECTION 505. Definitions................................................... 45
ARTICLE SIX
Remedies...................................................... 46
SECTION 601. Events of Default............................................. 46
SECTION 602. Acceleration.................................................. 47
SECTION 603. Other Remedies................................................ 48
SECTION 604. Waiver of Existing Defaults................................... 48
SECTION 605. Control by Majority........................................... 48
SECTION 606. Limitation on Suits........................................... 49
SECTION 607. Rights of Holders To Receive Payments......................... 49
SECTION 608. Collection Suit by Trustee.................................... 49
SECTION 609. Trustee May File Proofs of Claim.............................. 49
SECTION 610. Priorities.................................................... 50
SECTION 611. Undertaking for Costs......................................... 50
SECTION 613. Waiver of Stay or Extension Laws.............................. 50
ARTICLE SEVEN
The Trustee................................................... 51
SECTION 701. Duties of Trustee............................................. 51
SECTION 702. Rights of Trustee............................................. 52
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Page
SECTION 703. Individual Rights of Trustee.................................. 52
SECTION 704. Trustee's Disclaimer.......................................... 52
SECTION 705. Notice of Defaults............................................ 52
SECTION 706. Reports by Trustee to Holders................................. 53
SECTION 707. Compensation and Indemnity.................................... 53
SECTION 708. Replacement of Trustee........................................ 53
SECTION 709. Successor Trustee by Merger, etc.............................. 55
SECTION 710. Eligibility; Disqualification................................. 55
SECTION 711. Preferential Collection of Claims Against Company............. 55
SECTION 712. Judgment Currency............................................. 55
SECTION 713. Appointment of Authenticating Agent........................... 56
ARTICLE EIGHT
Holders' Lists and Reports by Trustee and Company............. 58
SECTION 801. Communication by Holders with Other Holders................... 58
SECTION 802. Reports by Trustee............................................ 58
SECTION 803. Reports by Company............................................ 58
ARTICLE NINE
Consolidation, Merger, Conveyance or Transfer................. 58
SECTION 901. Company May Consolidate, etc., Only on Certain Terms.......... 58
SECTION 902. Successor Corporation Substituted............................. 59
ARTICLE TEN
Supplemental Indentures...................................... 59
SECTION 1001. Supplemental Indentures Without Consent of Holders........... 59
SECTION 1002. Supplemental Indentures with Consent of Holders.............. 60
SECTION 1003. Execution of Supplemental Indentures......................... 62
SECTION 1004. Effect of Supplemental Indentures............................ 62
SECTION 1005. Conformity with Trust Indenture Act.......................... 62
SECTION 1006. Reference in Securities to Supplemental Indentures........... 62
ARTICLE ELEVEN
Covenants.................................................... 63
SECTION 1101. Payment of Principal, Premium and Interest................... 63
SECTION 1102. Maintenance of Office or Agency.............................. 63
SECTION 1103. Money for Securities Payments To Be Held in Trust............ 64
SECTION 1104. Restrictions on Secured Debt................................. 65
SECTION 1105. Restrictions on Sale and Leaseback Transactions.............. 67
SECTION 1106. Limitation on Affiliate Transactions......................... 68
SECTION 1107. Statement by Officers as to Default.......................... 68
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Page
SECTION 1108. Waiver of Certain Covenants.................................. 69
SECTION 1109. Additional Amounts........................................... 69
ARTICLE TWELVE
Redemption of Securities..................................... 70
SECTION 1201. Applicability of Article..................................... 70
SECTION 1202. Election To Redeem; Notice to Trustee........................ 70
SECTION 1203. Selection by Trustee of Securities To Be Redeemed............ 70
SECTION 1204. Notice of Redemption......................................... 70
SECTION 1205. Deposit of Redemption Price.................................. 71
SECTION 1206. Securities Payable on Redemption Date........................ 71
SECTION 1207. Securities Redeemed in Part.................................. 72
ARTICLE THIRTEEN
Sinking Funds................................................ 72
SECTION 1301. Applicability of Article..................................... 72
SECTION 1302. Satisfaction of Sinking Fund Payments with Securities........ 73
SECTION 1303. Redemption of Securities for Sinking Fund.................... 73
EXHIBIT A Form of Debt Securities
EXHIBIT B.1 Form of Certificate to be given by Person entitled to
received Bearer Security
EXHIBIT B.2 Form of Certificate to be given by Euro-clear and CEDEL S.A. in
connection with the Exchange of a portion of Temporary Global
Security
EXHIBIT B.3 Form of Certificate to be given by Euro-clear and CEDEL S.A. to
obtain Interest prior to an Exchange Date
EXHIBIT B.4 Form of Certificate to be given by Beneficial Owners to obtain
Interest prior to an Exchange Date
EXHIBIT B.5 Form of Confirmation to be sent to Purchasers of Bearer
Securities
-v-
INDENTURE dated as of November [ ], 1996, between MANOR CARE, 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 The Chase Manhattan Bank, as
Trustee (herein called the "Trustee"), the office of the Trustee at which at the
date hereof its corporate trust business is principally administered being ▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
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 unsecured
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 covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. 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 Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(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 of America at the date of such
computation; and
(4) 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 within an Article of this Indenture,
may be defined in that Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"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, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Affiliate Transaction" has the meaning specified in Section 1106.
"Applicable Percentage" means (i) 15%, if the aggregate principal
amount of Securities then Outstanding exceeds $100,000,000, (ii) 20%, if the
aggregate principal amount of Securities then Outstanding exceeds $50,000,000
but is less than or equal to $100,000,000 or (iii) 25%, if the aggregate
principal amount of Securities Outstanding is less than or equal to $50,000,000.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable and at any date as of which the amount thereof is
to be determined, the lesser of (i) the fair value of the property subject to
such lease (as determined in good faith by the chief financial or accounting
officer of the Company) and (ii) the total net amount of rent required to be
paid by such Person under such lease during the remaining primary term thereof,
discounted from the respective due dates thereof to such date at the weighted
average interest borne by the particular series of 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 713 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper of general circulation in the
place of publication, printed in the official language of the country of
publication and customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays.
3
Whenever successive weekly publications in an Authorized Newspaper are
authorized or required hereunder, they may be made (unless otherwise expressly
provided herein) on the same or different days of the week and in the same or
different Authorized Newspapers.
"Bearer Security" means any Security which is not registered in the
Security Register as to both principal and interest (including without
limitation any Security in temporary or definitive global bearer form).
"Board of Directors" means either the board of directors of the
Company, any officer of the Company duly authorized to act in the name of or on
behalf of that board or any committee consisting of one or more persons, who
need not be directors, duly authorized to act in the name of or on behalf 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.
"Business Day", when used with respect to any Place of Payment or
place of publication, means each day on which commercial banks and foreign
exchange markets settle payments in such Place of Payment or place of
publication, or as otherwise specified for a series of Securities pursuant to
Section 202 or Section 301, as the case may be. Unless otherwise specified for a
series of Securities pursuant to Section 202 or Section 301, as the case may be,
when used with respect to Securities bearing interest at a rate or rates
determined by reference to London interbank offered notes for deposits in U.S.
Dollars, "Business Day" shall exclude any day on which commercial banks and
foreign exchange markets do not settle payments in London.
"Capital Stock", as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of upon the voluntary or involuntary liquidation, dissolution
or winding up of such corporation.
"Commission" means the Securities and Exchange Commission, as from
time to constituted, created under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties from time
to time assigned to it under the Trust Indenture Act, then the body performing
such duties at such time.
"Common Depositary" has the meaning specified in Section 403.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
4
"Company Request", "Request of the Company", "Company Order" or "Order
of the Company" means a written request or order signed in the name of the
Company by an Officer of the Company and delivered to the Trustee.
"Component Currency" has the meaning specified in Section 410(i).
"Consolidated Net Assets" means, with respect to any Person as of any
date of determination, the total assets of such person and its Subsidiaries on a
consolidated basis, less current liabilities of such Person and its Subsidiaries
on a consolidated basis as of such date, all computed in accordance with
generally accepted accounting principles.
"Conversion Date" has the meaning specified in Section 410(e).
"Conversion Rate" has the meaning specified in Section 712.
"Corporate Trust Office" means the office of the Trustee in New York,
New York, at which at any particular time its corporate trust business shall be
administered, which office at the date hereof is ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, except that with respect to the presentation of Securities
(or Coupons, if any, representing an installment of interest) for payment or for
registration of transfer and exchange, such term shall mean the office or the
agency of the Trustee in said city at which at any particular time its corporate
agency business shall be conducted.
"corporation" includes corporations, associations, companies and
business trusts.
"Coupon" or "coupon" means any interest coupon appertaining to a
Bearer Security.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any applicable Federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect.
"Debt" means indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section 406.
"Discharged" has the meaning specified in Section 505.
"Dollar" means the coin or currency of the United States of America as
at the time of payment is legal tender for the payment of public and private
debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 410(h).
5
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 410(g).
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Euro-clear" means the operator of the Euro-clear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 601.
"Exchange Rate Agent" means the entity appointed by the Company
pursuant to Section 104(e). Unless otherwise specified as contemplated by
Section 202 or Section 301, as the case may be, the Luxembourg Stock Exchange
shall act as Exchange Rate Agent for purposes of Section 410 in the case of each
series of Securities listed on the Luxembourg Stock Exchange.
"Exchange Rate Officers' Certificate" means a telecopy or tested telex
or a certificate setting forth (i) the applicable Official Currency Unit
Exchange Rate and (ii) the Dollar or Foreign Currency or currency unit amounts
of principal, premium, if any, and interest, if any, respectively (on an
aggregate basis and on the basis of a Security having a principal amount of
1,000 units in the relevant currency or currency unit), payable on the basis of
such Official Currency Unit Exchange Rate, sent (in the case of a telecopy or
telex) or executed (in the case of a certificate) by the Controller or any
Assistant Controller or by the Treasurer or any Assistant Treasurer of the
Company and delivered to the Trustee; such telecopy, tested telex or certificate
need not comply with Section 102.
"Existing Mortgages" means, with respect to any series of Securities,
Mortgages on property or assets of the Company or any Subsidiary of the Company
existing on, or provided for in agreements existing on, the Issue Date for such
series.
"Finance Subsidiary" means a Subsidiary of the Company engaged
primarily in pricing or assisting in financing the acquisition or disposition of
products of the Company or of a Subsidiary of the Company by dealers,
distributors or customers.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"Foreign Government Securities" has the meaning specified in Section
505.
"Foreign Subsidiary" means a Subsidiary of the Company which is
incorporated or organized in a jurisdiction outside the United States and any
Subsidiary of such a Subsidiary.
6
"Funded Debt" means (a) all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the determination is
made or having a maturity of 12 months or less but which is by its terms
renewable or extendible beyond 12 months from such date at the option of the
borrower and (b) rental obligations payable more than 12 months from such date
under leases which are capitalized in accordance with generally accepted
accounting principles (such rental obligations to be included as Funded Debt at
the amount so capitalized and to be included for the purposes of the definition
of Consolidated Net Assets both as an asset and as Funded Debt at the amount so
capitalized).
"Holder" or "holder" means, with respect to a Registered Security, the
Person in whose name at the time a particular Registered Security is registered
in the Security Register and, with respect to a Bearer Security and/or a Coupon,
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
and shall include the terms of particular series of Securities established as
contemplated by Section 202 or Section 301, as the case may be.
"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.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Issue Date" means, with respect to any series of Securities, the
first date on which Securities of such series are issued under this Indenture.
"Market Exchange Rate" has the meaning specified in Section 410(i).
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment 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.
"Medium-Term Debt Securities" has the meaning specified in Section
301.
"Medium-Term Debt Securities Certificate" shall mean a certificate
signed by an Officer of the Company, or any other employee of the Company
designated by a Board Resolution as having the authority to deliver a
Medium-Term Debt Securities Certificate hereunder.
"Mortgage" means any mortgage, pledge, lien, encumbrance, charge or
security interest of any kind.
7
"Non-Recourse Debt" means Debt or that portion of Debt (i) as to which
neither the Company nor its Subsidiaries (other than a Non-Recourse Subsidiary)
(A) provide credit support (including any undertaking, agreement or instrument
which would constitute Debt), (B) are directly or indirectly liable or (C)
constitute the lender and (ii) in respect of which a default (including any
rights which the holders thereof may have to take enforcement action against a
Non-Recourse Subsidiary) would not permit (upon notice, lapse of time or both)
any holder of any other Debt of the Company or its Subsidiaries (including any
Non-Recourse Subsidiary) to declare a default on such other Debt or cause a
payment thereof to be accelerated or payable prior to its Stated Maturity.
"Non-Recourse Subsidiary" means a Subsidiary of the Company which (i)
has not acquired any assets (other than cash) directly or indirectly from the
Company or any Subsidiary of the Company, (ii) only owns assets acquired after
the Issue Date and on or prior to the date such entity becomes a Subsidiary of
the Company and (iii) has no Debt other than Non-Recourse Debt.
"Officer" means the Chairman of the Board, the President, any Senior
Vice President, the Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer, or an Officer and an Assistant
Secretary of the Company, and delivered to the Trustee. Each such Officers'
Certificate shall contain the statements provided in Section 102 if and to the
extent required by the provisions of such Section.
"Official Currency Unit Exchange Rate" means, with respect to any
payment to be made hereunder, the exchange rate between the relevant currency
unit and the currency or currency unit of payment calculated by the Exchange
Rate Agent for the Securities of the relevant series (in the case of ECU,
reported by the Commission of the European Communities and on the date hereof
based on the rates in effect at 2:30 p.m., Brussels time, on the exchange
markets of the Component Currencies of ECU), on the Business Day (in the city in
which such Exchange Rate Agent has its principal office) immediately preceding
delivery of any Exchange Rate Officers' Certificate.
"Opinion of Counsel" means a written opinion of legal counsel for the
Company, who may be an employee of the Company. Each Opinion of Counsel shall
contain the statements provided in Section 102 if and to the extent required by
the provisions of such Section.
"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 602.
"Outstanding" or "outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
8
(i) Securities theretofore canceled by the Trustee or delivered
or deemed delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount and in the required currency or currency unit 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; 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; and
(iii) Securities which have been paid pursuant to Section 405 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 whether a
quorum is present at a meeting of Holders of Outstanding Securities or the
number of votes entitled to be cast by each Holder of a Security in respect of
such Security at any such meeting, (i) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 602, (ii) the principal amount of a Security
denominated in a Foreign Currency or currency unit shall be the Dollar
equivalent obtained by converting the specified Foreign Currency or currency
unit into Dollars at the Market Exchange Rate on the date of such determination
(or, in the case of a Security denominated in a currency unit for which there is
no Market Exchange Rate, the Dollar equivalent obtained by adding together the
results obtained by converting the Specified Amount of each Component Currency
into Dollars at the Market Exchange Rate for each such Component Currency on the
date of such determination) of the principal amount (or, in the case of an
Original Issue Discount Security, of the amount determined as provided in (i)
above) of such Security, and (iii) 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
parties 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.
9
"Paying Agent" means the Trustee or any other Person authorized by the
Company to pay the principal of (and premium, if any) or interest, if any, on
any Securities on behalf of the Company.
"Person" or "person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, 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 premium, if any)
and interest, if any, on the Securities of that series are payable as specified
in accordance with Section 202 or Section 301, as the case may be.
"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 purpose of this definition, any Security
authenticated and delivered under Section 405 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 real estate or warehouse owned or
leased by the Company or any Restricted Subsidiary of the Company which is
located within the United States of America and the gross book value (including
related land and improvements thereon and all machinery and equipment included
therein without deduction of any depreciation reserves) of which on the date as
of which the determination is being made exceeds 2% of Consolidated Net Assets,
other than (a) any property which in the opinion of the Board of Directors is
not of material importance to the total business conducted by the Company as an
entirety or (b) any portion of a particular property which is found by the Board
of Directors not to be of material importance to the use or operation of such
property.
"Realty Subsidiary" means a Subsidiary of the Company engaged
primarily in the development and sale or financing of real property.
"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, in the currency or currency unit in which such
Security is payable, at which it is to be redeemed pursuant to this Indenture.
"Registered Global Note" has the meaning specified in Section 412.
"Registered Security" means any Security registered in the Security
Register (including without limitation any Security in temporary or definitive
global registered form).
10
"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 202 or Section 301, as the case may be,
which date shall be, unless otherwise specified pursuant to Section 202 or
Section 301, as the as the case may be, the fifteenth day preceding such
Interest Payment Date, whether or not such day shall be a Business Day.
"Required Currency" has the meaning specified in Section 115.
"Responsible Trust Officer", when used with respect to the Trustee,
means the chairman or any vice chairman of the board of directors, the chairman
or any vice chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, any
assistant vice president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, the cashier, any assistant cashier, any trust officer
or assistant trust officer, the controller or any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means a Subsidiary of the Company (a)
substantially all the property of which is located, or substantially all the
business of which is carried on, within the United States of America and (b)
which owns a Principal Property.
"Sale and Leaseback Transaction" has the meaning specified in Section
1105.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities (including Medium-Term Debt
Securities) authenticated and delivered under this Indenture and, in the case of
any Bearer Security, shall include where appropriate any Coupons appertaining
thereto.
"Security Register" has the meaning specified in Section 404.
"Security Registrar" means the Person appointed as the initial
Security Registrar in Section 404 or any Person appointed by the Company as a
successor or replacement Security Registrar.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 406.
"Specified Amount" has the meaning specified in Section 410(i).
"Stated Maturity", when used with respect to any Security (or Coupon,
if any, representing an installment of interest) or any installment of principal
thereof or interest thereon, means the date specified in such Security (or
Coupon) as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
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"Subsidiary" of any specified corporation means (i) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by the specified corporation or by one or more of its
Subsidiaries, or both or (ii) any other person (other than a corporation) in
which the specified corporation or one or more of its Subsidiaries, or both,
shall at the time, directly or indirectly, have greater than a 50% ownership
interest.
"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 the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended by the First Indenture Reform Act of 1990, and as in force at the date
as of which this instrument was executed, except as provided in Section 1005.
"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.
"U.S. Book-Entry Securities" means Securities represented by a
definitive global Security registered in the name of the U.S. Depositary or its
nominee.
"U.S. Depositary" means a clearing agency registered under the
Exchange Act, or any successor thereto, which shall in either case be designated
by the Company pursuant to Section 202 or Section 301, as the case may be, until
a successor U.S. Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "U.S. Depositary" shall mean or
include each Person who is then a U.S. Depositary hereunder, and if at any time
there is more than one such Person, "U.S. Depositary" as used with respect to
the Securities of any series shall mean the U.S. Depositary with respect to the
Securities of that series.
"U.S. Government Obligations" has the meaning specified in Section
505.
"Valuation Date" has the meaning specified in Section 410(e).
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock", as applied to the stock of any corporation, means
stock of any class or classes (however designated) having by the terms thereof
ordinary voting power to elect members of the board of directors (or other
governing body) or such corporation other than stock having such power only by
reason of the happening of a contingency.
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SECTION 102. 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, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that 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, no additional certificate or opinion need be
furnished.
Unless expressly otherwise specified with respect to any certificate
or opinion provided for in this Indenture, every certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture (other than annual certificates provided pursuant to Section 1107)
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
(4) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. 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
13
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 104. Acts of Holders. (a) The 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 by any trust company, bank, banker or other depository,
wherever situated, showing that at the date therein mentioned such Person had on
deposit with such depository, or exhibited to it, the Bearer Securities 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.
(b) The fact and date of execution of any such instrument or writing
pursuant to clause (a) above, 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 clause.
(c) The principal amount and serial numbers of Registered Securities
held by any Person and the date of holding the same shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of a Holder shall bind every future Holder of the same
Security and/or Coupon and the Holder of every Security and/or Coupon 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 or the Company in reliance thereon, whether or not notation of such
action is made upon such Security and/or Coupon.
(e) Whenever any Act is to be taken hereunder by the Holders of two or
more series of Securities denominated in different currencies (or currency
units), then, for the purpose of determining the principal amount of Securities
held by such Holders, the aggregate principal amount of the Securities
denominated in a Foreign Currency (or any currency unit) shall be deemed to be
that amount determined by the Company or by an authorized Exchange Rate Agent
and evidenced to the Trustee by an Officers' Certificate as of the date the
taking of such Act by the Holders of the requisite percentage in principal
amount of the Securities is evidenced to the Trustee to be equal to the Dollar
equivalent obtained by converting the specified Foreign
14
Currency or currency unit into Dollars at the Market Exchange Rate on such date
(or, in the case of a Security denominated in a currency unit for which there is
no Market Exchange Rate, the Dollar equivalent obtained by adding together the
results obtained by converting the Specified Amount of each Component Currency
into Dollars at the Market Exchange Rate for each such Component Currency on
such date) of the principal amount (or, in the case of an Original Issue
Discount Security, the principal amount thereof that would be due and payable as
of the declaration of acceleration of the Maturity thereof pursuant to Section
602 on such date) of such Security. An Exchange Rate Agent may be authorized in
advance or from time to time by the Company. Any such determination by the
Company or by any such Exchange Rate Agent shall be conclusive and binding on
all Holders, the Company and the Trustee, and neither the Company nor any such
Exchange Rate Agent shall be liable therefor in the absence of bad faith.
(f) 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, by 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 other Act, but the Company shall have no obligation to do so.
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 six months after the record date.
SECTION 105. Notices, etc. to Trustee and Company. Any notice or
communication shall be sufficiently given if in writing and delivered in person
or by facsimile transmission or mailed by first-class mail, postage prepaid,
addressed as follows:
If to the Company:
Manor Care, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Secretary
15
If to the Trustee:
The Chase Manhattan Bank
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to him
at his address as it appears on the registration books of the Registrar and
shall be sufficiently given to him if so mailed within the time prescribed.
Failure to mail a notice of communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it; provided, however, that any notice or
communication to the Trustee shall be effective only upon receipt.
SECTION 106. Notice to Holders; Waiver. (a) Where this Indenture
provides for notice to Holders of any event:
(i) if any of the Securities affected by such event are
Registered Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided or unless otherwise specified in
such Securities) if in writing and delivered in person, mailed,
first-class postage prepaid or sent by overnight courier, to each
Holder affected by such event, at his address as it appears in the
Security Register, within the time prescribed for the giving of such
notice, and
(ii) if any of the Securities affected by such event are Bearer
Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided or unless otherwise specified in such
Securities) if (A) published once in an Authorized Newspaper in New
York City and London and, if applicable, in Luxembourg or such other
place of publication as may be required pursuant to the rules and
regulations of any securities exchange on which such Securities are
listed, and (B) delivered in person, mailed, first-class postage
prepaid or sent by overnight courier to such Persons whose names were
previously filed with the Trustee, within the time prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice to Holders of
Registered Securities in the manner specified above, then such notification as
shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In case by reason of the suspension of
publication of any Authorized Newspaper or Authorized Newspapers or by reason
16
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.
(b) In any case where notice to a Holder of Registered Securities is
given in any manner specified in paragraph (a) above, such notice shall be
conclusively presumed to have been duly given, whether or not such Holder
receives such notice. In any case where notice to Holders of Registered
Securities is given in any manner specified in paragraph (a) above, neither the
failure to deliver, mail or send such notice, nor any defect in any notice so
mailed or sent, to any particular Holder of a Registered Security 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. Neither the failure to give notice by publication to
Holders of Bearer Securities as provided in Paragraph (a) above, nor any defect
in any notice so published, shall affect the sufficiency of any notice to
Holders of Registered Securities given as provided herein.
(c) 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 of Securities 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.
SECTION 107. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with the duties imposed by any of Sections
310 to 317, inclusive, of the Trust Indenture Act through operation of Section
318(c) thereof, such imposed duties shall control.
SECTION 108. 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 109. 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 110. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby and a Holder shall have no claim
therefor against any party hereto.
SECTION 111. 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 and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
17
SECTION 112. Governing Law. THIS INDENTURE AND THE SECURITIES AND
COUPONS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 113. Legal Holidays. Except as otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, in any case
where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security or Coupon shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of such Security or
Coupon) 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, or at the Stated Maturity, as
the case may be, provided that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, to the next succeeding Business Day at such Place of Payment.
SECTION 114. Moneys of Different Currencies To Be Segregated. The
Trustee shall segregate moneys, funds and accounts held by the Trustee hereunder
in one currency (or currency unit) from any moneys, funds or accounts in any
other currencies (or currency units), notwithstanding any provision herein which
would otherwise permit the Trustee to commingle such amounts.
SECTION 115. Payment To Be in Proper Currency. In the case of any
Security denominated in any particular currency or currency unit (the "Required
Currency"), subject to applicable law and except as otherwise provided herein,
therein or in or pursuant to the related Board Resolution, Medium-Term Debt
Securities Certificate or supplemental indenture, the obligation of the Company
to make any payment of principal, premium or interest thereon shall not be
discharged or satisfied by any tender by the Company, or recovery by the Trustee
in any currency or currency unit other than the Required Currency, except to the
extent that such tender or recovery shall result in the Trustee's timely holding
the full amount of the Required Currency then due and payable. If any such
tender or recovery is made in other than the Required Currency, the Trustee may
take such actions as it considers appropriate to exchange such other currency or
currency unit for the Required Currency. The costs and risks of any such
exchange, including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by the Company, the Company shall be liable for any
shortfall or delinquency in the full amount of the Required Currency then due
and payable, and in no circumstances shall the Trustee be liable therefor. The
Company hereby waives any defense of payment based upon any such tender or
recovery which is not in the Required Currency, or which, when exchanged for the
Required Currency by the Trustee, is less than the full amount of the Required
Currency then due and payable
SECTION 116. Language of Notices, etc. Any request, demand,
authorization, direction, notice, consent or waiver required or permitted under
thus Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
18
SECTION 117. Changes in Exhibits. At any time and from time to time,
the Company may substitute a new form, or add new forms, of the Exhibits hereto.
Such substitution shall be effective upon receipt by the Trustee of such new
form of Exhibit and a Board Resolution or Officers' Certificate adopting such
new form of Exhibit, and thereafter all references in this Indenture to such
Exhibit shall be deemed to refer to such new form of Exhibit.
ARTICLE TWO
Issuance of Securities
SECTION 201. Creation of Securities in Amount Unlimited. An unlimited
aggregate principal amount of Securities may be issued pursuant to this Article
Two and, in the case of Medium-Term Debt Securities, pursuant to Article Three.
The Securities (including Medium-Term Debt Securities) may be authenticated and
delivered, as authorized by the Board of Directors, in an unlimited number of
series.
SECTION 202. Documents Required for Issuance of Each Series of
Securities Other than Medium-Term Debt Securities. At any time and from time to
time, Securities of each series created pursuant to the provisions of this
Article Two may be executed by the Company and delivered to the Trustee and
shall be authenticated by the Trustee and delivered to, or upon the order of,
the Company upon receipt by the Trustee of the following:
(a) A Board Resolution or Board Resolutions authorizing the
execution, authentication and delivery of the Securities of the
series, and specifying, to the extent applicable, the following items:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Article Two (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 403, 404,
405, 1006 or 1207 and except for any Securities which, pursuant to
Section 402, are deemed never to have been authenticated and delivered
hereunder);
(3) the date or dates on which the principal (and premium, if
any) of any of the Securities of the series are payable or the method
of determination thereof;
(4) the rate or rates (which may be fixed or variable) per annum,
or the method of determination thereof, at which any of the Securities
of the series shall bear interest, if any, the date or dates from
19
which such interest shall accrue, the Interest Payment Dates on which
such interest shall be payable and the Regular Record Date for the
interest payable on any Registered Securities on any Interest Payment
Date;
(5) the place or places where the principal of (and premium, if
any) and interest, if any, on any of the Securities and Coupons, if
any, of the series shall be payable and the office or agency for the
Securities of the series maintained by the Company pursuant to Section
1102;
(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which any of the Securities of
the series may be redeemed, in whole or in part, at the option of the
Company;
(7) the terms of any sinking fund and the obligation, if any, of
the Company to redeem 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 and the terms and conditions upon which Securities of the series
shall be so redeemed or purchased, in whole or in part;
(8) the terms of the obligation of the Company, if any, to permit
the conversion of the Securities of the series into stock or other
securities of the Company or of any other corporation;
(9) the terms, if any, for the attachment to Securities of the
series of warrants, options or other rights to purchase or sell stock
or other securities of the Company;
(10) if other than denominations of $1,000 and in any integral
multiple thereof, if Registered Securities, and $5,000, if Bearer
Securities, for Securities denominated in Dollars, the denominations
in which the Securities of the series shall be issuable;
(11) if other than the principal amount thereof, the portion of
the principal amount of any of the Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 602;
(12) the application, if any, of Section 501, or such other means
of satisfaction and discharge and/or defeasance as may be specified
for the Securities and Coupons, if any, of a series;
(13) any deletions or modifications of or additions to the Events
of Default set forth in Section 601 or covenants of the Company set
forth
20
in Article Nine or Eleven pertaining to the Securities of the series
(including without limitation whether the provisions of Section 1104
or Section 1105 shall not be applicable to the Securities of the
series);
(14) the forms of the Securities and Coupons, if any, of the
series;
(15) if other than Dollars, the currency or currencies, or
currency unit or units, in which the Securities of such series will be
denominated and/or in which payment of the principal of (and premium,
if any) and interest, if any, on any of the Securities of the series
shall be payable and the Exchange Rate Agent, if any, for such series;
(16) if the principal of (and premium, if any) or interest, if
any, on any of the Securities of the series are to be payable at the
election of the Company or a Holder thereof, or under some or all
other circumstances, in a currency or currencies, or currency unit or
units, other than that in which the Securities are denominated, the
period or periods within which, and the terms and conditions upon
which, such election may be made, or the other circumstances under
which any of the Securities are to be so payable, including without
limitation the application of Section 410(b) and any deletions to,
modifications of or additions to the provisions thereof, and any
provision requiring the Holder to bear currency exchange costs by
deduction from such payments;
(17) if the amount of payments of principal of (and premium, if
any) or interest, if any, on any of the Securities of the series may
be determined with reference to an index based on (i) a currency or
currencies or currency unit or units other than that in which such
Securities are stated to be payable or (ii) any method, not
inconsistent with the provisions of this Indenture, specified in or
pursuant to such Board Resolution, then in each case (i) and (ii) the
manner in which such amounts shall be determined;
(18) whether the Securities of the series are to be issued as
Registered Securities or Bearer Securities (with or without Coupons),
or any combination thereof, whether Bearer Securities may be exchanged
for Registered Securities of the series and whether Registered
Securities may be exchanged for Bearer Securities of the series (if
permitted by applicable laws and regulations) and the circumstances
under which and the place or places where any such exchanges, if
permitted, may be made; and whether any Securities of the series are
to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in definitive global form
with or without Coupons and, if so, whether beneficial owners of
interests in any such definitive global Security may exchange such
interests for Securities of such series and of like tenor of
21
any authorized form and denomination and the circumstances under which
and the place or places where any such exchanges may occur, if other
than in the manner provided in Section 404;
(19) if the Securities and Coupons, if any, of the series are to
be issued upon the exercise of warrants, the time, manner and place
for such Securities and Coupons, if any, to be authenticated and
delivered;
(20) whether and under what circumstances and with what
procedures and documentation the Company will pay additional amounts
on any of the Securities and Coupons, if any, of the series to any
Holder who is not a U.S. Person (including a definition of such term),
in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Company will have the option to
redeem such Securities rather than pay additional amounts (and the
terms of any such option);
(21) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than 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,
the manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise 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 403;
and
(22) whether the Securities of the series shall be issued in
whole or in part in the form of one or more global Securities and, in
such case, the U.S. Depositary or any Common Depositary for, and any
other provisions relating to, such global Security or global
Securities; and if the Securities of the series are issuable only as
Registered Securities, (A) the manner in which and the circumstances
under which Registered Global Notes representing Securities of the
series may be exchanged for Registered Securities in definitive form,
if other than, or in addition to, the manner and circumstances
specified in Section 412, and (B) any other provisions that may be
necessary or desirable to effect compliance with the rules,
regulations, practices and policies of the U.S. Depositary from time
to time in effect, which provisions may or may not be consistent with
Section 412; and
(23) any other terms of any of the Securities of the series
(which terms shall not be inconsistent with the provisions of this
Indenture).
22
If any of the terms of the series are established by action taken
pursuant to a Board Resolution or Board Resolutions, an Officers'
Certificate certifying as to such action also shall be delivered to
the Trustee.
(b) In case the Securities of the series to be authenticated and
delivered are to be created pursuant to one or more supplemental
indentures, such supplemental indenture or indentures, accompanied by
a Board Resolution or Board Resolutions authorizing such supplemental
indenture or indentures and designating the new series to be created
and prescribing pursuant to paragraph (a) above, consistent with the
applicable provisions of this Indenture, the terms and provisions
relating to the Securities of the series.
(c) Either (i) a certificate or other official document
evidencing the due authorization, approval or consent of any
governmental body or bodies, at the time having jurisdiction in the
premises, together with an Opinion of Counsel that the Trustee is
entitled to rely thereon and that the authorization, approval or
consent of no other governmental body is required, or (ii) an Opinion
of Counsel that no authorization, approval or consent of any
governmental body is required.
(d) An Opinion of Counsel that all instruments furnished to the
Trustee conform to the requirements of this Indenture and constitute
sufficient authority hereunder for the Trustee to authenticate and
deliver the Securities and to deliver the Coupons, if any, of the
series; that all conditions precedent provided for in this Indenture
relating to the authentication and delivery of the Securities and
delivery of the Coupons, if any, of the series have been complied with
and the Company is duly entitled to the authentication and delivery of
the Securities and Coupons, if any, of the series in accordance with
the provisions of this Indenture; that all laws and requirements with
respect to the form and execution by the Company of the supplemental
indenture, if any, and the execution and delivery by the Company of
the Securities and Coupons, if any, of the series have been complied
with; that the Company has corporate power to execute and deliver the
supplemental indenture, if any, and to issue the Securities and
Coupons, if any, of the series and has duly taken all necessary
corporate action for those purposes; and that the supplemental
indenture, if any, as executed and delivered and the Securities and
Coupons, if any, of the series, when issued, will be the legal, valid
and binding obligations of the Company enforceable against the Company
in accordance with their terms (subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other
laws affecting creditors' rights generally from time to time in
effect, the enforceability of the Company's obligations also being
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law));
that the Securities and Coupons, if any, of the series, when issued,
will be entitled to the benefits of this Indenture, equally and
ratably with all other Securities and Coupons, if any, of such series
theretofore issued and then outstanding hereunder; and that the amount
23
of Securities then outstanding under this Indenture, including the
Securities of the series, will not exceed the amount at the time
permitted by law or this Indenture.
(e) An Officers' Certificate stating that the Company is not in
default under this Indenture and that the issuance of the Securities
and Coupons, if any, of the series will not result in any breach of
any of the terms, conditions or provisions of, or constitute a default
under, the Company's certificate of incorporation or by-laws or any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company is a party or by which it is bound, or any order of
any court or administrative agency entered in any proceeding to which
the Company is a party or by which it may be bound or to which it may
be subject; and that all conditions precedent provided in this
Indenture relating to the authentication and delivery of the
Securities and Coupons, if any, of the series have been complied with.
(f) Such other documents as the Trustee may reasonably require.
SECTION 203. Form of Securities Other than Medium-Term Debt
Securities. The Securities and Coupons, if any, of each series shall be in such
forms as shall be specified as contemplated by Section 202.
ARTICLE THREE
Issuance of Medium-Term Debt Securities
SECTION 301. Documents Required for Issuance of Each Series of
Medium-Term Debt Securities. At any time, and from time to time, Securities
(sometimes referred to herein as "Medium-Term Debt Securities") of each series
created pursuant to the provisions of this Article Three may be executed by the
Company and delivered to the Trustee and shall be authenticated by the Trustee
and delivered to, or upon the order of, the Company upon receipt by the Trustee
of the following:
(a) A Board Resolution or Board Resolutions authorizing the
execution, authentication and delivery of Medium-Term Debt Securities
up to a specified aggregate principal amount, in such series and
subject to such terms as shall be established by officers of the
Company authorized by such resolutions to establish such series and
terms.
(b) A Medium-Term Debt Securities Certificate requesting the
Trustee to authenticate and deliver Medium-Term Debt Securities of a
series as contemplated by Section 402, and specifying, to the extent
applicable, with respect to the Medium-Term Debt Securities of the
particular series, authorized pursuant to the Board Resolution or
Board Resolutions referred to in paragraph (a) above, the terms
required by Section 202(a) and the following additional terms:
24
(1) the method of determining the dates of the Medium-Term Debt
Securities of the series; and
(2) if other than the forms set forth in Exhibit A hereto, the
forms of the Medium-Term Debt Securities and Coupons, if any, of the
series.
For purposes of this Section 301 only, all references in Section
202(a) to "Securities" shall be deemed to be references to
"Medium-Term Debt Securities", and all references to "this Article
Two" shall be deemed to be references to "this Article Three".
Unless the Company shall be required to deliver an Officers'
Certificate pursuant to paragraph (d) below in connection with the
authentication of the Medium-Term Debt Securities of the series, the
delivery of such Medium-Term Debt Securities Certificate to the
Trustee shall be deemed to be a certification by the Company that all
matters certified in the most recent Officers' Certificate delivered
to the Trustee pursuant to paragraph (d) below continue to be true and
correct, as if such Officers' Certificate related to the Medium-Term
Debt Securities covered by such Medium-Term Debt Securities
Certificate, on and as of the date of such Medium-Term Debt Securities
Certificate. The delivery of such Medium-Term Debt Securities
Certificate also shall be deemed to be a certification that the Board
Resolution or Board Resolutions referred to in paragraph (a) above are
in full force and effect on and as of the date of such Medium-Term
Debt Securities Certificate and that the terms and form or forms of
the Medium-Term Debt Securities and Coupons, if any, of the series
have been established by an officer or officers of the Company
authorized by such Board Resolution or Board Resolutions in accordance
with the provisions thereof and hereof.
(c) If (i) the Company shall not have previously delivered to the
Trustee an Opinion of Counsel to the effect set forth in this
paragraph (c) with respect to the Medium-Term Debt Securities
authorized pursuant to the Board Resolution or Board Resolutions
referred to in paragraph (a) above or (ii) if the Medium-Term Debt
Securities Certificate referred to in paragraph (b) above specifies a
means of satisfaction and discharge other than the application of
Section 501 with respect to the series of Medium-Term Debt Securities
to which such Medium-Term Debt Securities Certificate relates, an
Opinion of Counsel that the Medium-Term Debt Securities have been duly
authorized by resolutions of the Board of Directors of the Company,
subject to the establishment of certain terms of the Medium-Term Debt
Securities and Coupons, if any, of the series by officers of the
Company authorized by such resolutions to establish such terms, that
when the terms of the Medium-Term Debt Securities and Coupons, if any,
of the series have been established as provided in such resolutions
and in this Indenture and the Medium-Term Debt Securities and Coupons,
if any, of the series have been executed, authenticated and delivered
in accordance with the provisions of this
25
Indenture, the Medium-Term Debt Securities and Coupons, if any, of the
series, assuming they do not violate any applicable law then binding
on the Company, will constitute legal, valid and binding obligations
of the Company entitled to the benefits of this Indenture, equally and
ratably with all other Securities and Coupons, if any, of such series
theretofore issued and then outstanding hereunder, and that the amount
of Securities then outstanding under this Indenture, including the
Medium-Term Debt Securities of the series, will not exceed the amount
at the time permitted by law or this Indenture.
(d) If the Company shall not have delivered an Officers'
Certificate pursuant to the provisions of this paragraph (d) to the
Trustee during the immediately preceding 12-month period, an Officers'
Certificate stating that the Company is not in default under this
Indenture, that the issuance of the Medium-Term Debt Securities and
Coupons, if any, of the series will not result in any breach of any of
the terms, conditions or provisions of, or constitute a default under,
the Company's certificate of incorporation or By-laws or any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company is a party or by which it is bound, or any order of
any court or administrative agency entered in any proceeding to which
the Company is a party or by which it may be bound or to which it may
be subject, that all laws and requirements with respect to the
execution and delivery by the Company of the Medium-Term Debt
Securities and Coupons, if any, of the series have been complied with
and that all conditions precedent provided in this Indenture relating
to the authentication and delivery of the Medium-Term Debt Securities
and Coupons, if any, of the series have been complied with.
(e) Such other documents as the Trustee shall reasonably
request.
SECTION 302. Form of Medium-Term Debt Securities. The Medium-Term Debt
Securities and Coupons, if any, of each series shall be in such forms as shall
be specified as contemplated by Section 301.
ARTICLE FOUR
The Securities
SECTION 401. Form and Denomination. All Securities of any one series
and the Coupons appertaining to any Bearer Securities of such series shall be
substantially identical except, in the case of Registered Securities, as to
denomination and except as may otherwise be provided in or pursuant to the Board
Resolution referred to in Section 202 or Section 301, as the case may be, and
(subject to Section 402) set forth in the Officers' Certificate or Medium-Term
Debt Securities Certificate referred to in Section 202 or Section 301, as the
case may be, or in any indenture supplemental hereto.
26
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 202 or Section 301, as the case
may be. In the absence of any such provisions with respect to the Securities of
any series, the Securities of such series denominated in Dollars shall be
issuable in denominations of $1,000 and in any integral multiple thereof, if
registered, and in denominations of $5,000 if bearer. Securities of each series
shall be numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Company executing the same may
determine with the approval of the Trustee. Each Security shall bear the
appropriate legends, if any, as required by U.S. Federal tax law and
regulations.
SECTION 402. Execution, Delivery, Dating and Authentication. The
Securities and any Coupons shall be executed on behalf of the Company by the
manual or facsimile signature of two Officers, under its corporate seal
reproduced thereon. In case any of the above referenced Officers of the Company
who shall have signed any of the Securities or Coupons shall cease to be such
Officer before the Securities so signed shall have been authenticated and
delivered by the Trustee or disposed of by the Company, such Securities
nevertheless may be authenticated and delivered or disposed of as though the
person who signed such Securities and/or Coupons had not ceased to be such
Officer; and any Securities or Coupons may be signed on behalf of the Company by
such persons as, at the actual date of the execution of such Security or Coupon,
shall be such Officers of the Company, although at the date of the execution of
this Indenture any such person was not such Officer.
At any time and from time to time, the Company may deliver Securities
of any series, together with any Coupons appertaining thereto, executed by the
Company to the Trustee for authentication, together (except in the case of any
Medium-Term Debt Securities) with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order (or, in the case of Medium-Term Debt Securities of any series, upon
receipt of a Medium-Term Debt Securities Certificate and in accordance with the
terms thereof) shall authenticate and make available for delivery such
Securities; provided, however, that, unless otherwise specified in the Board
Resolution (or, in the case of any Bearer Securities that are Medium-Term Debt
Securities in the Medium-Term Debt Securities Certificate) with respect to any
Bearer Securities, in connection with its original issuance, no Bearer Security
(including any temporary Bearer Security issued pursuant to Section 403 which is
not in global form) shall be mailed or otherwise delivered to any location in
the United States; and provided further that, unless otherwise specified in the
Board Resolution (or, in the case of any Bearer Securities that are Medium-Term
Debt Securities, in the Medium-Term Debt Securities Certificate) with respect to
such Bearer Securities, such Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security (including any temporary Bearer Security issued pursuant to Section 403
which is not in global form) shall have furnished to the Company or any agent,
underwriter or selling group member a certificate substantially in the form set
forth in Exhibit B.1 to this Indenture, 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. In connection with the original issuance of any Bearer Security and
unless otherwise specified in the Board Resolution
27
(or, in the case of any Bearer Securities that are Medium-Term Debt Securities,
in the Medium-Term Debt Securities Certificate) with respect to such Bearer
Securities, a confirmation substantially in the form set forth in Exhibit B.5 to
this indenture shall be sent to each purchaser thereof. If any Security shall be
represented by a definitive global Bearer Security, then, for purposes of this
Section and Section 403, 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 definitive global
Bearer Security. Except as permitted by Section 405, the Trustee shall not
authenticate and make available for delivery any Bearer Security unless all
appurtenant Coupons for interest then matured have been detached and canceled.
The Trustee shall not be required to authenticate Securities of any
series 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, or if the Trustee determines that such action may not lawfully be
taken.
Unless otherwise specified pursuant to Section 301(b)(1), each
Registered Security shall be dated the date of its authentication, and each
Bearer Security and any Bearer Security in global form shall be dated as of the
date of original issuance of the first Security of such series to be issued.
No Security or Coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
below 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. Notwithstanding the
foregoing, if any Security shall have been duly 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 408
together with a written statement (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) stating that such Security has
never been issued and sold by the Company, 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.
The Trustee's certificate of authentication shall be in substantially
the following form:
Dated:
28
This is one of the Securities of the series designated herein issued
under the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By
-----------------------------------
Authorized Signatory
SECTION 403. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order (or, in the case of Medium-Term Debt Securities, receipt of the
Medium-Term Debt Securities Certificate with respect to such Medium-Term Debt
Securities) the Trustee shall authenticate and make available for delivery,
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
evidenced conclusively by their execution of such Securities. 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 the provisions of the following paragraphs), 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 maintained pursuant to Section 1102 in a Place of Payment for such
series for the purpose of exchanges of Securities of such series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured Coupons) the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a like aggregate principal amount of definitive Securities
of the same series and of like tenor and of authorized denominations; provided,
however, that, unless otherwise specified as contemplated by Section 202 or
Section 301, as the case may be, no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; provided further that
a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 402.
If temporary Bearer Securities of any series are issued in global
form, such temporary global Bearer Securities shall, unless otherwise specified
as contemplated by Section 202 or Section 301, as the case may be, be deposited
with a common depository in London for ▇▇▇▇▇▇ Guaranty Trust Company of New
York, Brussels Office (the "Common Depositary"), as
29
operator of the Euro-clear System and CEDEL S.A., for credit to the respective
accounts of the beneficial owners of interests in 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 each such temporary global Security shall be surrendered by
the Common Depositary to the Trustee, as the Company's agent for such purpose,
to be exchanged, in whole or from time to time in part, for definitive
Securities without charge and the Trustee shall authenticate and make available
for delivery, 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, definitive global form or any combination thereof, as specified
as contemplated by Section 202 or Section 301, as the case may be, and, if any
combination thereof is so specified, as requested by the beneficial owner
thereof; provided, however, that, unless otherwise specified as contemplated by
Section 202 or Section 301, as the case may be, upon such presentation by the
Common Depositary, such temporary global Security shall be accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euro-clear 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 S.A. 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 B.2 to this Indenture; provided further that definitive Bearer
Securities (including a definitive global Bearer Security) shall be delivered in
exchange for a portion of a temporary global Security only in compliance with
the requirements of Section 402.
Unless otherwise specified as contemplated by Section 202 or Section
301, as the case may be, the interest of a beneficial owner of Securities of a
series in a temporary global Bearer Security shall be exchanged for definitive
Bearer Securities of the same series and of like tenor following the Exchange
Date when the beneficial owner instructs Euro-clear or CEDEL S.A., as the case
may be, to request such exchange on his behalf and delivers to Euro-clear or
CEDEL S.A., as the case may be, a certificate substantially in the form set
forth in Exhibit B.1 to this Indenture, dated no earlier than 15 days prior to
the Exchange Date, copies of which certificate shall be available from the
offices of Euro-clear, CEDEL S.A., the Trustee, any Authenticating Agent
appointed for such series of Securities and any Paying Agent appointed for such
series of Securities. Unless otherwise specified as contemplated by Section 202
or Section 301, as the case may be, 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 in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euro-clear or CEDEL
S.A. The definitive Bearer Securities to be delivered in exchange for any
portion of a temporary global Security shall be delivered to locations only
outside the United States.
30
Until exchanged in full as provided above, 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 202 or Section 301, as the case may be, interest
payable on any portion of a temporary global Bearer Security on an Interest
Payment Date for Securities of such series occurring prior to the applicable
Exchange Date shall be payable to each of Euro-clear and CEDEL S.A. on such
Interest Payment Date upon delivery by Euro-clear and CEDEL S.A. to the Trustee
of a certificate or certificates substantially in the form set forth in Exhibit
B.3 to this Indenture, for credit without further interest on or after such
Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary global Security (or to such other accounts
as they may direct) on such Interest Payment Date and who have each delivered to
Euro-clear or CEDEL S.A., as the case may be, a certificate substantially in the
form set forth in Exhibit B.4 to this Indenture. Any interest so received by
Euro-clear and CEDEL S.A. and not paid as herein provided shall be returned to
the Trustee immediately prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company in accordance with Section
1103.
SECTION 404. Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at an office or agency to be maintained by the
Company in accordance with Section 1102 a register (being the combined register
of the Security Registrar and all additional transfer agents designated pursuant
to Section 1102 for the purpose of registration of transfer of Securities and
sometimes collectively 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 (other than U.S. Book-Entry
Securities) and the registration of transfers of Registered Securities. The
Chase Manhattan Bank is hereby appointed the initial Security Registrar. At all
reasonable times each register maintained by the Security Registrar and any
additional transfer agents shall be open for inspection by the Trustee.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 1102 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor.
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 denominations and of a like aggregate principal amount and tenor,
upon surrender of the Securities to be exchanged at any such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and make available for delivery, the
Securities which the Holder making the exchange is entitled to receive. Unless
otherwise specified as contemplated by Section 202 or Section 301, as the case
may be, Bearer Securities may not be issued in exchange for Registered
Securities.
31
At the option of the Holder and unless otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, Bearer
Securities of any series may be exchanged for Registered Securities of the same
series of any authorized denominations and of a like aggregate principal amount
and tenor, 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
appertaining thereto. 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 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 is 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
1102, 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 exchange for a Registered
Security of the same series and like tenor after the close of business at such
office or agency on (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 proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date for 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 make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, any definitive
global Bearer Security shall be exchangeable only as provided in this paragraph.
If the beneficial owners of interests in a definitive global Bearer Security are
entitled to exchange such interests for Securities of such series and of like
tenor and principal amount of another authorized form and denomination, as
specified as contemplated by Section 202 or Section 301, as the case may be,
then without unnecessary delay but in any event not later than the earliest date
on which such interest may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in an aggregate principal amount equal to the
principal amount of such definitive global Bearer Security, executed by the
Company. On or after the earliest date on which such interests may be so
exchanged, such definitive global Bearer Security shall be surrendered by the
Common Depositary or such other depositary or Common Depositary as shall be
specified in the Company Order or Medium-Term Debt Securities Certificate, as
the case may be, with respect thereto to the Trustee, as the
32
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge and the Trustee shall
authenticate and make available for delivery, in exchange for each portion of
such definitive global Bearer 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 definitive global Bearer Security to be exchanged
which, unless the Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, as specified as contemplated by Section
202 or Section 301, as the case may be, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15
Business Days before any selection of Securities of that series to be redeemed
and ending on the relevant Redemption Date; provided further that no Bearer
Security delivered in exchange for a portion of a definitive global Security
shall be mailed or otherwise delivered to any location in the United States. If
a Registered Security is issued in exchange for any portion of a definitive
global Bearer Security after the close of business at the office or agency where
such exchange occurs on (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 proposed date for payment of Defaulted Interest, 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
such Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such definitive global Bearer Security is
payable in accordance with the provisions of this Indenture.
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 or the Trustee or
any transfer agent) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar or
any transfer agent 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 registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 403, 1006 or 1207 not involving any transfer.
In the event of any redemption in part of any series of Securities,
the Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 Business Days before any selection of Securities of that series to
be redeemed and ending at the close of business on (A) if Securities
33
of the series are issuable only as Registered Securities, the day of the mailing
of the relevant notice of redemption and (B) if Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Securities of the series are also issuable as
Registered Securities and there is no publication, the day of mailing of the
relevant notice of redemption, or (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 any 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 that series and of
like tenor; provided that such Registered Security shall be simultaneously
surrendered for redemption.
SECTION 405. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security or Security with a mutilated Coupon appertaining to it is
surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor 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 the Coupons, if
any, appertaining to the surrendered Security, provided that if such new
Security is a Bearer Security, such Security shall be delivered only outside the
United States.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or Coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or Coupon has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen Coupon appertains (upon surrender to the Trustee of
such Security with all appurtenant 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 the
Coupons, if any, appearing to such destroyed, lost or stolen Security or to the
Security to which such destroyed, lost or stolen Coupon appertains.
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 or Coupon, pay such Security
or Coupon; provided, however, that principal of (and premium, if any) and any
interest on Bearer Securities shall, except as otherwise provided in Section
1102, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 202 or Section 301,
as the case may be, 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.
34
Every new Security or Coupon of any series issued pursuant to this
Section in lieu of any mutilated, destroyed, lost or stolen Security or Coupon
shall constitute an original additional contractual obligation of the Company,
whether or not the mutilated, destroyed, lost or stolen Security 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 or
Coupons of that series 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 406. Payment of Interest; Interest Rights Preserved. Unless
otherwise provided as contemplated by Section 202 or Section 301, as the case
may be, with respect to any series of Securities, interest on any Registered
Security which 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 option of the Company,
interest on the Registered Securities of any series that bears interest may be
paid by mailing a check to the address of any Holder as such address shall
appear in the Security Register.
Any interest on any Registered Security of any series which 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 Holder 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
Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed,
35
first-class postage prepaid, to each Holder of 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 so
mailed, such Defaulted Interest shall be paid to the Persons
in whose names the 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).
(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.
Subject to the foregoing provisions of this Section and Section 404,
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 407. 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 Registered Security for
the purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 404, 406 and 411 and unless otherwise specified as
contemplated by Section 202 or Section 301, as the case may be) interest on such
Security and for all other purposes whatsoever, whether or not such 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 shall pass by delivery.
The Company, the Trustee and any agent of the Company or the Trustee may treat
the Holder of any Bearer Security and the Holder of any Coupon as the absolute
owner of such Security or Coupon for the purpose of receiving payment thereof or
on account thereof (unless otherwise specified as contemplated by Section 202 or
Section 301, as the case may be) 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.
SECTION 408. Cancellation. All Securities and Coupons surrendered for
payment, redemption, 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. All Securities and Coupons so delivered
shall be promptly canceled by the Trustee. All Bearer Securities and unmatured
Coupons held by the Trustee pending such cancellation shall be deemed to be
delivered for cancellation for all purposes of this Indenture and the
Securities. The
36
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 to the Trustee shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities and Coupons held by the Trustee shall
be disposed of in a manner selected by the Trustee unless otherwise directed by
a Company Order; provided, however, that the Trustee may, but shall not be
required to, destroy such canceled Securities and Coupons.
SECTION 409. Computation of Interest. Except as otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, for Securities
of any series, interest on the Securities of each series shall bc computed on
the basis of a 360-day year of twelve 30-day months.
SECTION 410. Currency and Manner of Payment in Respect of Securities.
The provisions of this Section shall apply to the Securities of any series
unless otherwise provided as contemplated by Section 202 or Section 301, as the
case may be.
(a) The following payment provisions shall apply to
any Registered Security of any series denominated in a Foreign
Currency or any currency unit, including without limitation
ECU, except as provided in paragraph (b) below:
(1) Except as provided in subparagraph
(a)(2) or in paragraph (e) below, payment of
principal of and premium, if any, on such Registered
Security will be made at the Place of Payment by
delivery of a check in the currency or currency unit
in which the Security is denominated on the payment
date against surrender of such Registered Security,
and any interest on any Registered Security will be
paid at the Place of Payment by mailing a check in
the currency or currency unit in which such interest
is payable (which shall be the same as that in which
the Security is denominated unless otherwise
provided) to the Person entitled thereto at the
address of such Person appearing on the Security
Register.
(2) Payment of the principal of, premium, if
any, and interest, if any, on such Security may also,
subject to applicable laws and regulations, be made
at such other place or places as may be designated by
the Company by any appropriate method.
(b) With respect to any Registered Security of any
series denominated in any currency unit, including without
limitation ECU, if the following provisions (or any substitute
therefor, or addition thereto, not inconsistent with this
Indenture) are established pursuant to Section 202 or Section
301, as the case may be, and
37
if the Company has not, before the delivery of the election
referred to in clause (1) below, deposited funds or securities
in compliance with Section 501, the following payment
provisions shall apply to any payment to be made prior to the
giving of any notice to Holders of any election to redeem
pursuant to Section 1204, except as otherwise provided in
paragraphs (e) and (f) below:
(1) A Holder of Securities of a series shall
have the option to elect to receive payments of
principal of, premium, if any, and interest, if any,
on such Securities in a currency or currency unit
(including Dollars), other than that in which the
Security is denominated, such election, as designated
in the certificates for such Securities (or as
provided by Section 202 or Section 301, as the case
may be, or a supplemental indenture hereto with
respect to uncertificated securities), shall be made
by delivering to the Paying Agent a written election,
to be in form and substance satisfactory to the
Paying Agent, not later than the close of business in
New York, New York, on the day 15 days prior to the
applicable payment date. Such election will remain in
effect for such Holder until changed by the Holder by
written notice to the Paying Agent (but any such
written notice must be received by the Paying Agent
not later than the close of business on the day 15
days prior to the next payment date to be effective
for the payment to be made on such payment date and
no such change may be made with respect to payments
to be made on any Security of such series with
respect to which notice of redemption has been given
by the Company pursuant to Article Twelve). Any
Holder of any such Security who shall not have
delivered any such election to the Paying Agent in
accordance with this paragraph (b) will be paid the
amount due on the applicable payment date in the
relevant currency unit as provided in paragraph (a)
of this Section. Payment of principal of and premium,
if any, shall be made on the payment date therefor
against surrender of such Security. Payment of
principal, premium, if any, and interest, if any,
shall be made at the Place of Payment by mailing at
such location a check, in the applicable currency or
currency unit, to the Holder entitled thereto at the
address of such Holder appearing on the Security
Register.
(2) Payment of the principal of, premium, if
any, and interest, if any, on such Security may also,
subject to applicable laws and regulations, be made
at such other place or places as may be designated by
the Company by any appropriate method.
(c) Payment of the principal of and premium, if any,
and interest, if any, on any Bearer Security will be made,
except as provided in Section 403 with respect to temporary
global Securities, unless otherwise specified pursuant to
Section 202 or Section 301, as the case may be, and/or Section
1001(8), at such place or places outside the United States as
may be designated from time to time by the Company pursuant to
any applicable laws or regulations by any appropriate
38
method in the currency or currencies or currency unit or units
in which the Security is payable (except as provided in
paragraph (e) below) on the payment date therefor against
surrender of the Bearer Security, in the case of payment of
principal and premium, if any, or the relevant Coupon, in the
case of payment of interest, if any, to a Paying Agent
designated for such series pursuant to Section 1102.
(d) Not later than 10 Business Days (with respect to
any Place of Payment) prior to each payment date, the Paying
Agent shall deliver to the Company a copy of its record of the
respective aggregate amounts of principal of, premium, if any,
and interest, if any, on the Securities to be made on such
payment date, in the currency or currency unit in which each
of the Securities is payable, specifying the amounts so
payable in respect of Registered Securities and Bearer
Securities and in respect of the Registered Securities as to
which the Holders of Securities denominated in any currency
unit shall have elected to be paid in another currency or
currency unit as provided in paragraph (b) above. If the
election referred to in paragraph (b) above has been provided
for pursuant to Section 202 or Section 301, as the case may
be, and if at least one Holder has made such election, then,
not later than the fifth Business Day (with respect to any
Place of Payment) prior to the applicable payment date the
Company will deliver to the Trustee an Exchange Rate Officers'
Certificate in respect of the Dollar or Foreign Currency or
currency unit payments to be made on such payment date. The
Dollar or Foreign Currency or currency unit amount receivable
by Holders of Registered Securities denominated in a currency
unit who have elected payment in another currency or currency
unit as provided in paragraph (b) above shall be determined by
the Company on the basis of the applicable Official Currency
Unit Exchange Rate set forth in the applicable Exchange Rate
Officers' Certificate.
(e) If a Foreign Currency in which any Security is
denominated or payable ceases to be recognized both by the
government of the country which issued such currency and for
the settlement of transactions by public institutions of or
within the international banking community, or if ECU ceases
to be used within the European Monetary System, or if any
other currency unit in which a Security is denominated or
payable ceases to be used for the purposes for which it was
established, in each case as determined in good faith by the
Company, then with respect to each date for the payment of
principal of, premium, if any, and interest, if any, on the
applicable Security denominated or payable in such Foreign
Currency, ECU or such other currency unit occurring after the
last date on which such Foreign Currency, ECU or such other
currency unit was so used (the "Conversion Date"), the Dollar
shall become the currency of payment for use on each such
payment date (but ECU or the Foreign Currency or the currency
unit previously the currency of payment shall, at the
Company's election, resume being the currency of payment on
the first such payment date preceded by 15 Business Days
during which the circumstances which gave rise to the Dollar
becoming such currency no longer prevail, in each case as
determined in good faith by the
39
Company). The Dollar amount to be paid by the Company to the
Trustee and by the Trustee or any Paying Agent to the Holder
of such Security with respect to such payment date shall be
the Dollar Equivalent of the Foreign Currency or, in the case
of a currency unit, the Dollar Equivalent of the Currency
Unit, as determined by the Exchange Rate Agent (which shall be
delivered in writing to the Trustee not later than the fifth
Business Day prior to the applicable payment date) as of the
Conversion Date or, if later, the date most recently preceding
the payment date in question on which such determination is
possible of performance, but not more than 15 days before such
payment date (such Conversion Date or date preceding a payment
date as aforesaid being called the "Valuation Date") in the
manner provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security
denominated in a currency unit elects payment in a specified
Foreign Currency or currency unit as provided for by paragraph
(b) and such Foreign Currency ceases to be used both by the
government of the country which issued such currency and for
the payment of transactions by public institutions of or
within the international banking community, or if ECU ceases
to be used within the European Monetary System, or if another
currency unit ceases to be used for the purposes for which it
is established, in each case as determined in good faith by
the Company, such Holder shall (subject to paragraph (e)
above) receive payment in the currency unit in which the
Security is denominated. Each payment covered by an election
pursuant to paragraph (b) above shall be governed by the
provisions of this paragraph (f) (but, subject to any
contravening valid election pursuant to paragraph (b) above,
the specified Foreign Currency or ECU or other currency unit
shall, at the Company's election, being the currency or
currency unit, as applicable, of payment with respect to
Holders who have so elected, but only with respect to payments
on payment dates preceded by 15 Business Days during which the
circumstances which gave rise to such currency unit becoming
the currency unit of payment, no longer prevail, in each case
as determined in good faith by the Company).
(g) The "Dollar Equivalent of the Foreign Currency"
shall be determined by the Exchange Rate Agent as of each
Valuation Date and shall be obtained by converting the
specified Foreign Currency into Dollars at the Market Exchange
Rate on the Valuation Date.
(h) The "Dollar Equivalent of the Currency Unit"
shall be determined by the Exchange Rate Agent as of each
Valuation Date and shall be the sum obtained by adding
together the results obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market
Exchange Rate on the Valuation Date for such Component
Currency.
(i) For purposes of this Section 410 the
following terms shall have the following meanings:
40
A "Component Currency" shall mean any
currency which, on the Conversion Date, was a
component currency of the relevant currency unit,
including without limitation ECU.
A "Specified Amount" of a Component Currency
shall mean the number of units (including decimals)
which such Component Currency represented in the
relevant currency unit, on the Conversion Date or, if
ECU and such currency unit is being used for
settlement of transactions by public institutions of
or within the European Communities or was so used
after the Conversion Date, the Valuation Date or the
last date the currency unit was so used, whichever is
later. If after such 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 such 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 such
date any Component Currency shall be divided into two
or more currencies, the Specified Amount of such
Component Currency shall be replaced by specified
amounts of such two or more currencies, the sum of
which, at the Market Exchange Rate of such two or
more currencies on the date of such replacement,
shall be equal to the Specified Amount of such former
Component Currency and such amounts shall thereafter
be Specified Amounts and such currencies shall
thereafter be Component Currencies.
"Market Exchange Rate" shall mean, as of any
date, for any currency or currency unit the noon
Dollar buying rate for that currency or currency
unit, as the case may be, for cable transfers quoted
in New York City on such date as certified for
customs purposes by the Federal Reserve Bank of New
York or such other rate as may be established
pursuant to Section 202 or Section 301, as the case
may be. If such rates are not available for any
reason with respect to one or more currencies or
currency units for which an Exchange Rate is
required, 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 or in the country of issue of the 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
41
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, as determined in its sole discretion and
without liability on the part of the Exchange Rate
Agent, purchase such currency or currency unit in
order to make payments in respect of such securities.
All decisions and determinations of the
Exchange Rate Agent regarding the Dollar Equivalent
of the Foreign Currency, the Dollar Equivalent of the
Currency Unit and the Market Exchange Rate 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 and all Holders
of the Securities and Coupons denominated or payable
in the relevant currency or currency units. In the
event that a Foreign Currency ceases to be used both
by the government of the country which issued such
currency and for the settlement of transactions by
public institutions of or within the international
banking community, the Company, after learning
thereof, will immediately give notice thereof to the
Trustee (and the Trustee will promptly thereafter
give notice in the manner provided in Section 106 to
the Holders) specifying the Conversion Date. In the
event the ECU ceases to be used within the European
Monetary System, or any other currency unit in which
Securities or Coupons are denominated or payable,
ceases to be used for the purposes for which it was
established, the Company, after learning thereof,
will immediately give notice thereof to the Trustee
(and the Trustee will promptly thereafter give notice
in the manner provided in Section 106 to the Holders)
specifying the Conversion Date. Any actions taken
pursuant to the parentheticals at the end of the
first sentence of Section 410(e) and at the end of
Section 410(f) shall be promptly set forth in like
notices from the Company to the Trustee and then from
the Trustee to the Holders (which notices may be
mailed with payment to the Holders).
Subject to the provisions of Sections 701 and 702, the Trustee 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 such information independently.
SECTION 411. Securities in Global Form. If Securities of a series are
issuable in global form, as specified as contemplated by Section 202 or Section
301, as the case may be, then, notwithstanding clause (a)(8) of Section 202 and
clause (a)(8) of Section 202 as it applies to Section 301 and the provisions of
Section 401, such global Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced or increased to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of Outstanding Securities
42
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 (or, in the case of Medium-Term Debt Securities, the
Medium-Term Debt Securities Certificate) to be delivered to the Trustee pursuant
to Section 402 or Section 403. Subject to the provisions of Section 402 and, if
applicable, Section 403, the Trustee shall deliver and redeliver any Security in
definitive global bearer form in the manner and upon written instructions given
by the Person or Persons specified therein or in the applicable Company Order
(or, in the case of Medium-Term Debt Securities, the Medium-Term Debt Securities
Certificate). If a Company Order (or, in the case of Medium-Term Debt
Securities, Medium-Term Debt Securities Certificate) pursuant to Section 402 or
403 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of the fifth paragraph of Section
402 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 102 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 the fifth paragraph of Section 402.
Notwithstanding the provisions of Section 406, unless otherwise
specified as contemplated by Section 202 or Section 301, as the case may be,
payment of principal of and any premium and any interest on any Security in
definitive global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 407 and except as provided
in the preceding paragraph, if so specified as contemplated by Section 202 or
Section 301, as the case may be, with respect to the Securities of any series,
the Company, and any agent of the Company may, and the Trustee and any agent of
the Trustee, at the direction of the Company, may treat a Person having a
beneficial interest in a definitive global Security as the Holder of such
principal amount of Outstanding Securities of such Series represented by such
definitive global Security as shall be specified in a written statement of the
Holder of such definitive global Security or, in the case of a definitive global
Security in bearer form, of Euro-clear or CEDEL S.A. which is produced to the
Trustee by such Person; provided, however, that none of the Company, the
Trustee, the Security Registrar or any Paying Agent shall have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Security in
global form or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 412. Registered Global Notes. (a) If the Company shall
establish pursuant to Section 202 or Section 301, as the case may be, that the
Registered Securities of a series are to be issued in whole or in part in the
form of one or more global Securities (Registered Securities in the form of
global Securities being herein called "Registered Global Notes"), then the
Company shall execute and the Trustee shall, in accordance with Section 202
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or Section 301, as the case may be, and the Company Order or the Medium-Term
Debt Securities Certificate, as the case may be, with respect to such series,
authenticate and deliver one or more Registered Global Notes in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Securities of such
series to be represented by one or more Registered Global Notes, (ii) shall be
registered in the name of the U.S. Depositary for such Registered Global Note or
Notes or the nominee of such depositary, and (iii) shall bear a legend
substantially to the following effect:
"THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY, UNLESS AND UNTIL THIS SECURITY IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM."
Notwithstanding any other provision of this Section 412 or Section 404, unless
and until it is exchanged in whole or in part for Registered Securities in
definitive form, a Registered Global Note representing all or a portion of the
Registered Securities of a series may not be transferred except as a whole by
the U.S. Depositary for such series to a nominee of such depositary or by a
nominee of such depositary to such depositary or another nominee of such
depositary or by such depositary or any such nominee to a successor U.S.
Depositary for such series or a nominee of such successor depositary.
(b) If at any time the U.S. Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Securities of such series or if at any time the U.S.
Depositary for Securities of a series shall no longer be a clearing agency
registered and in good standing under the Exchange Act, or other applicable
statute or regulation, the Company shall appoint a successor U.S. Depositary
with respect to the Securities of such series. If a successor U.S. 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 condition, the
Company will execute, and the Trustee, upon receipt of a Company Order or a
Medium-Term Debt Securities Certificate, as the case may be, for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver Registered Securities of such series in definitive form
in an aggregate principal amount equal to the principal amount of the Registered
Global Note or Notes representing such series in exchange for such Registered
Global Note or Notes.
(c) The Company may at any time and in its sole discretion determine
that the Registered Securities of any series issued in the form of one or more
Registered Global Notes shall no longer be represented by such Registered Global
Note or Notes. 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, Registered Securities
of such series in definitive form and in an aggregate principal amount equal to
the principal amount of the Registered Global Note or Notes representing such
series in exchange for such Registered Global Note or Notes.
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(d) If the Registered Securities of any series shall have been issued
in the form of one or more Registered Global Notes and if an Event of Default
with respect to the Securities of such series shall have occurred and be
continuing, the Company will promptly 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, Registered Securities of such series
in definitive form and in an aggregate principal amount equal to the principal
amount of the Registered Global Note or Notes representing such series in
exchange for such Registered Global Note or Notes.
(e) If specified by the Company pursuant to Section 202 or Section
301, as the case may be, with respect to Registered Securities of a series, the
U.S. Depositary for such series of Registered Securities may surrender a
Registered Global Note for such series of Securities in exchange in whole or in
part for Registered Securities of such series in definitive form on such terms
as are acceptable to the Company and such depositary. Thereupon, the Company
shall execute and the Trustee shall authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new
Registered Security or Securities of the same series, of any authorized
denomination as requested by such Person in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Note; and
(ii) to the U.S. Depositary a new Registered Global Note in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Note and the aggregate
principal amount of Registered Securities delivered to Holders thereof.
(f) Upon the exchange of a Registered Global Note for
Registered Securities in definitive form, such Registered Global Note shall be
cancelled by the Trustee. Securities issued in exchange for a Registered Global
Note pursuant to this Section 412 shall be registered in such names and in such
authorized denominations as the U.S. Depositary for such Registered Global Note,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Securities to the
Persons in whose names such Securities are so registered.
ARTICLE FIVE
Satisfaction and Discharge
SECTION 501. Termination of Company's Obligations. The Company
may terminate with respect to a series of Securities all of its obligations
under the Securities and this Indenture if all Securities and Coupons, if any,
of such series previously authenticated and delivered (other than destroyed,
lost or stolen Securities and Coupons which have been replaced or paid) have
been delivered to the Trustee for cancellation or if:
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(a) (i) all such Securities and Coupons of such series not
previously delivered to the Trustee for cancellation mature within one
year or all of them are to be called for redemption within one year
under arrangements satisfactory to the Trustee for giving notice of
redemption; or (ii) the Holders of the Securities and Coupons of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of the Company's exercise of its option under this
Section 501 and will be subject to Federal income tax on the same
amount and in the same manner and at the same times as would have been
the case if such option had not been exercised;
(b) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations (as defined in Section 505) or, in
the case of Securities and Coupons, if any, denominated in a Foreign
Currency, Foreign Government Securities (as defined in Section 505)
sufficient to pay principal of, premium, if any, and interest on the
Securities of such series to maturity or redemption, as the case may
be, and the Company pays or makes arrangements satisfactory to the
Trustee for the payment of all other amounts due to the Trustee; and
(c) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent to the discharge of the Company's obligations have been
satisfied.
After such deliveries or a deposit, the Trustee, at the request and
expense of the Company, will execute proper instruments acknowledging the
Discharge of the Company's obligations under the Securities (and Coupons, if
any) and this Indenture with respect to such series except for those surviving
obligations specified in the definition of "Discharged" in Section 505.
In order to have money available on a payment date to pay principal
(including any premium) and interest, if any, under the Securities and Coupons,
if any, of such series, the U.S. Government Obligations or Foreign Government
Securities, as the case may be, shall be payable as to principal or interest on
or before such payment date in such amounts as will provide the necessary money.
U.S. Government Obligations and Foreign Government Securities shall not be
callable at the issuer's option. The Trustee shall receive a certificate of
either an independent accountant, the Company's Chief Financial Officer or
another financial advisor chosen by the Company to insure the accuracy of the
above.
SECTION 502. Application of Trust Money. The Trustee shall hold in
trust money, U.S. Government Obligations or Foreign Government Securities, as
the case may be, deposited with it pursuant to clause (b) of Section 501. It
shall apply the deposited money and the money from U.S. Government Obligations
or Foreign Government Securities, as the case may be, through the Paying Agent
and in accordance with this Indenture to the payment of principal of and
interest on the Securities of the series and redemption price, if applicable.
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SECTION 503. Repayment to Company. The Trustee and the Paying Agent
shall promptly pay to the Company upon request any excess money or securities
held by them at any time. The Trustee and the Paying Agent shall pay to the
Company upon request any money held by them for the payment of principal or
interest that remains unclaimed for two years. After payment to the Company,
Security holders entitled to money must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another
person, and all liability of the Trustee or the Paying Agent with respect to
such trust money shall thereupon cease.
SECTION 504. Reinstatement. If the Trustee is unable to apply any
money, U.S. Government Obligations or Foreign Government Securities in
accordance with Section 501 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Securities and Coupons, if any, of such series
shall bc revived and reinstated as though no deposit had occurred pursuant to
Section 501 until such time as the Trustee is permitted to apply all such money,
U.S. Government Obligations or Foreign Government Securities in accordance with
Section 501; provided, however, that if the Company has made any payment of
interest on or principal of (and premium, if any) on any Securities and Coupons,
if any, of such series because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such series of
Securities and Coupons, if any, to receive such payment from the money, U.S.
Government Obligations or Foreign Government Securities held by the Trustee.
SECTION 505. Definitions. The following terms, as used in this
Article, shall have the following meanings:
"Discharged" means that the Company will be deemed to
have paid and discharged the entire indebtedness represented
by, and obligations under, the Securities and Coupons, if any,
of the series as to which this Section is specified as
applicable as aforesaid and to have satisfied all the
obligations under this Indenture relating to the Securities
and Coupons, if any, of such series (and the Trustee, at the
request and expense of the Company, will execute proper
instruments acknowledging the same), except (A) the rights of
Holders thereof to receive, from the trust fund described in
Section 501(b), payment of the principal of (and premium, if
any) and the interest, if any, on such Securities and Coupons,
if any, when such payments are due, (B) the Company's
obligations with respect to such Securities and Coupons, if
any, under Sections 404 and 405 (insofar as applicable to
Securities of such series), 502, 1102 and 1103 (last paragraph
only) and the Company's obligations to the Trustee under
Section 707, (C) the rights of Holders of Securities of any
series with respect to the currency or currency units in which
they are to receive payments of principal, premium, if any,
and interest, if any, and (D) the rights, powers, trusts,
duties and immunities of the Trustee hereunder, will survive
such discharge. The Company will reimburse the trust fund for
any loss suffered by it as a result of any tax, fee or other
charge imposed on or against deposited U.S. Government
Obligations or Foreign Government
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Securities, as the case may be, or any principal or interest
paid on such obligations, and, subject to the provisions of
Section 707, will indemnify the Trustee against any claims
made against the Trustee in connection with any such loss.
"Foreign Government Securities" means, with respect
to Securities and Coupons, if any, of any series that are
denominated in a Foreign Currency, securities that are (i)
direct obligations of the government that issued or caused to
be issued such currency for the payment of which obligations
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 such government the timely payment of which
is unconditionally guaranteed as a full faith and credit
obligation by such government, which, in either case under
clause (i) or (ii), are not callable or redeemable at the
option of the issuer thereof.
"U.S. Government Obligations" means: (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.
ARTICLE SIX
Remedies
SECTION 601. Events of Default. "Event of Default" with respect to any
series of Securities means each one of the events specified below in this
Section 601, unless it is either inapplicable to a particular series or is
specifically deleted or modified in or pursuant to the supplemental indenture,
Board Resolution or Medium-Term Debt Securities Certificate establishing such
series of Securities:
(1) default in the payment of any installment of
interest upon any of the Securities of such series, as and
when the same shall become due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of or
premium, if any, on any of the Securities of such series, as
and when the same shall become due and payable (subject to
clause (3) below) either at maturity, upon redemption, by
declaration or otherwise; or
(3) default in the making of any payment for a
sinking, purchase or analogous fund provided for in respect of
such series of Securities, as and when the same shall become
due and payable, and continuance of such default for a period
of 30 days; or
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(4) failure on the part of the Company duly to
observe or perform any other of the covenants or agreements on
the part of the Company in the Securities of such series, this
Indenture or any supplemental indenture applicable to such
series, for a period of 60 days after the date on which
written notice of such failure requiring the Company to remedy
the same and stating that such notice is a "Notice of Default"
hereunder, shall have been given, by registered or certified
mail, to the Company by the Trustee, or to the Company and the
Trustee by the holders of at least 25% in aggregate principal
amount of the Securities of such series at the time
Outstanding; or
(5) default by the Company or any Subsidiary of the
Company in the payment of the principal of or interest on any
mortgage, agreement or other instrument under which there may
be outstanding, or by which there may be secured or evidenced,
any indebtedness for money borrowed (other than Non- Recourse
Debt of a Non-Recourse Subsidiary) in excess of $20,000,000 in
the aggregate of the Company and any Subsidiary of the
Company, whether such indebtedness now exists or shall
hereafter be created resulting in such indebtedness becoming
or being declared due and payable, and such acceleration shall
not have been rescinded or annulled within 10 days after
written notice of such acceleration has been received by the
Company or such Subsidiary; or
(6) entry in a court of competent jurisdiction of a
final judgment for the payment of $20,000,000 or more rendered
against the Company or any Subsidiary of the Company and such
judgment is not fully covered by insurance or not discharged
or stayed within 90 days after (i) the date on which the right
to appeal thereof has expired if no such appeal is commenced,
or (ii) the date on which all rights to appeal have expired or
been extinguished; or
(7) commencement by the Company of a voluntary case
under any applicable Federal or state bankruptcy, insolvency
or other similar law now or hereafter in effect, or consent by
the Company to the entry of an order for relief against it in
an involuntary case, or consent by the Company to the
appointment of a Custodian of the Company for all or
substantially all of its property, or any general assignment
by the Company for the benefit of its creditors; or
(8) entry by a court of competent jurisdiction of an
order or decree under any applicable Federal or state
bankruptcy, insolvency or other similar law now or hereafter
in effect that is for relief against the Company in an
involuntary case, or appoints a Custodian of the Company for
all or substantially all of the Company's property, or orders
the liquidation of the Company, and in each case such order or
decree remains unstayed and in effect for 90 days; or
(9) any other Event of Default provided with respect
to Securities of that series.
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No Event of Default with respect to a single series of indebtedness
issued under this Indenture necessarily constitutes an Event of Default with
respect to any other series of indebtedness issued hereunder.
SECTION 602. Acceleration. If an Event of Default with respect to the
Securities of any series at the time Outstanding occurs and is continuing on a
series, the Trustee by written notice to the Company, or the Holders of at least
25% in aggregate principal amount of the Outstanding Securities of that series
or in the case of an Event of Default specified in Clause (5) or (6) of Section
601, of all series (voting as a class) with respect to which such Event of
Default has occurred and is continuing by written notice to the Company and the
Trustee, may declare to be due and payable immediately (i) 100% of the principal
amount (or, if the Securities of that Series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of the Securities of the series and (ii) interest on the
Securities of the series accrued to the date of acceleration. Upon such
declaration, such amount of principal and interest shall be due and payable
immediately. The Holders of a majority in principal amount of the series by
notice to the Company may rescind an acceleration and its consequences if all
existing Events of Default on the series (except nonpayment of principal that
has become due solely because of the acceleration) have been cured or waived and
if the rescission would not conflict with any judgment or decree.
SECTION 603. Other Remedies. If an Event of Default occurs and is
continuing on a series, the Trustee may pursue any available remedy by
proceeding at law or in equity to collect, subject to Section 602, the payment
of principal of or interest on the Securities of the series or to enforce the
performance of any provision of the Securities or this Indenture applicable to
the series.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder 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 remedies are cumulative.
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SECTION 604. Waiver of Existing Defaults. Subject to Section 1002, and
unless a Board Resolution or Supplemental Indenture otherwise provides, the
Holders of a majority in principal amount of a series by notice to the Trustee
may consent to the waiver of a past or existing default or Event of Default on
the series and its consequences. When a default or Event of Default is waived,
it is cured. No such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
SECTION 605. Control by Majority. The Holders of a majority in
principal amount of a series may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on it under this Indenture with respect to the series. The
Trustee, however, subject to Section 703, may refuse to follow any direction
that conflicts with law or this Indenture, that is unduly prejudicial to the
rights of another Holder of a Security, or that would involve the Trustee in
personal liability. The Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction. The Trustee shall be
under no obligation to exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the Holders, pursuant to
the provisions of this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to the Trustee against all
costs, expenses and liabilities that may be incurred therein or thereby.
SECTION 606. Limitation on Suits. A Holder of a series may not pursue
any remedy with respect to this Indenture or the Securities of the series
unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default on the series;
(2) the Holders of at least 25% in principal amount of the series or,
in the case of an Event of Default specified in Clause (5) or (6) of
Section 601, of all series (voting as a class) with respect to which such
Event of Default has occurred and is continuing make a written request to
the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity,
satisfactory to the Trustee, against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period, the Holders of a majority in principal
amount of the series or, in the case of an Event of Default specified in
Clause (5) or (6) of Section 601, of all series (voting as a class) with
respect to which such Event of Default has occurred and is continuing do
not give the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
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SECTION 607. Rights of Holders To Receive Payments. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security to
receive payment of principal (and premium, if any) of and (subject to Section
406) interest on the Security or any Coupon, on or after the respective due
dates expressed in the Security, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of the Holder.
SECTION 608. Collection Suit by Trustee. If an Event of Default in
payment of interest or principal specified in Section 601 (1) or (2) occurs and
is continuing on a series, the Trustee, subject to Section 602, may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal and interest remaining unpaid on the series.
SECTION 609. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders allowed in
any judicial proceedings relative to the Company and its creditors or property.
Nothing herein shall be deemed to authorize the Trustee to authorize or consent
to or accept on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 610. Priorities. If the Trustee collects any money, securities
or other property for a series pursuant to this Article, it shall pay out the
money in the following order:
FIRST: to the Trustee for all amounts due it under Section 707;
SECOND: to Holders of the series for amounts due and unpaid on the
Securities for principal (and premium, if any) and interest, ratably,
without preference or priority of any kind, according to the amounts due
and payable on the Securities and Coupons, if any, for principal and
interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders.
SECTION 611. 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 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 attorney's 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 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 607 or a suit by Holders of more
than 10% in principal amount of the Outstanding Securities of the series.
52
SECTION 612. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 613. Waiver of Stay or Extension 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 wherever muted, now or at any time
hereafter in force, 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 law 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 SEVEN
The Trustee
SECTION 701. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing on Securities of any series, the Trustee shall
exercise its rights and powers vested in it by this Indenture and use the same
degree of care and skill in their exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default on Securities
of any series:
(1) The Trustee shall not be liable except for the performance of such
duties as are specifically set out in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. The
Trustee, however, shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section.
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(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 605.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, 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.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section.
(f) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(g) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree with the Company.
SECTION 702. Rights of Trustee. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel or require an Officers' Certificate and/or an Opinion of Counsel.
The Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care, provided
that the Company's rights or remedies against any agent shall not be
compromised.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers.
(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 Holder pursuant to this Indenture, unless such Holder 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.
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SECTION 703. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or an Affiliate thereof with the same
rights it would have if it were not Trustee. Any Agent may do the same with like
rights. The Trustee, however, must comply with Sections 710 and 711.
SECTION 704. Trustee's Disclaimer. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities of any series
and it shall not be responsible for any statement in the Securities of any
series other than its certificate of authentication.
SECTION 705. Notice of Defaults. If a default occurs and is continuing
on Securities of any series and if it is actually known to the Trustee or the
Trustee has received written notice thereof, the Trustee shall transmit to each
Holder of Securities of such series notice as provided in Section 106 of the
default within 90 days after it occurs. Except in the case of a default in
payment of principal of (or premium, if any, on) or interest on any Security of
a series or in the payment of any sinking fund installment with respect to
Securities of a series, the Trustee may withhold the notice if and so long as
the board of directors of the Trustee, the executive or any trust committee of
such board and/or responsible officers of the Trustee in good faith determine(s)
that withholding the notice is in the interest of the Securityholders of the
series; provided, further, that in the case of any default of the character
specified in Section 601(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence of
such default.
SECTION 706. Reports by Trustee to Holders. Within 60 days after each
December 15 beginning with December 15, 1996, the Trustee shall mail to each
Holder a brief report dated as of December 15 that complies with Section 313(a)
of the Trust Indenture Act. The Trustee also shall comply with Section 313(b) of
the Trust Indenture Act.
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC and each stock exchange, if any, on which the Securities are
listed.
SECTION 707. Compensation and Indemnity. The Company shall pay the
Trustee from time to time such compensation for its services as is separately
agreed upon by the Company and the Trustee. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses, disbursements
and advances incurred by it. Such expenses shall include, but shall not be
limited to, the reasonable compensation, expenses and disbursements of the
Trustee's agents and counsel. The Company shall indemnify the Trustee against
any loss or liability or expenses arising out of or incurred by it in connection
with the administration of this trust and its duties hereunder. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity.
The Company need not reimburse any expenses or indemnify against any loss or
liability incurred by the Trustee as a result of its negligence or willful
misconduct.
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The indemnities contained in this Section 707 shall survive the
termination of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 601(7) or (8) occurs, the expenses and the
compensation for such services are intended to constitute expenses of
administration under any bankruptcy law.
SECTION 708. Replacement of Trustee. (a) The Trustee may resign upon
30 days notice to the Company. The Holders of a majority in principal amount of
the Outstanding Securities of any series may remove the Trustee with respect to
such series of Securities upon 30 days notice to the removed Trustee and may
appoint a successor Trustee with the Company's consent. The Company may remove
the Trustee if:
(1) the Trustee fails to comply with Section 710;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of the Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately thereafter,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, the resignation or removal of the retiring Trustee shall
become effective and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Holder of the series of Securities for which
such successor Trustee will act.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of such outstanding series of
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 710, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(b) 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
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and which (1) shall contain such provisions as shill 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 retiring
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall 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.
SECTION 709. Successor Trustee by Merger, etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust assets to, another corporation, the successor
corporation without any further act shall be the successor Trustee.
SECTION 710. Eligibility; Disqualification. This Indenture shall
always have a Trustee who satisfies the requirements of Section 310(a)(1) of the
Trust Indenture Act. The Trustee shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with Section 310(b) of the Trust Indenture
Act. To the extent permitted by the Trust Indenture Act, the Trustee shall not
be deemed to have a conflicting interest with respect to the Securities of any
particular series of Securities other than that series.
SECTION 711. Preferential Collection of Claims Against Company. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
SECTION 712. Judgment Currency. If, for the purpose of obtaining a
judgment in any court with respect to any obligation of the Company hereunder or
under any Security or Coupon, it shall become necessary to convert into any
other currency or currency unit any amount in the currency or currency unit due
hereunder or under such Security or Coupon, then such conversion shall be made
at the Conversion Rate (as defined below) as in effect on the date
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the Company shall make payment to any Person in satisfaction of such judgment.
If pursuant to any such judgment, conversion shall be made on a date other than
the date payment is made and there shall occur a change between such Conversion
Rate and the Conversion Rate as in effect on the date of payment or
distribution, the Company agrees to pay such additional amounts (if any) as may
be necessary to ensure that the amount paid is the amount in such other currency
or currency unit which, when converted at the Conversion Rate as in effect on
the date of payment or distribution, is the amount then due hereunder or under
such Security or Coupon. Any amount due from the Company under this Section 712
shall be due as a separate debt and is not to be affected by or merged into any
judgment being obtained for any other sums due hereunder or in respect of any
Security or Coupon so that in any event the Company's obligations hereunder or
under such Security or Coupon will be effectively maintained as obligations in
such currency or currency unit. In no event, however, shall the Company be
required to pay more in the currency or currency unit stated to be due hereunder
or under such Security or Coupon.
For purposes of this Section 712, "Conversion Rate" shall mean, as of
any date, for any currency or currency unit into which an amount due hereunder
or under any Security or Coupon is to be converted, the noon buying rate in the
other currency or currency unit for that currency or currency unit for cable
transfers quoted in New York City on such date as certified for customs purposes
by the Federal Reserve Bank of New York. If such rates are not available for any
reason with respect to one or more currencies or currency units for which a
Conversion Date is required, 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 recant available date, or quotations
from one or more major banks in New York City or in the country of issue of the
currency 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 a 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, as
determined in its sole discretion and without liability on the part of the
Exchange Rate Agent, purchase such currency or currency unit in order to make
payments in respect of such securities. If there does not exist a quoted
exchange rate in any currency or currency unit (the "First Currency") for
another currency unit (the "Second Currency"), then the Conversion Rate for the
Second Currency shall be equal to an equivalent amount in the First Currency
obtained by converting the Specified Amount of each Component Currency of the
Second Currency into the First Currency at the Conversion Rate (determined as
provided above) for each such Component Currency on such date (or, if the First
Currency is a currency unit for which there is no quoted exchange rate in any
Component Currency, by converting the Specified Amount of each Component
Currency of the Second Currency into the Specified Amount of each Component
Currency of the First Currency at the Conversion Rate (determined as provided
above) for each such Component Currency on such date).
SECTION 713. Appointment of Authenticating Agent. The Company 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 or upon
exchange, registration of transfer or partial redemption thereof or
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pursuant to Section 405, 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 Trustee and shall at all times be a corporation having a
combined capital and surplus of not less than the equivalent of $50,000,000 and
subject to supervision or examination by Federal, state or District of Columbia
authority or the equivalent foreign authority, in the case of an Authenticating
Agent who is not organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia. 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, 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 such Authenticating Agent, shall continue to be an
Authenticating Agent; provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Company may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Trustee. 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, the Company may appoint a successor Authenticating
Agent which shall be acceptable to the Trustee and shall mail, or cause to be
mailed, written notice of such appointment by first-class mail, postage prepaid,
to all Holders of Registered Securities, if any, 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.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
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If an appointment with respect to one or more series is made pursuant
to this Section, 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 herein issued
under the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By
As Authenticating Agent
By
Authorized [Officer] [Signatory]
If all the Securities of a series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment or other place
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Company shall appoint in accordance with this Section an
Authenticating Agent (which may be an Affiliate of the Company if eligible to be
appointed as an Authenticating Agent hereunder) having an office in such Place
of Payment or other place designated by the Company with respect to such series
of Securities.
ARTICLE EIGHT
Holders' Lists and Reports by Trustee and Company
SECTION 801. Communication by Holders with Other Holders. Holders may
communicate pursuant to Section 312(b) of the Trust Indenture Act with other
Holders with respect to their rights under this Indenture. The Company, the
Trustee, the Registrar and anyone else shall have the protection of Section
312(c) of the Trust Indenture Act.
SECTION 802. Reports by Trustee. The Trustee shall report to the
Holders with as set out in Section 706 of this Indenture.
SECTION 803. Reports by Company. The Company shall file with the
Trustee and the Commission, and transmit to Holders, such information, documents
and reports, and such summaries thereof and copies of portions thereof, as may
be required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; 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 shall be so required to be filed with the Commission.
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ARTICLE NINE
Consolidation, Merger, Conveyance or Transfer
SECTION 901. Company May Consolidate, etc., Only on Certain Terms. The
Company shall not consolidate with or merge into any other corporation or convey
or transfer its properties and assets substantially as an entirety to any
Person, unless:
(1) the corporation formed by such consolidation or
into which the Company is merged or the Person which acquires
by conveyance or transfer the properties and assets of the
Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of
America or any state 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, if any, 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, no Event of Default, and no event which, after
notice or lapse of time, or both, would become an Event of
Default, shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating
that such consolidation, merger, conveyance or transfer and
such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 902. Successor Corporation Substituted. Upon any consolidation
or merger, or any conveyance or transfer of the properties and assets of the
Company substantially as an entirety in accordance with Section 901, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture and shall be subject to the obligations and restrictions
hereunder with the same effect as if such successor corporation had been named
as the Company herein all without any further act or deed on the part of such
successor corporation being required; and in the event of any such conveyance or
transfer, the Company (which term shall for this purpose mean the Person named
as the "Company" in the first paragraph of this instrument or any successor
corporation which shall have theretofore become such in the manner prescribed in
Section 901) shall be discharged from all liability under this Indenture and in
respect of the Securities and may be dissolved and liquidated.
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ARTICLE TEN
Supplemental Indentures
SECTION 1001. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or pursuant
to 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 corporation
to the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities;
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and
if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are
expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Company;
(3) to add any additional Events of Default with
respect to all or any series of the Securities (and, if such
Event of Default is applicable to less than all series of
Securities, specifying the series to which such Event of
Default is applicable);
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest
coupons; to change or eliminate any restrictions on the
payment of principal of or any premium or interest on Bearer
Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities (if permitted by applicable
laws and regulations), to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized
denominations; provided that any such addition or change shall
not adversely affect the interests of the Holders of
Securities of any series or any related Coupons in any
material respect;
(5) to change or eliminate any of the provisions of
this Indenture; provided that any such change or elimination
shall become effective only when there is no Security
Outstanding of any series created prior to the execution of
such supplemental indenture which is adversely affected by
such change in or elimination of such provision;
(6) to establish the form or terms of Securities of
any series as permitted by Sections 202 and 301;
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(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 708(b);
(8) if allowed under applicable laws and regulations,
to permit payment in the United States of principal, premium
or interest on Bearer Securities or Coupons, if any;
(9) to provide for the issuance of uncertificated
Securities of one or more series in addition to or in place
of certificated Securities;
(10) to cure any ambiguity or to correct or
supplement any provision herein which may be defective or
inconsistent with any other provision herein; or
(11) to make any other provisions with respect to
matters or questions arising under this Indenture; provided
such other provisions as may be made shall not adversely
affect the interests of the Holders of outstanding Securities
of any series in any material respect.
SECTION 1002. Supplemental Indentures with Consent of Holders. With
the consent of the Holders of not less than a majority in principal amount of
the Outstanding Securities of all series affected by such supplemental indenture
(acting as one class), by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by or pursuant to 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 without the consent of the Holder
of each outstanding Security effected 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 the rate
of interest thereon or any premium payable upon the redemption
thereof, 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 602, or change any Place of Payment where, or the
currency, currencies or currency unit or units in which, any
Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or
affect adversely the terms, if any, of conversion of any
Security into stock or other securities of the Company or of
any other corporation,
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(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, 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,
(3) change any obligation of the Company, with
respect to Outstanding Securities of a series, to maintain an
office or agency in the places and for the purposes specified
in Section 1102 for such series, or
(4) modify any of the provisions of this Section,
Section 604 or Section 1107, except to increase any such
percentage or to provide with respect to the Securities of any
particular series the right to condition the effectiveness of
any supplemental indenture as to that series on the consent of
the Holders of a specified percentage of the aggregate
principal amount of Outstanding Securities of such series
(which provision may be made pursuant to Section 202 or
Section 301, as the case may be, without the consent of any
Holder) 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 and Section 1107, or the deletion of this
proviso, in accordance with the requirements of Section 708(b)
and 1001(7).
For purposes of this Section 1002, if the Securities of any series are
issuable upon the exercise of warrants, each holder of an unexercised and
unexpired warrant with respect to such series shall be deemed to be a Holder of
Outstanding Securities of such series in the amount issuable upon the exercise
of such warrant. For such purposes, the ownership of any such warrant shall be
determined by the Company in a manner consistent with customary commercial
practices. The Trustee for such series shall be entitled to rely on an Officers'
Certificate as to the principal amount of Securities of such series in respect
of which consents shall have been executed by holders of such warrants.
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.
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 1003. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article
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or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive (in addition to the opinion which the
Trustee is entitled to receive pursuant to Section 202), and (subject to Section
701) 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,
immunities or liabilities under this Indenture or otherwise.
SECTION 1004. 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 1005. 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.
SECTION 1006. 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, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company 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.
ARTICLE ELEVEN
Covenants
SECTION 1101. Payment of Principal, Premium and Interest. The Company
covenants and agrees for the benefit of each series of Securities and Coupons,
if any, that it will duly and punctually pay the principal of (and premium, if
any, on) and interest, if any, on the Securities and Coupons, if any, of that
series in accordance with the terms of the Securities and Coupons, if any, of
such series and this Indenture.
SECTION 1102. Maintenance of Office or Agency. If Securities of a
series are issuable only as Registered Securities, the Company will maintain in
each Place of Payment for such series an office or agency where Securities of
that series 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 both Registered or Bearer Securities or only as Bearer Securities,
the Company will maintain (A) in
65
the Borough of Manhattan, The City of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange, where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related Coupons may be presented or surrendered
for payment in the circumstances described in the proviso contained in the last
sentence of this first paragraph of Section 1102 (and not otherwise), (B)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series which is located outside the United States, an office or agency
where Securities of that series and related Coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Securities of that series pursuant to Section 1108); provided, however, that if
the Securities of that series are listed on any stock exchange located outside
the United States and such stock exchange shall so require, the Company will
maintain a Paying Agent for the Securities of that series in any required city
located outside the United States, so long as the Securities of that series are
listed on such exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United
States, an office or agency where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series may
be surrendered for 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.
The Company will give prompt written notice to the Trustee and the Holders of
the location, and any change in the location, of any such office or agency. If
at any time the Company shall fail to maintain any such required office or
agency in respect of any series of Securities or shall fall to furnish the
Trustee with the address thereof, such presentations and surrenders of
Securities of that series may be made and notices and demands may be made or
served at the Corporate Trust Office of the Trustee, 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 1108) at the London office
of the Trustee (or an agent with a London office appointed by the Trustee and
acceptable to the Company), and the Company hereby appoints the same as its
agent to receive such respective presentations, surrenders, notices and demands.
No payment of principal, premium 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, that, if the Securities
of a series are denominated and payable in Dollars, payment of principal of and
premium, if any, and interest, if any, on any Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section
1108) shall be made at the office of the Company's Paying Agent in the Borough
of Manhattan, The City of New York, if (but only if) payment in Dollars of the
full amount of such principal, premium, interest or additional amounts, as the
case may be, at all offices or agencies 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.
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
66
no such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in accordance with the requirements
set forth above for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee and the Holders of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1103. Money for Securities Payments To Be Held in Trust. If
the Company 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
(and premium, if any, on) or interest, if any, on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the relevant currency (or a sufficient number of currency
units, as the case may be) sufficient to pay the principal (and premium, if any,
on) or 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, at or prior to the opening of business on each
due date of the principal of (and premium, if any, on) or interest, if any, on
any Securities of that series, deposit with a Paying Agent a sum sufficient to
pay the principal (and premium, if any) or interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, 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, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any, on) or interest, if any, on
Securities of that series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of that
series) in the making of any payment of principal (and
premium, if any, on) or interest, if any, on the Securities of
that series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
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
67
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 (and premium, if
any, on) or interest, if any, on any Security or Coupon of any series that
remains unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be repaid to the Company, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security and Coupons, if any, 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 and at the direction 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, notice that such money remains unclaimed and
that, after a date specified herein, 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. All moneys payable to the Company by the Trustee
or any Paying Agent as provided in the preceding sentence shall be paid to the
Company on May 31 of each year.
SECTION 1104. Restrictions on Secured Debt. The Company will not
itself, and will not permit any Restricted Subsidiary to, incur, issue, assume,
or guarantee any Debt, whether or not evidenced by negotiable instruments or
securities, secured after the date hereof by Mortgage on any Principal Property
of the Company or any Restricted Subsidiary or any shares of Capital Stock of or
Debt of any Restricted Subsidiary, without effectively providing that all the
Securities Outstanding (together with, if the Company shall so determine, any
other Debt of the Company or such Restricted Subsidiary then existing or
thereafter created which is not subordinate to any of the Securities) shall be
secured equally and ratably with (or, at the option of the Company, prior to)
such secured Debt, so long as such secured Debt shall be so secured, unless,
after giving effect thereto, the aggregate amount of all such secured Debt of
the Company and its Restricted Subsidiaries (excluding any Debt secured by
Mortgages permitted to be incurred by clauses (a) through (k) below) would not
exceed the Applicable Percentage of Consolidated Net Assets; provided, however,
that this Section shall not apply to, and there shall be excluded from secured
Debt in any computation under this Section, Debt secured by:
(a) any Mortgage if an amount of cash equal to the
net proceeds of the Debt secured by such Mortgage is used
within 12 months of the creation, incurrence or assumption of
such Mortgage to (i) acquire additional property or assets (or
to make investments in persons who, after giving effect to
such investments, will become Subsidiaries of the Company),
(ii) retire debt which is pari passu with the Securities
(provided that in connection with any such retirement, any
related loan commitment or the like shall be reduced in an
amount equal to the principal amount so retired) or (iii) make
an offer to purchase the
68
Securities at 100% of the principal amount thereof, plus
accrued interest, if any, to the date of purchase;
(b) Existing Mortgages;
(c) Mortgages on property or assets of any person
existing at the time such person becomes a Restricted
Subsidiary or merges into or consolidates with the Company or
a Restricted Subsidiary;
(d) Mortgages on property or assets or shares of
stock or Debt existing at the time of acquisition thereof by
the Company or any Restricted Subsidiary;
(e) Mortgages on property or assets or shares of
stock or Debt to secure the financing of the acquisition,
construction, alteration or improvement of property or assets
of the Company or any Restricted Subsidiary of the Company (or
of persons who, after giving effect to such financing, will
become Restricted Subsidiaries), provided that such Mortgages
are created not later than 18 months after such acquisition
or, in the case of construction, alteration or improvement of
property or assets, the later of the completion thereof or the
commencement of the commercial operation of such property or
assets;
(f) Mortgages in favor of the Company or any
Restricted Subsidiary;
(g) Mortgages in favor of or required by federal,
state or local governmental authorities or political
subdivisions thereof, including any department or
instrumentality thereof, and any other Mortgages incurred or
assumed in connection with the issuance of any industrial
revenue or similar bonds;
(h) Mortgages on property or assets of, or on any
shares of stock or other equity interest in, a Foreign
Subsidiary to secure Debt of a Foreign Subsidiary, or a
Non-Recourse Subsidiary to secure Non-Recourse Debt;
(i) Mortgages to secure Debt of joint ventures in
which the Company or a Subsidiary of the Company has an
interest, to the extent such Mortgages are on property or
assets of or equity interests in such joint ventures;
(j) Mortgages on current assets to secure Debt
incurred for working capital purposes, provided that such Debt
matures no later than 18 months from the date of incurrence;
(k) Mortgages securing judgments or appeal bonds
with respect to amounts being contested in good faith; and
69
(l) any extension, renewal or replacement, as a whole
or in part, of any Mortgage referred to in the foregoing
clauses (a) to (k), provided, however, that (i) such
extension, renewal or replacement Mortgage shall be limited to
all or a part of the same property or assets that secured the
Mortgage being extended, renewed or replaced and (ii) the
principal amount (or, if such Debt provides for an amount less
than the principal amount thereof to be due and payable upon a
declaration of acceleration thereof, such lesser amount) of
the Debt secured by such extended, renewed or replaced
Mortgage does not exceed the principal amount (or, if such
Debt provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of
acceleration or maturity thereof, such lesser amount) of Debt
which was secured by the Mortgage being extended, renewed or
replaced (plus the premiums and reasonable expenses incurred
in connection therewith).
SECTION 1105. Restrictions on Sale and Leaseback Transactions. The
Company will not itself, and will not permit any Restricted Subsidiary to, enter
into any transaction after the date hereof with any Person, providing for the
leasing by the Company or a Restricted Subsidiary of any Principal Property
which has been or is to be sold or transferred by the Company or such Restricted
Subsidiary to such Person (herein referred to as a "Sale and Leaseback
Transaction") unless:
(a) the Company or such Restricted Subsidiary would, at the time
of entering into the Sale and Leaseback Transaction, be entitled to
incur Debt secured by a Mortgage on the Principal Property to be
leased in an amount at least equal to the Attributable Debt in respect
of such transaction without equally and ratably securing the
Securities pursuant to Section 1104; or
(b) the proceeds of the sale of the Principal Property to be
leased are at least equal to the fair value of such Principal Property
(the amount of such proceeds, if other than in cash, to be determined
by the chief financial or accounting officer of the Company, whose
determination shall be conclusive) and an amount in cash equal to the
net proceeds are applied, within 12 months of the effective date of
such transaction, to (i) acquire additional assets (or to make
investments in entities which, after giving effect to such investment,
will become Restricted Subsidiaries), (ii) retire Debt which is pari
passu with the Securities (provided that in connection with any such
retirement, any related loan commitment or the like shall be reduced
in an amount equal to the principal amount so retired) or (iii) offer
to purchase the Securities at 100% of the principal amount thereof,
plus accrued interest, if any, to the date of purchase; or
(c) the lease in such Sale and Leaseback Transaction is for a
period, including renewal rights, of not in excess of 36 months; or
(d) the lease in such Sale and Leaseback Transaction is a lease
of Principal Property entered into within 18 months from the
acquisition of such
70
Principal Property or the transaction by which the person owning such
Principal Property became a Restricted Subsidiary, or in the case of
the construction, alteration or improvement of Principal Property, the
later of the completion of the construction, alteration or improvement
of such Principal Property or the commencement of commercial operation
of the Principal Property; or
(e) such Sale and Leaseback Transaction is entered into between
the Company and a Restricted Subsidiary or between Restricted
Subsidiaries.
SECTION 1106. Limitation on Affiliate Transactions. Neither the
Company nor any of its Subsidiaries shall sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into any contract, agreement, understanding, loan, advance
or guaranty with, or for the benefit of, an Affiliate of the Company (other than
a Subsidiary) (an "Affiliate Transaction") having a value, or for consideration
having a value, in excess of $20,000,000 individually or in the aggregate unless
the Board of Directors of the Company shall determine that the terms of such
Affiliate Transaction are no less favorable to the Company or such Subsidiary
than those which might be obtained at the time of such Affiliate Transaction
from persons who are not Affiliates. The restrictions of this Section 1106 are
not applicable to the payment of reasonable and customary fees to directors of
the Company who are not employees, the payment of compensation to officers of
the Company or any transaction between or among any of the Company and its
Subsidiaries.
SECTION 1107. Statement by Officers as to Default. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year, a
written certificate signed by the principal executive officer, the principal
financial officer or the principal accounting officer of the Company, stating
that:
(1) a review of the activities of the Company during
such year and of performance under this Indenture has been
made under such officer's supervision; and
(2) to such officer's knowledge, based on such
review, the Company has fulfilled all its obligations, and has
complied with all conditions and covenants, under this
Indenture throughout such year, or, if there has been a
default in the fulfillment of any such obligation, condition
or covenant, specifying each such default known to him and the
nature and status thereof. For purposes of this Section 1106,
compliance shall be determined without regard to any grace
period or requirement of notice provided pursuant to the terms
of this Indenture.
SECTION 1108. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Section 1104 or Section 1105 if before the time for such compliance the Holders
of not less than a majority in principal amount of the Outstanding Securities of
all series affected thereby shall, by Act of such Holders (acting as one class),
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect
71
such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or Condition shall
remain in full force and effect.
SECTION 1109. 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 such series or any related Coupon additional amounts
as provided therein. Whenever in this Indenture there is mentioned, in any
context, the payment of the principal of or any premium or interest on, or in
respect of, any Security of any series or payment 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 this Section 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
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium 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 Officers' Certificate instructing the
Trustee and such Paying Agent or Paying Agents whether such payment of principal
of and any premium or interest on the Securities of that series shall be made to
Holders of Securities of that series or any related Coupons who are United
States Aliens (as defined in such Securities) 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
required by this Section. 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.
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. 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
202 or Section 301, as the case may be, for Securities of any series) in
accordance with this Article.
72
SECTION 1202. Election To Redeem; Notice to Trustee. If the Company
shall desire to exercise the right to redeem all, or, as the case may be, any
part of 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 and of
the principal amount of Securities of such series 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 1203. Selection by Trustee of Securities To Be Redeemed. If
less than all the Securities of any series 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 of $1,000 in excess thereof, except as otherwise
specified as contemplated by Section 202 or Section 301, as the case may be) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series.
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.
SECTION 1204. Notice of Redemption. Notice of redemption shall be
given not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, as provided in Section 106.
Each such notice of redemption shall specify the Redemption Date, the
Redemption Price, the Place or Places of Payment, that the Securities of such
series are being redeemed at the option of the Company pursuant to provisions
contained in the terms of the Securities of such series or in a supplemental
indenture establishing such series, if such be the case, together with a brief
statement of the facts permitting such redemption, that on the Redemption Date,
the Redemption Price will become due and payable upon each Security redeemed,
that payment will be made upon presentation and surrender of the applicable
Securities, that all Coupons, if any, maturing subsequent to the date fixed for
redemption shall be void, that any interest accrued to the Redemption Date will
be paid as specified in said notice, that the redemption is pursuant to the
sinking fund, if such is the case, and that on and after said Redemption Date
any interest thereon or on the portions thereof to be redeemed will cease to
accrue. If less than all the Securities of any series are to be redeemed, the
notice of redemption shall specify the registration
73
and, if any, CUSIP numbers of the Securities of such series to be redeemed, and,
if only Bearer Securities of any series are to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities, the last date on which
exchanges of Bearer Securities for Registered Securities not subject to
redemption may be made. In case any Security, of any series, is to be redeemed
in part only, the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the Redemption
Date, upon surrender of such Security and any Coupons appertaining thereto, a
new Security or Securities of such series in principal amount equal to the
unredeemed portion thereof and with appropriate Coupons will be issued, or, in
the case of Registered Securities providing appropriate space for such notation,
at the option of the Holders, the Trustee, in lieu of delivering a new Security
or Securities as aforesaid, may make a notation on such Security of the payment
of the redeemed portion thereof.
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 of the Company.
SECTION 1205. Deposit of Redemption Price. On or before the opening of
business on 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 1103) an amount of money in
the relevant currency (or a sufficient number of currency units, as the case may
be) 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 1206. 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 and the Coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, 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 at an office or agency located outside the United States (except
otherwise provided in Section 1102) and, unless otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, only upon
presentation and surrender of Coupons for such interest; provided further that,
unless otherwise specified as contemplated by Section 202 or Section 301, as the
case may be, 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 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 406.
74
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
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 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; 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 1102) and, unless otherwise specified as contemplated by Section 202 or
Section 301, as the case may be, only upon presentation and surrender of those
Coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1207. Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at a Place of Payment therefor (with,
if the Company 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 make available
for delivery to the Holder of such Security without service charge, a new
Security or Securities (with appropriate Coupons) of the same series and Stated
Maturity, 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 or, in the case of Registered
Securities providing appropriate space for such notation, at the option of the
Holder, the Trustee, in lieu of delivering a new Security or Securities as
aforesaid, may make a notation on such Security of the payment of the redeemed
portion thereof.
ARTICLE THIRTEEN
Sinking Funds
SECTION 1301. 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 202 or Section
301, as the case may be, 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
75
reduction as provided in Section 1302. 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 1302. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities (including all unmatured
Coupons appertaining thereto) of a series (other than any previously called for
redemption) and (2) may 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 the
outstanding principal amount thereof 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 1303. Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee 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 thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 1302 and
will also deliver to the Trustee any Securities (including all unmatured Coupons
appertaining thereto) to be so delivered. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 1203 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 1204. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1206 and 1207.
IN WITNESS THEREOF, 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.
MANOR CARE, INC.,
By
Name:
Title:
THE CHASE MANHATTAN BANK, as Trustee,
By
Name:
Title:
▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ________, 1996, before me personally came, to me
known, who, being by me duly sworn, did depose and say that he is a, of MANOR
CARE, 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.
Notary Public
Name:
Notary Public, Commonwealth of
Massachusetts
No.:
Qualified in:
Commission Expires:
[ ] )
) ss.:
COUNTY OF [ ] )
On the ____ day of 1996, before me personally came, to me known, who,
being by me duly sworn, did depose and say that he is a, of [NAME OF TRUSTEE],
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.
Notary Public
Name:
Notary Public,
No.:
Qualified in:
Commission Expires:
Exhibit A
(Form of Fixed Rate
Security with and without Optional
Redemption Provision)
(Form of Face of [Note] 1)
[Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]2
No.:
MANOR CARE, INC.
% [Note] Due
No.: CUSIP No.:
$
MANOR CARE, INC., a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company", which term includes
any successor corporation under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to______________ or
registered assigns, the principal sum of _____________ Dollars, at the office or
agency of the Company in the Borough of Manhattan, The City and State of New
York, ___________________, in such coin on or currency of the United States of
America as at the time of payment shall be legal tender for the payments of
public and private debts, and to pay interest, semi-annually on ______________
and _____________ of each year, on said principal sum at said office or agency,
in like coin or currency, at the rate of ________% per annum, from the
____________ or the _____________, as the case may be, next preceding the date
of this [Note] to which interest has been paid, unless the date hereof is a date
to which interest has been paid, in which case from the date of this [Note], or
unless no interest has been paid on the [Notes] due (as defined on the reverse
hereof), in which case from ______________ until payment of said principal sum
has been made or duly provided for. Notwithstanding the
--------
1 Bracketed references to "Note" or "Notes" should be changed to reflect the
designation of the series of Securities being issued.
2 The bracketed language is to be included if the Securities are included
within DTC's book-entry system.
2
foregoing, if the date hereof is after _______________ or _____________ as the
case may be, and before the following _____________ or ____________, this [Note]
shall bear interest from such ________________ or ______________, provided,
however, that if the Company shall default in the payment of interest due on
such _____________ or _____________, then this [Note] shall bear interest from
the next preceding ______________ or _______________ to which interest has been
paid, or, if no interest has been paid on the [Notes] due _________, from
______________. The interest so payable on any ______________ or ______________
will subject to certain exceptions provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this [Note] is registered at
the close of business on such________________ or _______________, as the case
may be, next preceding such _______________ or _______________, unless the
Company shall default in the payment of interest due on such interest payment
date, in which case such defaulted interest, at the option of the Company, may
be paid to the person in whose name this [Note] is registered at the close of
business on a special record date for the payment of such defaulted interest
established by notice to the registered holders of [Notes] not less than 10 days
preceding such special record date or may be paid in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
[Notes] due may be listed. Payment of interest may, at the option of the
Company, be made by check mailed to the registered address of the person
entitled thereto.
Reference is made to the further provisions of thus [Note] set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This [Note] shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: MANOR CARE, INC.
by
-------------------------
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities of the Series
designated herein issued under the
within-mentioned Indenture.
by
--------------------------
[NAME OF TRUSTEE], as Trustee
by
----------------------------
Authorized Signatory
4
(Form of Reverse of [Note])
This [Note] is one of a duly authorized issue of unsecured debentures,
notes or other evidences of indebtedness of the Company (hereinafter called the
"Securities), of the series hereinafter specified, all issued or to be issued
under an indenture dated as of November [ ], 1996 (hereinafter called the
"Indenture"), as trustee (hereinafter called the "Trustee"), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
description of the relative rights and duties thereunder of the Trustee, the
Company and the holders of the Securities. The Securities may be issued in one
or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest at different
rates, may be subject to different redemption provisions, may be subject to
different sinking, purchase or analogous funds, may be subject to different
covenants and Events of Default and may otherwise vary as in the Indenture
provided. This [Note] is one of a series designated as the ______% [Notes] due
of the Company (hereinafter called the "[Notes] due _______") issued under the
Indenture, limited in aggregate principal amount to $___________.
In case an Event of Default with respect to the [Notes] due
_______________, as defined in the Indenture, shall have occurred and be
continuing, the principal hereof together with interest accrued thereon, if any,
may be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Securities at the time outstanding of all
series to be affected (acting as one class) to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying in any
manner the rights of the holders of the Securities of such series to be
affected; provided, however, that no such supplemental indenture shall, among
other things, (1) change the fixed maturity of the principal of, or any
installment of principal of or interest on, any Security; (ii) reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof; (iii) impair the right to institute suit for the
enforcement of any such payment on or after the fixed maturity thereof (or, in
the case of redemption, on or after the redemption date); (iv) 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, or the
consent of whose holders is required for any waiver (of compliance with certain
provisions of the Indenture or certain defaults thereunder and their
consequences) provided for in the Indenture; (v) change any obligation of the
Company, with respect to outstanding Securities of a series, to maintain an
office or agency in the places and for the purposes specified in the Indenture
for such series; or (vi) modify any of the foregoing provisions or the
provisions for the waiver of certain covenants and defaults, except to increase
any applicable percentage of the aggregate principal amount of outstanding
Securities the consent of the holders of which is required or to provide with
respect to any particular series the right to condition the effectiveness of any
supplemental indenture as to that series on the consent of the holders of a
specified percentage of the aggregate principal amount of outstanding Securities
of such series or to provide that certain other provisions of the
5
Indenture cannot be modified or waived without the consent of the holder of each
outstanding Security affected thereby. It is also provided in the Indenture that
the holders of a majority in aggregate principal amount of the Securities of a
series at the time outstanding may on behalf of the holders of all the
Securities of such series waive any past default under the Indenture with
respect to such series and its consequences, except a default in the payment of
the principal of, premium, if any, or interest, if any, on any Security of such
series or in respect of a covenant or provision which cannot be modified without
the consent of the Holder of each outstanding Security of the series affected.
Any such consent or waiver by the holder of this [Note] shall be conclusive and
binding upon such holder and upon all future holders and owners of the [Note]
and any [Notes] due _______________ which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this [Note] or such other [Notes] due ____________.
No reference herein to the Indenture and no provision of this [Note]
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, premium, if any, and
interest on this [Note] at the place, at the respective times, at the rate and
in the coin or currency herein prescribed.
The Indenture permits the Company to Discharge its obligations with
respect to the [Notes] due _______________ on the 91st day following the
satisfaction of the conditions set forth in the Indenture, which include the
deposit with the Trustee of money or U.S. Government Obligations or a
combination thereof sufficient to pay and discharge each installment of
principal of (including premium, if any, on) and interest, if any, on the
outstanding [Notes] due ___________.
If the Company shall, in accordance with Section 901 of the Indenture,
consolidate with or merge into any other corporation or convey or transfer its
properties and assets substantially as an entirety to any Person, the successor
shall succeed to, and be substituted for, the Person named as the "Company" on
the face of this [Note], all on the terms set forth in the Indenture.
The [Notes] due _______________ are issuable in registered form
without coupons in denominations of $1,000 or any integral multiple thereof. In
the manner and subject to the limitations provided in the Indenture, but without
the payment of any service charge, [Notes] due _______________ may be exchanged
for an equal aggregate principal amount of [Notes] due _______________ of other
authorized denominations at the office or agency of the Company maintained for
such purpose in the Borough of Manhattan, the City and State of New York.
[The [Notes] due _______________ may be redeemed as a whole, or from
time to time in part, at the option of the Company at any time upon mailing a
notice of such redemption not less than 30 nor more than 60 days prior to the
date fixed for redemption to the holders of the [Notes] due _______________ at
their last registered addresses, all as provided in the Indenture, at the
following optional redemption prices (expressed in percentages of the principal
amount), together in each case with accrued interest to the date fixed for
redemption.
6
If redeemed during the twelve-month period beginning
Year Percentage
]3
Upon due presentment for registration of transfer of this [Note] at
the office or agency of the Company for such registration in the Borough of
Manhattan, the City and State of New York, a new [Note] or [Notes] of authorized
denominations for an equal aggregate principal amount will be issued to the
transferee in exchange herefor, subject to the limitations provided in the
Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
Prior to due presentment for registration of transfer of this [Note],
the Company, the Trustee and any agent of the Company or the Trustee may deem
and treat the registered holder hereof as the absolute owner of this [Note]
(whether or not this [Note] shall be overdue) for the purpose of receiving
payment of the principal of, premium, if any, and interest on this Note, as
herein provided, and for all other purposes, and neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. All payments made to or upon the order of such
registered holder shall, to the extent of the sum or sums paid, effectively
satisfy and discharge liability for moneys payable on this [Note].
No recourse for the payment of the principal of, premium, if any, or
interest on this [Note], or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any indenture supplemental thereto or in any
[Note], or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law or by the enforcement of any
payment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
Unless otherwise defined in this [Note], all terms used in this [Note]
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
THIS [NOTE] SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
--------
3 Bracketed language to be included in Securities redeemable at the option of
the Company.
EXHIBIT B
[FORMS OF CERTIFICATION]
EXHIBIT B.1
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY]
CERTIFICATE
MANOR CARE, INC.
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that the above-captioned Securities are not being
acquired by or on behalf of a United States person, or for offer to resell or
for resale to a United States person or any person inside the United States, or,
if a beneficial interest in the Securities is being acquired by a United States
person, that such United States person is a financial institution as defined in
Section 1.165-12(c)(1)(v) of the United States Treasury Regulations, or is
acquiring through a financial institution, and that the Securities are held by a
financial institution that has agreed to comply with the requirements of Section
1650(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder and that it is not purchasing for offer to resell or
for resale inside the United States.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States, or any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "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.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the
above-captioned Securities in bearer form as to all such Securities.
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.
2
Dated: ___________, 19__
[To be dated on or after
____________, 19__ (the date
determined as provided in the Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
-------------------------------------------
(Authorized Signatory)
Name:
Title:
EXHIBIT B.2
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR
AND CEDEL S.A.
IN CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY]
CERTIFICATE
MANOR CARE, INC.
[Insert title or sufficient description
of Securities to be delivered]
This is to certify with respect to $_________ principal amount of the
above-captioned Securities (i) that we have received from each of the persons
appearing in our records as persons entitled to a portion of such principal
amount (our "Qualified Account Holders") a certificate with respect to such
portion substantially in the form attached hereto and (ii) that we are not
submitting herewith for exchange any portion of the temporary global Security
representing the above-captioned Securities excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any portion of
the part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
Date:
[To be dated no earlier
than the Exchange Date]
[▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE, as
Operator of the Euro-clear System]
[CEDEL S.A.]
By
--------------------------------
EXHIBIT B.3
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR
AND CEDEL S.A. TO OBTAIN
INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
MANOR CARE, INC.
[Insert title or sufficient
description of Securities]
We confirm that the interest payable on the Interest Payment Date on
[Insert Date] will be paid to each of the persons appearing in our records as
being entitled to interest payable on such date from whom we have received a
written certification, dated not earlier than such Interest Payment Date,
substantially in the form attached hereto. We undertake to retain certificates
received from our member organizations in connection herewith for four years
from the end of the calendar year in which such certificates are received.
We undertake that any interest received by us and not paid as provided
above shall be returned to the Trustee for the above Securities immediately
prior to the expiration of two years after such Interest Payment Date in order
to be repaid by such Trustee to the above issuer at the end of two years after
such Interest Payment Date.
Date: ____________, 19__
[To be dated on or after the
relevant Interest Payment Date]
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK, BRUSSELS OFFICE, as Operator
of the Euro-clear System]
[CEDEL S.A.]
By
------------------------------------
EXHIBIT B.4
[FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS
TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE)
CERTIFICATE
MANOR CARE, INC.
[Insert title or sufficient
description of Securities]
This is to certify that as of the Interest Payment Date on [Insert
Date] and except as provided in the third paragraph hereof, the above-captioned
Securities held by you for our account are not beneficially owned by a United
States person, and have not been acquired by or on behalf of a United States
person, or for offer to resell or for resale to a United States person or any
person inside the United States, or, if any of such Securities held by you for
our account are beneficially owned by a United States person, (i) such United
States person is a financial institution within the meaning of Section
1.165-12(c)(1)(v) of the United States Treasury Regulations purchasing for its
own account or has acquired such Securities through a financial institution and
(ii) such Securities are held by a financial institution that has agreed to
comply with the requirements of Section 1650(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder and
that it did not purchase for offer to resell or for resale inside the United
States.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States or any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "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.
This certificate excepts and does not relate to U.S. $__________
principal amount of the above-captioned Securities appearing in your books as
being held for our account as to which we are not yet able to certify and as to
which we understand interest cannot be credited unless and until we are able to
so certify.
2
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.
Date: ___________, 19__
[To be dated on or after
the 15th day before the
relevant Interest Payment Date]
[Name of Person Entitled to Receive Interest]
--------------------------------------------
(Authorized Signature)
Name:
Title:
EXHIBIT B.5
[FORM OF CONFIRMATION TO BE SENT TO
PURCHASERS OF BEARER SECURITIES]
By your purchase of the securities referred to in the accompanying
confirmation (the "Securities"):
You represent that you are not a United States person or, if you are a
United States person, you are a financial institution as that term is defined in
Section 1.165-12(c)(1)(v) of the United States Treasury Regulations, or are
acquiring through a financial institution, and that the Securities will be held
by a financial institution that agrees to comply with the requirements of
Section 1650(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of
1986, as amended, and the regulations thereunder and are not purchasing the
Securities on behalf of any United States person other than such a financial
institution or for offer to resell or for resale inside the United States.
If you are a dealer, (a) you also represent that you have not offered,
sold or delivered, and agree that you will not offer, sell, resell or deliver,
any of such Securities, directly or indirectly, in the United States or to any
United States person other than such a financial institution and (b) you agree
that you will deliver to all purchasers of such Securities from you a written
statement in this form.
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 and "United States
person" means a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States and an estate or trust the income of which is subject to United
States Federal income taxation regardless of its source.