Exhibit 2
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CONFORMED COPY
AXA,
Issuer
TO
The Bank of New York,
Trustee
----------------
INDENTURE
Dated as of December 15, 2000
----------------
Debt Securities
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AXA
Reconciliation and tie between Trust Indenture Act of 1939, as amended by the
Trust Indenture Reform Act of 1990, and Indenture, dated as of December 15,
2000.
Trust Indenture Debt Securities
Act Section Indenture Section
--------------- -----------------
Section 310 (a)(1) ........................................ 6.09
(a)(2) ........................................ 6.09
(a)(3) ........................................ Not Applicable
(a)(4) ........................................ Not Applicable
(b) ........................................... 6.08
6.10
(c) ........................................... Not Applicable
Section 311 (a) ........................................... 6.13
(b) ........................................... 6.13
(c)............................................ Not Applicable
Section 312 (a) ........................................... 7.01
7.02(a)
(b) ........................................... 7.02(b)
(c)............................................ 7.02(c)
Section 313 (a) ........................................... 7.03(a)
(b) ........................................... 7.03(a)
(c)............................................ 1.06, 7.03(a)
(d) ........................................... 7.03(b)
Section 314 (a) ........................................... 7.04
(b) ........................................... Not Applicable
(c)(1) ........................................ 1.02
(c)(2) ........................................ 1.02
(c)(3) ........................................ Not Applicable
(d) ........................................... Not Applicable
(e)............................................ 1.02
(f)............................................ Not Applicable
Section 315 (a) ........................................... 6.01, 603
(b) ........................................... 6.02
(c) ........................................... 5.04, 6.01
(d)(1) ........................................ 6.01, 6.03
(d)(2) ........................................ 6.01, 6.03
(d)(3) ........................................ 6.03
(e) ........................................... 5.14
Section 316 (a)(1)(A) ..................................... 5.02, 5.12
i
(a)(l)(B) ...................................... 5.13
(a)(2) ......................................... Not Applicable
(a)(last sentence) ............................. 1.01
(b) ............................................ 5.08
Section 317 (a)(1) ......................................... 5.03
(a)(2) ......................................... 5.04
(b) ............................................ 10.03
Section 318 (a) ............................................ 1.07
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
ii
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS ........................................... 1
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS .................. 11
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE ................ 12
SECTION 1.04. ACTS OF HOLDERS ....................................... 13
SECTION 1.05. NOTICES, ETC. TO TRUSTEE AND COMPANY .................. 16
SECTION 1.06. NOTICE TO HOLDERS; WAIVER ............................. 17
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT ..................... 18
SECTION 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS .............. 18
SECTION 1.09. SUCCESSORS AND ASSIGNS ................................ 18
SECTION 1.10. SEPARABILITY CLAUSE ................................... 18
SECTION 1.11. BENEFITS OF INDENTURE ................................. 18
SECTION 1.12. GOVERNING LAW ......................................... 18
SECTION 1.13. SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS ................. 19
SECTION 1.14. APPOINTMENT OF AGENT FOR SERVICE ...................... 19
SECTION 1.15. CALCULATION AGENT ..................................... 20
ARTICLE 2
DEBT SECURITY FORMS
SECTION 2.01. FORMS GENERALLY ....................................... 20
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION ....... 21
ARTICLE 3
THE DEBT SECURITIES
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES .................. 21
SECTION 3.02. DENOMINATIONS ......................................... 25
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING ........ 25
SECTION 3.04. TEMPORARY DEBT SECURITIES ............................. 27
SECTION 3.05. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE ... 28
SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES . 32
SECTION 3.07. PAYMENT; INTEREST RIGHTS PRESERVED .................... 34
SECTION 3.08. PERSONS DEEMED OWNERS ................................. 35
SECTION 3.09. CANCELLATION .......................................... 36
SECTION 3.10. COMPUTATION OF INTEREST ............................... 36
SECTION 3.11. CUSIP NUMBERS ......................................... 36
SECTION 3.12. COMPLIANCE WITH CERTAIN LAWS AND REGULATIONS .......... 37
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ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE ............... 37
SECTION 4.02. DEFEASANCE UPON DEPOSIT OF MONEYS, U.S. GOVERNMENT
OBLIGATIONS OR FOREIGN GOVERNMENT SECURITIES .......... 38
SECTION 4.03. APPLICATION OF TRUST MONEY ............................ 40
SECTION 4.04. REPAYMENT TO COMPANY .................................. 41
SECTION 4.05. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS AND FOREIGN
GOVERNMENT SECURITIES ................................. 41
SECTION 4.06. REINSTATEMENT ......................................... 41
SECTION 4.07. RETURN OF UNCLAIMED MONEY ............................. 41
ARTICLE 5
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT ..................................... 42
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT .... 42
SECTION 5.03. DEFAULTS .............................................. 43
SECTION 5.04. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE ............................................ 43
SECTION 5.05. TRUSTEE MAY FILE PROOFS OF CLAIM ...................... 44
SECTION 5.06. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT
SECURITIES ............................................ 45
SECTION 5.07. APPLICATION OF MONEY COLLECTED ........................ 45
SECTION 5.08. LIMITATION ON SUITS ................................... 46
SECTION 5.09. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST, IF ANY .......................... 47
SECTION 5.10. RESTORATION OF RIGHTS AND REMEDIES .................... 47
SECTION 5.11. RIGHTS AND REMEDIES CUMULATIVE ........................ 47
SECTION 5.12. DELAY OR OMISSION NOT WAIVER .......................... 47
SECTION 5.13. CONTROL BY HOLDERS .................................... 48
SECTION 5.14. WAIVER OF PAST DEFAULTS ............................... 48
SECTION 5.15. UNDERTAKING FOR COSTS ................................. 49
SECTION 5.16. WAIVER OF USURY, STAY OR EXECUTION LAWS ............... 49
ARTICLE 6
THE TRUSTEE
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES ................... 49
SECTION 6.02. NOTICE OF DEFAULTS .................................... 50
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE ............................. 50
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT
SECURITIES ............................................ 52
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SECTION 6.05. MAY HOLD DEBT SECURITIES .............................. 52
SECTION 6.06. MONEY HELD IN TRUST ................................... 52
SECTION 6.07. COMPENSATION AND REIMBURSEMENT ........................ 52
SECTION 6.08. DISQUALIFICATION; CONFLICTING INTERESTS ............... 53
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY ............... 53
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR ..... 54
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR ................ 56
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS .............................................. 57
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS ..................... 57
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT ................... 57
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS ............................................... 59
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS ............................................... 60
SECTION 7.03. REPORTS BY TRUSTEE .................................... 60
SECTION 7.04. REPORTS BY COMPANY .................................... 61
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 8.01. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS ... 62
SECTION 8.02. SUCCESSOR PERSON SUBSTITUTED .......................... 63
SECTION 8.03. ASSUMPTION OF OBLIGATIONS ............................. 63
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS .... 65
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS ....... 66
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES .................. 68
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURES ..................... 68
SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT ................... 68
SECTION 9.06. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL
INDENTURES ............................................ 68
ARTICLE 10
COVENANTS
SECTION 10.01. PAYMENT OF PRINCIPAL, PREMIUM, AND INTEREST .......... 68
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY ...................... 69
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SECTION 10.03. MONEY FOR PAYMENTS TO BE HELD IN TRUST ............... 70
SECTION 10.04. CORPORATE EXISTENCE .................................. 71
SECTION 10.05. STATEMENT AS TO COMPLIANCE ........................... 71
SECTION 10.06. ORIGINAL ISSUE DISCOUNT .............................. 72
SECTION 10.07. STATEMENT BY OFFICERS AS TO DEFAULT .................. 72
ARTICLE 11
REDEMPTION OF DEBT SECURITIES
SECTION 11.01. APPLICABILITY OF ARTICLE ............................. 72
SECTION 11.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE ................ 72
SECTION 11.03. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE
REDEEMED ............................................. 72
SECTION 11.04. NOTICE OF REDEMPTION ................................. 73
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE .......................... 74
SECTION 11.06. DEBT SECURITIES PAYABLE ON REDEMPTION DATE ........... 74
SECTION 11.07. DEBT SECURITIES REDEEMED IN PART ..................... 74
ARTICLE 12
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
SECTION 12.01. SUBORDINATED DEBT SECURITIES SUBORDINATE TO CLAIMS
OF SENIOR CREDITORS .................................. 75
SECTION 12.02. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS .......... 77
SECTION 12.03. TRUSTEE TO EFFECTUATE SUBORDINATION .................. 78
SECTION 12.04. NO WAIVER OF SUBORDINATION PROVISIONS ................ 78
SECTION 12.05. NOTICE TO TRUSTEE .................................... 78
SECTION 12.06. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT .................................... 79
SECTION 12.07. TRUSTEE NOT FIDUCIARY FOR SENIOR CREDITORS ........... 79
SECTION 12.08. RIGHTS OF TRUSTEE AS SENIOR CREDITOR; PRESERVATION
OF TRUSTEE'S RIGHTS .................................. 79
SECTION 12.09. ARTICLE APPLICABLE TO PAYING AGENTS .................. 79
SECTION 12.10. RIGHTS OF THE COMPANY ................................ 80
vi
INDENTURE, dated as of December 15, 2000 between AXA, a SOCIETE ANONYME
A DIRECTOIRE ET CONSEIL DE SURVEILLANCE organized under the laws of France
(herein called the "COMPANY"), having its registered office at ▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ and The Bank of New York, a New York banking
corporation, as Trustee (herein called the "TRUSTEE"), having its Corporate
Trust Office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
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 Debt Securities
(herein called the "DEBT SECURITIES"), to be issued in one or more series,
represented by one or more Global Securities in registered or bearer form with
or without Coupons for payments attached, or represented by definitive Debt
Securities in registered or bearer form with or without bearer Coupons for
payments attached, the amount and terms of each such series to be determined as
hereinafter provided. Debt Securities issued pursuant to this Indenture may
include senior ("SENIOR DEBT SECURITIES") or subordinated ("SUBORDINATED DEBT
SECURITIES") obligations of the Company.
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 Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Debt Securities and holders of
Coupons, if any, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) 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;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles
and, except as otherwise expressly provided, the term "generally accepted
accounting principles", with respect to any computation required or permitted
hereunder shall mean such accounting principles as are accepted in the Republic
of France;
(d) 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; and
(e) unless the context requires, any reference to an "Article" or a
"Section" refers to an Article or Section of this Agreement.
"ACT", when used with respect to any Holder, has the meaning specified
in Section 1.04.
"ADDITIONAL AMOUNTS" shall have the meaning set forth in any
supplemental indenture with respect to a series of Debt Securities.
"ADDITIONAL INTEREST" shall have the meaning set forth in any
supplemental indenture with respect to a series of Debt Securities.
"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.
"AGENT MEMBER" means a member of, or participant in, any Depository.
"ARREARS OF INTEREST" shall have the meaning set forth in any
supplemental indenture with respect to a series of Debt Securities.
"AUDITORS" means the Auditors from time to time of the Company or if
there shall be joint Auditors of the Company any one or more of such joint
Auditors.
2
"AUTHENTICATING AGENT" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Debt Securities.
"AUTHORIZED NEWSPAPER" means a newspaper in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in the place in
connection with which the term is used, which will be THE FINANCIAL TIMES of
London, if practicable, THE WALL STREET JOURNAL, if practicable, and for so long
as any Debt Securities are listed on the Luxembourg Stock Exchange, the
LUXEMBURGER WORT, and if it shall be impracticable in the opinion of the Trustee
to make any publication of any notice required hereby in any such newspaper,
shall mean any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee not to be unreasonably withheld.
"BUSINESS DAY" means, with respect to any Place of Payment, except as
may otherwise be provided in the form of Debt Securities of any particular
series, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"CALCULATION AGENT" means the Person, if any, authorized by the Company
to calculate the interest rate or other amounts from time to time in relation to
any series of Debt Securities.
"CLEARSTREAM, LUXEMBOURG" means, Clearstream Banking, SOCIETE ANONYME,
or its nominee, or their successor.
"COMMISSION" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor.
"COMPANY REQUEST" and "COMPANY ORDER" mean, respectively, a written
request or order signed in the name of the Company by a member of the Management
Board or an Executive Director, and delivered to the Trustee.
3
"CORPORATE TRUST OFFICE" means the office of the Trustee in which its
corporate trust business is principally administered, located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
The term "CORPORATION" includes corporations, associations, companies
(including, without limitation, limited liability companies and joint-stock
companies) and business trusts.
"COUPON" or "COUPONS" means any interest coupon or coupons, as the case
may be, appertaining to any Debt Securities. "Debt Securities" has the meaning
set forth in the recitals of the Company herein and more particularly means any
series of Debt Securities issued, authenticated and delivered under this
Indenture.
"DEBT SECURITY" means one of the Debt Securities.
"DEBT SECURITY REGISTER" and "DEBT SECURITY REGISTRAR" have the
respective meanings specified in Section 3.05.
"DEFAULT" has the meaning specified in Section 5.03.
"DEFAULTED INTEREST" has the meaning set forth in Section 3.07(b).
"DEPOSITORY" means, with respect to Debt Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, a clearing agency that is designated to act as Depository for such
Securities as contemplated by Section 3.01.
"DISCHARGED" has the meaning specified in Section 4.02.
"DISCOUNT SECURITY" means any Debt Security which, at any point during
the term of such Debt Security, provides for an amount less than the principal
amount to be due and payable upon an acceleration of the Maturity thereof
pursuant to Section 5.02.
"DOLLAR", "U.S. DOLLAR" or "$" or any similar reference means the coin
or currency of the United States which as at the time of payment is legal tender
for the payment of public and private debts.
"DTC" means The Depository Trust Company or its nominee or their
successor.
4
"EURO" or [EURO] means the single currency of the participating member
states in the Third Stage of European economic and monetary union pursuant to
the Treaty establishing the European Community (as amended from time to
time). "PARTICIPATING MEMBER STATES" means those member states of the
European Union from time to time which adopt a single, shared currency in the
Third Stage, as defined and identified in the EMU legislation.
"EUROCLEAR" means, ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System, or its nominee, or their successor.
"EVENT OF DEFAULT" has the meaning specified in Section 5.01.
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934,
as amended.
"EXECUTIVE DIRECTOR" means the chairman of the Management Board
(PRESIDENT DU DIRECTOIRE), a general manager (DIRECTEUR GENERAL), or any other
individual to whom the chairman or the general manager has delegated his
authority.
"EXPIRATION DATE" has the meaning specified in Section 1.04.
"FOREIGN CURRENCY" means the euro or any currency issued by the
government of a country (or a group of countries or participating member states)
other than the United States which as at the time of payment is legal tender for
the payment of public and private debts.
"FOREIGN GOVERNMENT SECURITIES" means with respect to Debt Securities
and Coupons, if any, of any series that are denominated in a Foreign Currency,
non-callable (i) direct obligations of the participating member state or
government that issued such Foreign 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
participating member state or government, the payment of which obligations is
unconditionally guaranteed as a full faith and credit obligation of such
participating member state or government (which shall include a depository
receipt issued by a bank or trust company as custodian with respect to any such
obligations or a specific payment of interest on or principal of any such
obligation held by such custodian for the account of the holder of a depositary
receipt). For the avoidance of doubt, for all purposes hereof, euro shall be
deemed to have been issued by each participating member state from time to time.
5
"GLOBAL SECURITY" means (i) with respect to Debt Securities issued in
registered form, a global certificate evidencing all or part of a series of Debt
Securities, authenticated and delivered to the Holder and registered in the name
of the Holder or its nominee and, (ii) with respect to Debt Securities issued in
bearer form, a global security in bearer form evidencing all or a part of a
series of Debt Securities without Coupons for payments attached, authenticated
and delivered to the Holder and payable to bearer for such series or such
portion of such series, or any other Holder.
"HOLDER" means a Person who shall at the time be the bearer of any
bearer Debt Security in global or definitive form or in whose name a registered
Debt Security in global or definitive form is registered in the Debt Security
Register.
"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 and forms of particular series of Debt Securities
established pursuant to Section 3.01.
"INTEREST", when used with respect to a 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 Debt Security,
means the Stated Maturity of any instalment of interest on such Debt Security.
"LIQUIDATOR" has the meaning specified in Section 12.06.
"MANAGEMENT BOARD" means the management board (DIRECTOIRE) of the
Company, which board may, to the extent permitted by applicable law, delegate
its authority.
"MANAGEMENT BOARD RESOLUTION" means a copy of a resolution certified by
a member of the Management Board of the Company to have been duly adopted by the
Management Board and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"MATURITY", when used with respect to any Debt Security, means the
date, if any, on which the principal of such Debt Security becomes due and
payable as therein or herein provided, whether by call for redemption,
winding-up of the Company or otherwise.
"OFFICER'S CERTIFICATE" means a certificate signed by a Member of the
Management Board or any person duly appointed in a Management Board
6
Resolution, in each case delivered to the Trustee. The officer signing an
Officer's Certificate given pursuant to Section 10.05 shall be the principal
executive, financial or accounting officer of the Company.
"OPINION OF COUNSEL" means a written opinion of legal advisors, who may
be legal advisors for, or an employee of, the Company or other legal advisors.
"OUTSTANDING", when used with respect to Debt Securities or any series
of Debt Securities means, as of the date of determination, all Debt Securities
or all Debt Securities of such series, as the case may be, theretofore
authenticated and delivered under this Indenture, EXCEPT:
(i) Debt Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities, or portions thereof, for whose payment or
redemption money, U.S. Government Obligations or Foreign Government
Securities in the necessary amount have been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company shall
act as its own Paying Agent) for the Holders of such Debt Securities
(which shall include for the avoidance of doubt Debt Securities as to
which defeasance has been effected pursuant to Section 4.01 and
4.02(a)); PROVIDED, that, if such Debt Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor reasonably satisfactory to the Trustee
has been made; and
(iii) Debt Securities which have been paid pursuant to Section
11.06 or in exchange for or in lieu of which other Debt Securities have
been authenticated and delivered pursuant to this Indenture, other than
any such Debt Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Debt
Securities are held by a bona fide purchaser in whose hands such Debt
Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Debt Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (i) the
principal amount of a Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as of
the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 5.02, (ii) the principal amount of a Debt Security
denominated in a Foreign Currency shall be the U.S. Dollar equivalent,
determined in the manner
7
provided as contemplated by Section 3.01 on the date of original issuance of
such Debt Security, of the principal amount (or, in the case of a Discount
Security, the U.S. dollar equivalent on the date of original issuance of such
Debt Security of the amount determined as provided in (i) above) of such Debt
Security unless the series of Debt Securities denominated in a Foreign Currency
must give such request, demand, authorization, direction, notice, consent or
waiver hereunder separately as a class or together with other series of Debt
Securities in each case denominated in the same Foreign Currency, in which case
this clause (ii) shall not be applicable, (iii) if the principal amount payable
at Stated Maturity of any Debt Security is not determinable upon original
issuance, the principal amount of such Debt Security that shall be deemed to be
Outstanding shall be the amount as specified or determined as contemplated by
Section 3.01, and (iv) Debt Securities owned by the Company or any other obligor
upon the Debt Securities or any Affiliate (other than an asset management
Affiliate holding Debt Securities on behalf of unrelated third parties) of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Debt Securities which a Responsible Officer of the
Trustee actually knows to be so owned shall be so disregarded. Debt Securities
so owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Debt Securities and that the pledgee is not the
Company or any other obligor upon the Debt Securities or any Affiliate (other
than an asset management Affiliate holding Debt Securities on behalf of
unrelated third parties) of the Company or of such other obligor.
"PAYING AGENT" means the Trustee or any other Person (which may include
the Company) authorized by the Company to pay the principal of (and premium, if
any) or interest, if any on any Debt Securities on behalf of the Company.
"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 Debt Securities of
any series, means the place or places where the principal of (and premium, if
any) and interest, if any, on the Debt Securities of that series are payable as
specified pursuant to Section 3.01 or, if not so specified, as specified in
Section 10.02.
"PREDECESSOR SECURITY" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
8
definition, any Debt Security authenticated and delivered under Section 3.06 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Debt Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Debt Security.
"REDEMPTION DATE", when used with respect to any Debt 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 Debt Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGULAR RECORD DATE" for any interest payable on any Interest Payment
Date on registered Debt Securities of any series means the date specified for
the purpose pursuant to Section 3.01.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any
officer of the Trustee assigned to or working in the corporate trust department
of the Trustee or, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his or her knowledge of
and familiarity with the particular subject.
"SENIOR CREDITORS" means creditors of the Company who are
unsubordinated creditors of the Company.
"SENIOR DEBT SECURITIES" has the meaning set forth in the recitals of
the Company herein and more particularly means any series of Senior Debt
Securities issued, authenticated and delivered pursuant to this Indenture as
created in accordance with Section 3.01.
"SENIOR DEBT SECURITY" means one of the Senior Debt Securities.
"SPECIAL RECORD DATE" has the meaning set forth in Section 3.07(b).
"STATED MATURITY", when used with respect to any Debt Security or any
instalment of principal thereof or interest thereon, means the date, if any,
specified in, or determined in accordance with the terms of, such Debt Security
or in the relevant Coupon, if any, appertaining thereto as the fixed date on
which the principal of such Debt Security or such instalment of principal or
interest is due and payable.
9
"SUBORDINATED DEBT SECURITIES" has the meaning set forth in the
recitals of the Company herein and more particularly means any series of
Subordinated Debt Securities issued, authenticated and delivered pursuant to
this Indenture as created in accordance with Section 3.01.
"SUBORDINATED DEBT SECURITY" means one of the Subordinated Debt
Securities.
"SUBSIDIARY" has the meaning attributed to it in Article 233-1 of the
French Commercial Code as in force at the date as of which this instrument was
executed.
"SUCCESSOR ENTITY" has the meaning specified in Section 8.03.
"SUCCESSOR PERSON" has the meaning specified in Section 8.01.
"TAXING JURISDICTION" means (a) with respect to the Company, the
Republic of France, (b) in the event of a consolidation, amalgamation, merger or
other transaction in accordance with Section 8.01, the jurisdiction of
incorporation of any Successor Person or (c) in the event of the assumption of
the obligations under any series of Debt Securities by a Successor Entity in
accordance with Section 8.03 or any subsequent consolidation, amalgamation,
merger or other transaction by or with such a Successor Entity in accordance
with Section 8.01, the jurisdiction in which such Successor Entity or such
Successor Person is organized or is tax resident, including in the case of
clauses (a), (b) and (c), any political subdivision or authority thereof or
therein having the power to tax. "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 the Person who is then the
Trustee hereunder, and if at any time there is more than one such Person,
"Trustee" shall mean and include each such Person; and "Trustee" as used with
respect to the Debt Securities of any series shall mean the Trustee with respect
to the Debt Securities of such series.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as amended
by the Trust Indenture Reform Act of 1990, as in force at the date as of which
this instrument was executed, except as provided in Section 9.05.
"UNITED STATES" and "U.S." mean the United States of America (including
the States and the District of Columbia) and, except in the case of Sections
6.09 and 6.14, its territories and possessions.
10
"U.S. GOVERNMENT OBLIGATIONS" means noncallable and nonredeemable (i)
direct obligations of the United States for which its full faith and credit are
pledged and/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 of the
United States, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation
or with respect to a specific payment of principal of or interest on any such
U.S. Government Obligation, which depository receipt is held by such custodian
for the account of the holder of such depository receipt, provided that (except
as required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or the
specific payment of principal of or interest on the U.S. Government Obligation
evidenced by such depository receipt.
"U.S. PERSON" means a person who is a citizen, or is treated as a
resident for U.S. tax purposes, of the United States, any corporation,
partnership or other entity organized under the laws of the United States or any
political subdivision thereof or an estate or trust the income of which is
subject to United States income taxation, regardless of its source.
"U.S. SECURITIES ACT" means, the United States Securities Act of 1933,
as amended.
"U.S. SECURITIES EXCHANGE ACT" means, the United States Securities
Exchange Act of 1934, as amended.
"VICE PRESIDENT", when used with respect to 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" means stock or other interests of any class or classes,
however designated, having ordinary voting power for the election of a majority
of the board of directors of a corporation, other than stock or other interests
having such power only by reason of the happening of a contingency.
SECTION 1.02. 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 such
certificates or opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an Officer's
Certificate, if to be given by the Company, stating that all conditions
precedent, if any, provided
11
for in this Indenture relating to the proposed action have been complied with
or, if to be given by counsel, an Opinion of Counsel stating that in the opinion
of the legal advisor rendering such opinion 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 otherwise specified with respect to any certificate or opinion
provided for in this Indenture and other than annual certificates provided
pursuant to Section 10.05, every certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that each Person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such Person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such Person, such
condition or covenant has been complied with.
SECTION 1.03. 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, legal advisors, 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, or
representations by, legal advisors
12
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 legal advisors know, or in the exercise of
reasonable care should know, that the certificate or opinion or representation
with respect to such matters is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, when it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "ACT" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.01) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. When such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) Except as may otherwise be provided in any supplemental indenture,
if the Company shall solicit from the Holders of Debt Securities of any series
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by Officer's Certificate, fix in advance a
record date for purposes of determining the identity of Holders of registered
Debt Securities entitled to give such request, demand, authorization, direction,
13
notice, consent, waiver or other Act, but the Company shall have no obligation
to do so. Any such record date shall be fixed at the Company's discretion and
the Company may not set a record date for, and the provisions of this clause
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If such a
record date is fixed by the Company, such request, demand, authorization,
direction, notice, consent and waiver or other Act may be sought or given before
or after the record date, but only the Holders of Outstanding Debt Securities of
record at the close of business on such record date shall be deemed to be
Holders of Debt Securities for the purpose of determining whether Holders of the
requisite proportion of Debt Securities of such series Outstanding have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the Debt
Securities of such series Outstanding shall be computed as of such record date;
PROVIDED that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders, or duly designated proxies,
of the requisite principal amount of Outstanding Debt Securities of such series
on such record date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders, or their duly designated proxies, of
the requisite principal amount of Outstanding Debt Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action to be given or taken by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of Debt Securities of the relevant series in the manner set forth in
Section 1.06.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Debt Securities of any series entitled to
join in the giving or making of (i) any declaration of acceleration referred to
in Section 5.02, (ii) any request to institute proceedings referred to in
Section 5.08 or (iii) any direction referred to in Section 5.13, in each case
with respect to Debt Securities of such series. If any record date is set
pursuant to this paragraph, the Holders of Outstanding Debt Securities of such
series on such record date, or their duly designated proxies, and no other
Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date;
PROVIDED that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders, or their duly designated
proxies, of the requisite principal amount of Outstanding Debt Securities of
such series on such record date. Nothing in this paragraph shall
15
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders,
or their duly designated proxies, of the requisite principal amount of
Outstanding Debt Securities of the relevant series on the date such action is
taken. Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the expense of the Company, shall cause notice of such record date,
the proposed action to be given or taken by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of Debt
Securities of the relevant series in the manner set forth in Section 1.06.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "EXPIRATION
DATE" and from time to time may change the Expiration Date to any earlier or
later day; PROVIDED that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party or parties hereto in
writing, and to each Holder of Debt Securities of the relevant series in the
manner set forth in Section 1.06, on or prior to the existing Expiration Date.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date and, if an Expiration Date is not
designated with respect to any record date set pursuant to this Section, the
party or parties hereto which set such record date shall be deemed to have
designated the 180th day after such record date as the Expiration Date with
respect thereto.
Without limiting the foregoing, a Holder of Outstanding Debt Securities
entitled hereunder to take any action hereunder with regard to any particular
Debt Security may do so with regard to all or any part of the principal amount
of such Debt Security or by one or more duly designated proxies each of which
may do so pursuant to such appointment with regard to all or any part of such
principal amount.
(d) The ownership of registered Debt Securities shall be proved by the
Debt Security Register.
(e) The ownership of a bearer Debt Security or Coupon, and the
principal amount and serial number of such Debt Security or Coupon and the date
of holding the same, may be proved by the production of such Debt Security or
Coupon or by a certificate executed by any trust company, bank, banker or
securities dealer satisfactory to the Trustee if such certificate shall be
deemed by the Trustee to be satisfactory. Each such certificate shall be dated
and shall state that on the date thereof a bearer Debt Security or Coupon of a
particular series of a
15
specified principal amount and bearing a specified serial number was deposited
with or exhibited to such trust company, bank, banker or securities dealer by
the Person named in such certificate. Any such certificate may be issued in
respect of one or more Debt Securities or Coupons specified therein. The holding
by the Person named in any such certificate of any Debt Security or Coupons
specified therein shall be presumed to continue for a period of one year from
the date of such certificate unless at the time of any determination of such
holding (i) another certificate bearing the same or a later date issued in
respect of the same Debt Security or Coupon shall be produced, or (ii) the Debt
Security or Coupon specified in such certificate shall be produced by some other
Person, or (iii) the Debt Security or Coupon specified in such certificate shall
have ceased to be Outstanding.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Debt Security (or part of the principal
amount of such Debt Security, if applicable) shall bind every future Holder of
the same Debt Security (or such part of the principal amount of such Debt
Security, if applicable) and the Holder of every Debt Security (or such part of
the principal amount of such Debt Security, if applicable) issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of any thing 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 Debt Security (or such part of the principal amount of such Debt Security,
if applicable) or such other Debt Security (or such part of the principal amount
of such Debt Security, if applicable).
SECTION 1.05. NOTICES, ETC. TO TRUSTEE AND COMPANY. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if made,
given, furnished or filed in writing (which may be via facsimile) to the Trustee
at its Corporate Trust Office, or
(b) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, addressed to the Company at the
address of its principal office specified in the first paragraph of this
Indenture or any supplemental indenture (unless another address has been
previously furnished in writing to the Trustee by the Company, in which case at
the last such address) marked "Attention: General Counsel".
16
SECTION 1.06. NOTICE TO HOLDERS; WAIVER. When this Indenture provides
for notice to Holders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) (a) with respect to Global
Securities in bearer form, if in writing and delivered or mailed and received,
first-class postage prepaid, to the Holder affected by such event, at the
address previously furnished in writing by the Holder to the Trustee and the
Company, (b) if Outstanding definitive Debt Securities are affected by such
event, at the option of the Company, either (x) published at least once in an
Authorized Newspaper in London and the Borough of Manhattan, The City of New
York or (y) if given in writing and mailed, first-class postage prepaid, to each
Holder of a registered Debt Security affected by such event in the manner at the
address appearing in the Debt Security Register not later than the latest date
(if any), and not earlier than the earliest date (if any), prescribed for the
giving of such notice, and (c) if Outstanding registered Debt Securities
(whether in global or definitive form) are affected, if given in writing and
mailed, first-class postage prepaid, to each Holder of a registered Debt
Security affected by such event in the manner at the address appearing in the
Debt Security Register not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice. The
Company agrees that, in the event that Debt Securities are listed on any stock
exchange, notice shall also be given in accordance with the rules of such stock
exchange.
Any notice published pursuant to clause 1.06(b) of the preceding
paragraph shall be deemed to have been given on the date of such publication or,
if published more than once, on the date of the first publication. If
publication is not practicable, notice will be valid if given in such other
manner, and shall be deemed to have been given on such date, as the Company
shall determine.
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 Debt Securities in the manner specified above, then notice shall be
valid if given in such other manner, and shall be deemed to have been given on
such date, as the Company shall determine. When notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a
17
condition precedent to the validity of any action taken in reliance upon such
waiver.
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control. If at any future time any
provision required to be included herein by the Trust Indenture Act as in force
at the date as of which this Indenture was executed or any limitation imposed by
the Trust Indenture Act at such date on any provision otherwise included herein
would not be so required or imposed (in whole or in part) if this Indenture were
executed at such future time, the Company and the Trustee may enter into one or
more indentures supplemental hereto pursuant to Section 9.01 to change or
eliminate (in whole or in part) such provision or limitation of this Indenture
in conformity with the requirements of the Trust Indenture Act as then in force.
SECTION 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.09. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.10. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Debt Securities or the Coupons shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. BENEFITS OF INDENTURE. Nothing in this Indenture or in
the Debt Securities or the Coupons, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder, and the
Holders of Debt Securities or the holders of Coupons, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 1.12. GOVERNING LAW. Unless otherwise stated in any
supplemental indenture with respect to a particular series of Debt Securities,
this Indenture and the Debt Securities and the Coupons shall be governed by and
construed in accordance with the laws of the State of New York, except as stated
in Section 2.01 and except for Section 12.01, which shall be governed by and
construed in accordance with the laws of the Republic of France (provided,
however, that any obligations, privileges, protections, rights and immunities of
the
18
Trustee under Section 12.01 shall be governed by and construed in accordance
with the laws of the State of New York).
SECTION 1.13. SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS. Except as
otherwise provided as contemplated by Section 3.01 with respect to any series of
Debt Securities, the terms of the Debt Securities (and Coupons, if any) shall
provide that, in any case where any Interest Payment Date, Redemption Date,
Maturity or Stated Maturity of a Debt Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of this
Indenture or the Debt Securities or Coupons other than a provision in the Debt
Securities or Coupons that specifically states that such provision shall apply
in lieu of this Section) payments of interest, if any (and premium, if any) or
principal 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 (or such other
Business Day as shall be provided in such Debt Security or Coupon) with the same
force and effect as if made on such Interest Payment Date, Redemption Date,
Maturity or Stated Maturity, PROVIDED that no interest shall accrue on such
payment for the period from and after such Interest Payment Date, Redemption
Date, Maturity or Stated Maturity, as the case may be.
SECTION 1.14. APPOINTMENT OF AGENT FOR SERVICE. By the execution and
delivery of this Indenture, the Company hereby designates and appoints General
Counsel, AXA Financial, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
as its authorized agent upon which process may be served in any suit or
proceeding in any Federal or State court in the Borough of Manhattan, The City
of New York arising out of or relating to the Debt Securities, the Coupons or
this Indenture, but for that purpose only, and agrees that service of process
upon said agent shall be deemed in every respect effective service of process
upon it in any such suit or proceeding in any Federal or State court in the
Borough of Manhattan, The City of New York. Such appointment shall be
irrevocable so long as any of the Debt Securities remain Outstanding until the
appointment of a successor by the Company and such successor's acceptance of
such appointment. Upon such acceptance, the Company shall notify the Trustee of
the name and address of such successor. The Company further agrees to take any
and all action, including the execution and filing of any and all such documents
and instruments, as may be necessary to continue such designation and
appointment of said agent in full force and effect so long as any of the Debt
Securities shall be Outstanding. The Trustee shall not be obligated and shall
have no responsibility with respect to any failure by the Company to take any
such action. The Company hereby submits (for the purposes of any such suit or
proceeding) to the jurisdiction of any such Federal or State court in the
Borough of Manhattan, The City of New York, in which any such suit or proceeding
is so instituted, and waives, to the extent it may effectively
19
do so, any objection it may have now or hereafter to the laying of the venue of
any such suit or proceeding.
SECTION 1.15. CALCULATION AGENT. If the Company appoints a Calculation
Agent pursuant to Section 3.01 with respect to any series of Debt Securities,
any determination of the interest rate on, or other amounts in relation to, such
series of Debt Securities in accordance with the terms of such series of Debt
Securities by such Calculation Agent shall (in the absence of manifest error,
bad faith or willful misconduct) be binding on the Company, the Trustee and all
Holders and (in the absence of manifest error, bad faith or willful misconduct)
no liability to the Holders shall attach to the Calculation Agent in connection
with the exercise or non-exercise by it of its powers, duties and discretions.
ARTICLE 2
DEBT SECURITY FORMS
SECTION 2.01. FORMS GENERALLY. The Debt Securities of each series and
the Coupons, if any, to be attached thereto shall be in such forms as shall be
established by or pursuant to action of the Management Board, or in one or more
indentures supplemental hereto, pursuant to Section 9.01, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with any applicable law or rule or regulation made
pursuant thereto or with the rules of any securities exchange or Depository
therefor, or as may, consistently herewith, be determined by the officers
executing such Debt Securities and Coupons, if any, all as evidenced by any such
execution; PROVIDED, however, that unless otherwise provided in the applicable
supplemental indenture with respect to any series of Subordinated Debt
Securities, any Subordinated Debt Securities and any Coupons attached thereto
(to the extent such Coupons rank equally with the underlying Subordinated Debt
Security) shall have endorsed thereon a statement in the following form or in
substantially the following form:
"The rights of the holder of the Subordinated Debt Security/Coupon are,
to the extent and in the manner set forth in Section 12.01 of the
Indenture, subordinated to the claims of other creditors of the
Company, and this Subordinated Debt Security/Coupon is issued subject
to the provisions of that Section 12.01, and the holder of this
Subordinated Debt Security/ Coupon, by accepting the same, agrees to
and shall be bound by such provisions. The provisions of Section 12.01
of the Indenture and the terms
20
of this paragraph are governed by, and shall be construed in accordance
with, the laws of The Republic of France."
The Trustee's certificates of authentication shall be in substantially
the form set forth in Section 2.02 or Section 6.14.
The definitive Debt Securities and Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner (or as may be required by any securities
exchange on which the Debt Securities may be listed), all as determined by the
officers executing such Debt Securities, as evidenced by their execution
thereof.
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication shall be in substantially the following
form:
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated herein
referred to in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By:
-------------------------------------
Authorized Signatory
Dated:
----------------------------------
ARTICLE 3
THE DEBT SECURITIES
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Debt Securities which may be authenticated and delivered
under this Indenture is unlimited. The Debt Securities may be issued in one or
more series.
There shall be established by or pursuant to action of the Management
Board (or an Executive Director to whom the Management Board has delegated its
powers) to which the ordinary general meeting of shareholders of the Company
21
has delegated its authority or pursuant to other appropriate corporate action or
as determined in an Officer's Certificate or established in one or more
indentures supplemental hereto, prior to the initial issuance of Debt Securities
of any series,
(a) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt Securities);
(b) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 and
except for any Debt Securities which, pursuant to Section 3.03, are deemed never
to have been authenticated and delivered hereunder) and whether the Company has
the option to issue additional Debt Securities of the same series subsequent to
such initial issuance;
(c) the date or dates, if any, on which the principal of (and premium,
if any, on) the Debt Securities of the series is payable;
(d) (i) the rate or rates, if any, at which the Debt Securities of the
series shall accrue interest or the manner of calculation of such rate or rates,
if any; (ii) the issue date with respect to Debt Securities in bearer form;
(iii) the date or dates from which such interest shall accrue; (iv) the Interest
Payment Dates on which such interest shall be payable or the manner of
determination of such Interest Payment Dates, if other than as specified in
Section 3.07; and (v) in the case of registered Debt Securities, the Regular
Record Date for the interest payable on any Interest Payment Date and any dates
required to be established pursuant to Section 7.01, which dates shall not be
more than six months apart;
(e) whether any premium, upon redemption or otherwise, shall be payable
by the Company on Debt Securities of the series;
(f) whether such Debt Securities of the series are Senior Debt
Securities or Subordinated Debt Securities, and if such Debt Securities of the
series are Subordinated Debt Securities whether and to what effect they will be
subject to the provisions of Article 12;
(g) whether the Debt Securities of the series are to be issued as
Discount Securities and the amount of the discount at which such Discount
Securities may be issued;
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(h) provisions, if any, for the discharge and defeasance of Debt
Securities of the series other than as provided herein;
(i) any condition to which payment of any principal of (or premium, if
any) or interest on Debt Securities of the series will be subject and whether
the Company may (and under what circumstances) defer the payment of interest on
Debt Securities of the series;
(j) the place or places where the principal of (and premium, if any)
and any interest on Debt Securities of the series shall be payable, and the
Paying Agent or Paying Agents who shall be authorized to pay principal of (and
premium, if any) and interest on Debt Securities of such series, at least one of
which Paying Agents, with respect to any securities denominated in U.S. dollars,
shall have an office or agency in the Borough of Manhattan, The City of New
York;
(k) whether such series of Debt Securities are to be redeemable, in
whole or in part, at the Company's option and, if so redeemable, the period or
periods within which, the price or prices at which and the terms and conditions
upon which, Debt Securities of the series may be redeemed;
(l) the obligation, if any, of the Company to redeem or purchase Debt
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 Debt
Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(m) the denominations in which Debt Securities of the series in each
applicable form shall be issuable and any provisions relating to redenomination
of Debt Securities;
(n) if other than the principal amount thereof, the portion, or the
manner of calculation of such portion, of the principal amount of Debt
Securities of the series which shall be payable upon a declaration of
acceleration or acceleration of the Maturity thereof pursuant to Section 5.02,
upon redemption of Debt Securities of any series which are redeemable before
their Stated Maturity, or which the Trustee shall be entitled to file and prove
a claim pursuant to Section 5.05;
(o) if Additional Amounts will be payable by the Company;
(p) whether the Debt Securities of any series will be issued in
registered form or in bearer form or both and, if bearer securities will be
issued, whether or
23
not the Debt Securities will be issued with Coupons attached, the date or dates
thereof, whether a Global Security will initially be executed and delivered,
whether registered Debt Securities of the series may be exchanged, if permitted
under applicable law and regulations, for bearer Debt Securities of the series
and VICE VERSA, and the circumstances under which any such exchanges, if
permitted, may be made and whether any such restrictions will be applicable to
the offer, sale or delivery of bearer or registered Debt Securities;
(q) if other than Dollars, provisions, if any, for the Debt Securities
of the series to be denominated, and payments thereon to be made, in Foreign
Currencies and specifying the manner and place of payment thereon and any other
terms with respect thereto and, if other than as provided herein, the manner of
determining the equivalent thereof in Dollars for purposes of the definition of
"Outstanding" in Section 1.01;
(r) if other than the coin or currency in which the Debt Securities of
that series are denominated, the coin or currency in which payment of the
principal of (and premium, if any) or interest, if any, on the Debt Securities
of such series shall be payable;
(s) if the principal of (and premium, if any) or interest, if any, on
the Debt Securities of such series are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency other than that in which the
Debt Securities are denominated, the period or periods within which, and the
terms and conditions upon which, such election may be made;
(t) whether the Debt Securities of the series shall be issued in whole
or in part in the form of one or more Global Securities and the initial Holder
with respect to such Global Security or Debt Securities;
(u) if the Debt Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Debt Security of such series or otherwise) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then the
form and terms of such certificates, documents or conditions;
(v) if the amount of payments of principal of (and premium, if any) or
interest, if any, on the Debt Securities of the series may be determined with
reference to an index or are otherwise not fixed on the original issue date
thereof, the manner in which such amounts shall be determined and the
Calculation Agent, if any, or any other person, if any, who shall be appointed
and authorized to calculate such amounts;
24
(w) the Events of Default, the terms of any Default or covenants with
respect to the Debt Securities of such series;
(x) the forms of Debt Securities of the series and any Coupons
appertaining thereto;
(y) whether Debt Securities of any series may or shall be converted
into or exchanged for stock or other securities of the Company or another entity
or other entities, into a basket or baskets of such securities, into an index or
indices of such securities, into the cash value therefor or into any combination
of the foregoing and, if so, any specific terms relating to the adjustment
thereof and the period during which such Debt Securities may or shall be so
converted or exchanged;
(z) whether any Coupons which are issued with the Debt Securities will
not rank equally with such underlying Debt Securities and if so, how any such
Coupons shall rank in relation to such Debt Securities; and
(aa) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.01(d)).
All Debt Securities of any one series shall be substantially identical
except as to denomination and the fact that Debt Securities of any one series
may be issuable in both bearer and registered form and except as may otherwise
be provided in or pursuant to the Management Board action referred to above or
in any such indenture supplemental hereto.
If the forms of Debt Securities of any series and any Coupons to be
attached thereto, or any of the terms thereof, are established by action taken
by the Management Board, copies of the Management Board Resolutions in respect
thereof shall be delivered to the Trustee at or prior to the delivery of the
Company Order pursuant to Section 3.03 for the authentication and delivery of
such Debt Securities.
SECTION 3.02. DENOMINATIONS. The Debt Securities of each series shall
be issuable in such denominations as shall be specified as contemplated by
Section 3.01. In the absence of any such specified denomination, the Debt
Securities of any series shall be issuable in denominations of $1,000, in
denominations of 1,000 in any applicable Foreign Currency and any integral
multiple thereof.
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The Debt
Securities and any Coupons shall be executed on behalf of the Company by any of
25
its Executive Directors or any authorized representative or by its duly
authorized attorney-in-fact. The signature of any such Person on the Debt
Securities may be manual or facsimile or, in the case of Definitive Debt
Securities, printed, typed or otherwise reproduced. Debt Securities or Coupons
bearing the manual or facsimile or, in the case of Definitive Debt Securities,
printed, typed or otherwise reproduced signatures of an individual who was at
any time a duly authorized representative or attorney-in-fact of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Debt Securities or Coupons, provided such officer was the holder of such
office at the date of this Indenture or the date of any Management Board
Resolution or supplemental indenture creating a particular series of Debt
Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series executed
by the Company and, in the case of bearer Debt Securities other than a Global
Security, having attached thereto appropriate Coupons, if any, to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Debt Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Debt Securities. If the forms or terms
of the Debt Securities of the series have been established in or pursuant to one
or more Management Board Resolutions as permitted by Sections 2.01 and 3.01, in
authenticating such Debt Securities and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form and
terms thereof have been established in conformity with the provisions of this
Indenture. The Trustee shall not be required to authenticate such Debt
Securities if the issue of such Debt Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Debt Securities
or any Coupons and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the preceding
paragraph, if all Debt Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officer's Certificate
otherwise required pursuant to Section 3.01 or the Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the time of
authentication of each Debt Security of such series if such documents (with
appropriate modifications) are delivered at or prior to the authentication upon
original issuance of the first Debt Security of such series to be issued and
reasonably contemplate the subsequent issuance of such Debt Securities of such
series.
Each registered Debt Security shall be dated the date of its
authentication.
26
Each bearer Debt Security shall be dated the date specified pursuant to
Section 3.01.
No Debt Security or Coupon appertaining thereto shall be entitled to
any benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Debt Security a certificate of authentication
substantially in the form provided for herein executed by or on behalf of the
Trustee by manual signature, and such certificate upon any Debt Security shall
be conclusive evidence, and the only evidence, that such Debt Security has been
duly authenticated and delivered hereunder and that such Debt Security or Coupon
is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if
any Debt Security shall have been authenticated and delivered hereunder but
never issued and sold by the Company, and the Company shall deliver such Debt
Security to the Trustee for cancellation as provided in Section 3.09, for all
purposes of this Indenture such Debt 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 shall not authenticate or deliver any bearer Debt
Securities until any matured Coupons appertaining thereto shall have been
detached and cancelled, except as otherwise provided in Section 3.04 or 3.05 or
as permitted in Section 3.06 and 9.06.
SECTION 3.04. TEMPORARY DEBT SECURITIES. Pending the preparation of
definitive Debt Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Debt
Securities substantially of the tenor of the definitive Debt Securities in lieu
of which they are issued, which Debt Securities may be printed, lithographed,
typewritten, photocopied or otherwise produced. Temporary Debt Securities may be
issued as bearer Debt Securities with or without Coupons attached thereto or as
registered Debt Securities in any authorized denomination, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Debt Securities may determine, all as evidenced by such
execution.
If temporary Debt Securities of any series are issued, the Company will
cause, if so required by the terms of such temporary Debt Securities, definitive
Debt Securities of such series to be prepared without unreasonable delay. After
the preparation of definitive Debt Securities of such series, the temporary Debt
Securities of such series shall be exchangeable for definitive Debt Securities
of such series containing identical terms and provisions upon surrender of the
temporary Debt Securities of such series (including any and all unmatured
Coupons or matured Coupons in default attached thereto) at the office or agency
27
of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Debt
Securities of any series the Company shall execute, and the Trustee shall
authenticate and deliver in exchange therefor, a like aggregate principal amount
of definitive Debt Securities of the same series of authorized denominations
containing identical terms and provisions and, in the case of bearer Debt
Securities, having attached thereto any appropriate Coupons. Until so exchanged,
unless otherwise provided therein or in a supplemental indenture relating
thereto, the temporary Debt Securities of any series shall in all respects be
entitled to the same benefits (but shall be subject to all the limitations of
rights) under this Indenture as definitive Debt Securities of such series.
The provisions of this Section 3.04 are subject to any restrictions or
limitations on the issue and delivery of temporary bearer Debt Securities of any
series that may be established pursuant to Section 3.01 (including any provision
that bearer Debt Securities of such series initially be issued in the form of a
Global Security to be delivered to a depository of the Company located outside
the United States and the procedures pursuant to which definitive bearer Debt
Securities of such series would be issued in exchange for such Global Security).
SECTION 3.05. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
(a) GLOBAL SECURITIES. This Section 3.05(a) shall apply to Global
Securities in registered form unless otherwise specified, as contemplated by
Section 3.01.
Each Global Security authenticated under this Indenture shall be
registered in the name of the Depository designated for such Global Security or
a nominee thereof and delivered to such Depository or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single Debt
Security for all purposes of this Indenture.
With respect to Global Securities in registered form, unless the Global
Security is presented by an authorized representative of the Holder to the
Company or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of a nominee of the Holder and any
payment is made to such nominee, any transfer, pledge or other use of the Global
Security in registered form for value or otherwise shall be wrongful since the
registered owner of such Global Security, the nominee of the Holder, has an
interest in such Global Security.
Except as otherwise specified as contemplated by Section 3.01 hereof,
any Global Security shall be exchangeable for definitive Debt Securities only as
28
provided in this paragraph. A Global Security shall be exchangeable pursuant to
this Section only (i) if the relevant Depository notifies the Company that it is
unwilling or unable to continue as Depository and a successor depository is not
appointed within 120 days of the Company receiving notice of such unwillingness
or inability from the relevant Depository, (ii) in the event of a winding-up of
the Company, if the Company fails to make a payment on the Debt Securities when
due or in the event of an Event of Default or Default or (iii) at any time if
the Company at its option and in its sole discretion determines that the Global
Securities of a particular series should be exchanged for definitive Debt
Securities of that series in registered form. Except as otherwise specified as
contemplated by Section 3.01 hereof, any Global Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for definitive Debt
Securities in registered form only, bearing interest (if any) at the same rate
or pursuant to the same formula, having the same date of issuance, the same date
or dates from which such interest shall accrue, the same Interest Payment Dates
on which such interest shall be payable or the manner of determination of such
Interest Payment Dates, redemption provisions, if any, specified currency and
other terms and of differing denominations aggregating a like amount as the
Global Security so exchangeable. Definitive Debt Securities in registered form
shall be registered in the names of the owners of the beneficial interests in
such Global Securities as such names are from time to time provided by the
Holder to the Trustee.
Any Global Security that is exchangeable pursuant to the preceding
paragraph, unless otherwise specified as contemplated by Section 3.01, shall be
exchangeable for Debt Securities issuable in authorized denominations of a like
aggregate principal amount and tenor.
No Global Security in registered form may be transferred except as a
whole by the Holder to a nominee of the Holder or by the Holder or any such
nominee to a successor of the Holder or a nominee of such successor. Except as
provided above, owners solely of beneficial interests in a Global Security shall
not be entitled to receive physical delivery of Debt Securities in definitive
form and will not be considered the holders thereof for any purpose under this
Indenture.
In the event that a Global Security is surrendered for redemption in
part pursuant to Section 11.07, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Global Security, without service
charge, a new Global Security in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Global Security so surrendered.
The Agent Members, and any beneficial owners shall have no rights under
this Indenture with respect to any Global Security held on their behalf by a
Depository, and such Depository shall be treated by the Company, the Trustee,
29
and any agent of the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by a Depository or impair, as between any such
Depository or other clearance service and its Agent Members and the beneficial
owner, the operation of customary practices governing the exercise of the rights
of a beneficial owner of any security, including without limitation the granting
of proxies or other authorization of participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action which
a Holder is entitled to give or take under this Indenture.
In connection with any exchange of interests in a Global Security for
definitive Debt Securities of another authorized form, as provided in this
subsection 3.05(a), then without unnecessary delay but in any event not later
than the earliest date on which such interests may be so exchanged, the Company
shall deliver to the Trustee definitive Debt Securities in aggregate principal
amount equal to the principal amount of such Global Security or the portion to
be exchanged, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such Global Security shall be surrendered by
the Holder 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 Debt Securities
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such Global Security, an equal aggregate principal amount of
definitive Debt Securities of authorized denominations as the portion of such
Global Security to be exchanged. Any Global Security that is exchangeable
pursuant to this Section 3.05 shall be exchangeable for Debt Securities issuable
in the denominations specified as contemplated by Section 3.01 and registered in
such names as the Holder of such Global Security shall direct; provided however,
that the Company, in its sole discretion, shall determine the number of
definitive Debt Securities into which any Global Security is exchangeable
pursuant to this Section 3.05 so long as each such definitive Debt Security is
in a denomination specified pursuant to Section 3.01. If a definitive Debt
Security in registered form is issued in exchange for any portion of a Global
Security after the close of business at the office or agency where such exchange
occurs on any record date and before the opening of business at such office or
agency on the relevant Interest Payment Date, interest will not be payable on
such Interest Payment Date in respect of such definitive Debt Security, but will
be payable on such Interest Payment Date only to the person to whom payments of
interest in respect of such portion of such Global Security are payable.
A Depository may grant proxies and otherwise authorize any person,
including Agent Members and persons that may hold interests through Agent
30
Members, to take any action which a holder is entitled to take under this
Indenture with respect to the Debt Securities.
(b) Except as otherwise specified in Section 3.05(a), registered Debt
Securities of any series may only be exchanged for a like aggregate principal
amount of registered Debt Securities of such series of other authorized
denominations containing identical terms and provisions, and, if bearer Debt
Securities of any series are issued in more than one authorized denomination,
such bearer Debt Securities may only be exchanged for a like aggregate principal
amount of bearer Debt Securities of other authorized denominations containing
identical terms and provisions. Debt Securities to be exchanged shall be
surrendered at an office or agency of the Company designated pursuant to Section
10.02 for such purpose, and the Company shall execute, and the Trustee shall
authenticate and deliver, in exchange therefor the Debt Security or Debt
Securities of the same series which the Holder making the exchange shall be
entitled to receive. All bearer Debt Securities surrendered for exchange shall
have attached all unmatured Coupons appertaining thereto, if any, and, in case
at the time of any such exchange any interest payments on such Debt Securities
is in default, shall in addition have attached all matured Coupons in default
appertaining thereto. In case a bearer Debt Security is surrendered in exchange
for a registered Debt Security after the close of business on any Regular Record
Date and before the opening of business on the next succeeding Interest Payment
Date, such bearer Debt Security shall be surrendered without the Coupon relating
to such Interest Payment Date and interest will not be payable on such Interest
Payment Date in respect of the registered Debt Security issued in exchange for
such bearer Debt Security, but will be payable only to the Holder of such Coupon
when due.
Except as otherwise specified pursuant to Section 3.01, the Company
shall cause to be kept in the principal corporate trust office of the Trustee a
register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "DEBT SECURITY REGISTER") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of registered Debt Securities and of transfers of such Debt
Securities. The Trustee is hereby appointed "DEBT SECURITY REGISTRAR" for the
purpose of registering Debt Securities in registered form and transfers of Debt
Securities in registered form as herein provided.
Registered Debt Securities shall be transferable only on the Debt
Security Register. Upon surrender for registration of transfer of any registered
Debt Security of any series at an office or agency of the Company designated
pursuant to Section 10.02 for such purpose, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or
31
transferees, one or more new registered Debt Securities of the same series of
any authorized denominations containing identical terms and provisions, of a
like aggregate principal amount.
Bearer Debt Securities and Coupons shall be transferable by delivery.
All Debt Securities and any Coupons issued upon any registration of
transfer or exchange of Debt Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities and any Coupons surrendered upon such
registration of transfer or exchange.
Every registered Debt Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Debt Security Registrar
duly executed, by the registered Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Debt 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 Debt Securities,
other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Debt Security of any series during a period beginning at the
opening of business 15 days before the day of the giving of a notice of
redemption of Debt Securities of such series selected for redemption under
Section 11.03 and ending at the close of business on the day of the giving of
such notice, or (ii) to register the transfer of or exchange any Debt Security
so selected for redemption in whole or in part, except the unredeemed portion of
any Debt Securities being redeemed in part.
Notwithstanding anything herein or in the terms of any series of Debt
Securities to the contrary, neither the Company nor the Trustee (which may
conclusively rely on an Officer's Certificate or an Opinion of counsel) shall be
required to exchange any bearer Debt Security for a registered Debt Security or
any registered Debt Security for a bearer Debt Security if such exchange would
in the opinion of the Company result in any adverse tax consequence to the
Company under applicable tax laws.
SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES. If
any mutilated Debt Security or Coupon (including any Global Security) is
32
surrendered to the Trustee, the Company may execute and the Trustee shall, in
the case of a Debt Security, authenticate and deliver, or in the case of a
Coupon deliver, in exchange therefor a new Debt Security or Coupon of the same
series containing identical terms and provisions and of like amount, and bearing
a number not contemporaneously outstanding; PROVIDED that if such new Debt
Security is in bearer form, such Debt Security or Coupon, if any, shall be
delivered only outside the United States.
If there shall be delivered to the Company and to the Trustee (a)
evidence to their satisfaction of the destruction, loss or theft of any Debt
Security (including any Global Security) or Coupon, if any, and (b) such
security or indemnity as may be required by them to save each of them and any
agent of any of them harmless, then, in the absence of notice to the Company or
the Trustee that such Debt Security or Coupon, if any, has been acquired by a
bona fide purchaser, the Company shall execute and upon its written request the
Trustee shall authenticate and deliver, or in the case of a Coupon deliver, in
lieu of any such destroyed, lost or stolen Debt Security or Coupon, if any, a
new Debt Security or Coupon, if any, of the same series containing identical
terms and provisions and of like amount, and bearing a number not
contemporaneously outstanding; PROVIDED that if such new Debt Security is in
bearer form, such Debt Security or Coupon, if any, shall be delivered only
outside the United States.
In case any such mutilated, destroyed, lost or stolen Debt Security or
Coupon, if any, has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Debt Security or Coupon, if any,
pay such Debt Security or any Coupon; PROVIDED, HOWEVER, that principal of (and
premium, if any) and any interest on Debt Securities in bearer form shall,
except as otherwise provided in Section 10.02, be payable only at an office or
agency located outside the United States and, unless otherwise specified as
contemplated by Section 3.01, any interest on Debt Securities in bearer form
shall be payable only upon presentation and surrender of the Coupons, if any,
appertaining thereto.
Upon the issuance of any new Debt Security or any Coupon under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Debt Security or Coupon of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Debt Security or Coupon shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Debt Security or Coupon shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture
33
equally and proportionately with any and all other Debt Securities and Coupons,
if any, 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 Debt Securities or Coupons.
SECTION 3.07. PAYMENT; INTEREST RIGHTS PRESERVED. (a) Except as
otherwise provided as contemplated by Section 3.01 with respect to any series of
Debt Securities, interest on any series of Debt Securities which is payable, and
is punctually paid or duly provided for, on any Interest Payment Date shall be
paid, (i) in the case of definitive Debt Securities in registered form, to the
Person in whose name that Debt Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest and, at the option of the Company, may be paid by check mailed to the
address of the Person as it appears in the Debt Security Register, (ii) in the
case of definitive Debt Securities in bearer form, upon presentation and
surrender outside of the United States of the Coupon appertaining thereto to a
Paying Agent of the Company in respect of the payment of interest to be paid on
such Interest Payment Date or (iii) in the case of Global Securities held by any
Holder, to the Holder including through a Paying Agent of the Company designated
pursuant to Section 3.01 by wire transfer of same-day funds to the Holder or, at
the option of the Company, by check mailed to the address of the Holder as it
appears in the Debt Security Register.
(b) Any interest on any Debt 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 (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debt Securities of such
series (or their respective Predecessor Securities) are registered at
the close of business on a date for the payment of such Defaulted
Interest (a "SPECIAL RECORD DATE"), 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 Debt
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 reasonably
satisfactory to the Trustee for such deposit
34
on or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as provided in this clause.
Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest in respect of registered Debt
Securities of such series 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 in
the manner and to the extent provided in Section 1.06, not less
than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest on the Debt Securities
of such series and the Special Record Date therefor having been so
given, such Defaulted Interest on the Debt Securities of such
series shall be paid (X) in the case of registered Debt Securities,
to the Persons in whose names such Debt Securities (or their
respective Predecessor Securities) are registered in the Debt
Security Register at the close of business on such Special Record
Date, and (Y) in the case of bearer Debt Securities upon
presentation and surrender outside the United States of the matured
Coupons appertaining thereto, on the date for payment of such
Defaulted Interest specified in the notice, and, in each case,
shall no longer be payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted Interest on
the Debt Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Debt 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 3.07, each Debt
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Debt Security shall carry the rights to
interest accrued and unpaid, which were carried by such other Debt Security.
SECTION 3.08. PERSONS DEEMED OWNERS. Prior to due presentment of a
registered Debt 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 Debt Security is registered as the owner of such Debt Security for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to Section 3.05 and Section 3.07) interest, if any, on such Debt Security and
for all other
35
purposes whatsoever, whether or not such Debt Security 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.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any bearer Debt Security or any Coupon as the absolute
owner of such Debt Security or Coupon, as the case may be, for any purpose,
including for the purpose of receiving payment of principal of (and premium, if
any) and interest, if any, on such Debt Security or payment of such Coupon, as
the case may be, and for all other purposes whatsoever, whether or not such Debt
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 3.09. CANCELLATION. All Debt 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 and shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any Debt
Securities previously authenticated and delivered hereunder and Coupons 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 Debt Securities previously authenticated hereunder and Coupons which the
Company has not issued and sold, and all Debt Securities and Coupons so
delivered shall be promptly cancelled by the Trustee. No Debt Securities shall
be authenticated in lieu of or in exchange for any Debt Securities cancelled as
provided in this Section, except as expressly permitted by the provisions of the
Debt Securities of any series or pursuant to the provisions of this Indenture.
The Trustee shall deliver to the Company all cancelled Debt Securities and
Coupons held by the Trustee.
SECTION 3.10. COMPUTATION OF INTEREST. Except as otherwise specified
pursuant to Section 3.01 for Debt Securities of any series, payments of interest
on the Debt Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 3.11. CUSIP NUMBERS. The Company in issuing any series of the
Debt Securities may use CUSIP numbers or any other type of designating number of
a similar nature, including common codes and ISIN, if then generally in use, and
thereafter with respect to such series, the Trustee shall use such numbers in
any notice of redemption with respect to such series; PROVIDED that any such
notice shall state that no representation is made as to the correctness of such
numbers either as printed on the Debt Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other identification
36
numbers printed on the Debt Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
SECTION 3.12. COMPLIANCE WITH CERTAIN LAWS AND REGULATIONS. If any
bearer Debt Securities are to be issued in a series, the Company will make
arrangements reasonably designed pursuant to then applicable laws and
regulations, if any, to ensure that bearer Debt Securities are offered and sold
(or resold in connection with the original issuance) only outside the United
States and only to Persons who are not U.S. Persons or Persons who have
purchased for resale to any U.S. Person.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall upon Company Request cease to be of further effect with
respect to Debt Securities of any series (except as to any surviving rights
of registration of transfer or exchange of Debt Securities and Coupons, if
any, of such series herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Debt
Securities of such series when (a) either
(i) all Debt Securities of such series theretofore authenticated
and delivered and all Coupons, if any, appertaining thereto (other than
(x) Debt Securities and Coupons, if any, which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 3.06 and (y) Debt Securities or Coupons for whose payment money
has theretofore been deposited in trust or segregated and held in trust
by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.03) have been delivered to the
Trustee for cancellation; or
(ii) all such Debt Securities and Coupons, if any, not theretofore
delivered to the Trustee for cancellation
(A) have become due and payable or will become due and
payable at their Stated Maturity within one year, or
(B) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of
37
redemption by the Trustee in the name, and at the expense,
of the Company,
and the Company has deposited or caused to be deposited with the Trustee, as
trust funds in trust for the purpose, an amount in cash, or U.S. Government
Obligations (with respect to Debt Securities denominated in Dollars) or Foreign
Government Securities or the equivalent in U.S. Government Securities with
appropriate currency hedging agreements in place (with respect to Debt
Securities denominated in the same Foreign Currency) maturing as to principal
and interest in such amounts and at such times as will ensure the availability
of cash sufficient to pay and discharge all claims with respect to such Debt
Securities and Coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and accrued interest, if any,
to the date of such deposit (in the case of Debt Securities and Coupons which
have become due and payable) or to the Stated Maturity or Redemption Date, as
the case may be; PROVIDED that in the case of the deposit of U.S. Government
Securities to satisfy obligations denominated in a Foreign Currency, the
adequacy of such amount shall be certified by an internationally recognized firm
of independent public accountants;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Debt Securities of such series; and
(c) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture with
respect to the Debt Securities of such series have been complied with.
Notwithstanding any satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and, if cash, U.S.
Government Obligations and/or Foreign Government Securities shall have been
deposited with the Trustee pursuant to subclause (ii) of clause 4.01(a) of this
Section, the obligations of the Trustee under Section 4.03 and the last
paragraph of Section 10.03 shall survive such satisfaction and discharge.
SECTION 4.02. DEFEASANCE UPON DEPOSIT OF MONEYS, U.S. GOVERNMENT
OBLIGATIONS OR FOREIGN GOVERNMENT SECURITIES. Unless it is otherwise provided as
contemplated by Section 3.01, then notwithstanding Section 4.01, at the
Company's option, either (a) the Company shall be deemed to have been Discharged
(as defined below) from its obligations with respect to any series of Debt
Securities on the 91st day after the applicable conditions set forth below have
been satisfied, or (b) the Company shall cease to be under any obligation to
comply with any term, provision or condition set forth in Article 8 or Article
10
38
(but only those so set forth) with respect to any series of Debt Securities or
such other covenants as shall be set forth in any supplemental indenture with
respect to such series of Debt Securities at any time after the applicable
conditions set forth below have been satisfied:
(i) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for and dedicated
solely to the benefit of the Holders of the Debt Securities of such series (x)
in the case of Debt Securities of such series denominated in U.S. dollars, U.S.
money and/or U.S. Government Obligations, PROVIDED, HOWEVER, that in the case of
Debt Securities of any series issued in whole or in part in bearer form, not
more than 50% (determined with respect to both value and income) of the
deposited collateral shall consist of U.S. Government Obligations, or (y) in the
case of Debt Securities of such series denominated in a Foreign Currency, money
and/or Foreign Government Securities in the same Foreign Currency or the
equivalent in U.S. Government Securities with appropriate currency hedging
agreements in place, which through the payment of interest and principal in
respect thereof, in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such Trustee), not
later than one day before the due date of any payment of money, an amount in
cash to pay and discharge each installment of principal (including any mandatory
sinking fund or analogous payments) of and any interest on all the Debt
Securities of such series on the dates such installments of interest or
principal are due;
(ii) in the case of the Debt Securities of such series being Discharged
pursuant to Section 4.02(a) only, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that Holders of the Debt Securities
of such series will not recognize income, gain or loss for United States Federal
income tax purposes as a result of the Company's exercise of its option under
Section 4.02(a) above and will be subject to United States 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, which opinion shall be based on
a published ruling or ruling received by the Company from the United States
Internal Revenue Service or a change in the applicable United States Federal
income tax law;
(iii) in the case of the Debt Securities of such series being
Discharged pursuant to Section 4.02(b) only, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that Holders of the Debt
Securities of such series will not recognize income, gain or loss for United
States Federal income tax purposes as a result of the Company's exercise of its
option under Section 4.02(b) above and will be subject to United States Federal
income tax on the same amount
39
and in the same manner and at the same times as would have been the case if
such option had not been exercised;
(iv) no Event of Default or any event which after notice or lapse of
time or both, would become an Event of Default with respect to the Debt
Securities of that series shall have occurred and be continuing on the date of
such deposit;
(v) such Discharge shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the
Company is a party or by which it is bound;
(vi) the Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Debt Securities nor any other Debt
Securities of the same series, if then listed on the New York Stock Exchange,
will be delisted as a result of such deposit; and
(vii) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for under Section 4.02(a) or 4.02(b) (as the case may be)
have been complied with.
"DISCHARGED" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by and obligations under the Debt
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Debt Securities of such series, including obligations
under any guarantee issued in accordance with Section 8.03(a) hereof (and the
Trustee at the expense of the Company shall execute proper instruments
acknowledging the same), except (A) the rights of Holders of Debt Securities of
such series to receive from the trust fund described in subclause (i) above
payment of the principal of and any interest on such Debt Securities when such
payments are due; (B) the Company's obligations with respect to such Debt
Securities under Sections 3.05, 3.06, 4.06 and 10.02; and (C) the rights,
powers, trust, duties and immunities of the Trustee hereunder.
SECTION 4.03. APPLICATION OF TRUST MONEY. Subject to the provisions of
the last paragraph of Section 10.03, all cash, U.S. Government Obligations and
Foreign Government Securities deposited with the Trustee pursuant to Section
4.01 or 4.02 shall be held in trust and such cash and the proceeds from such
U.S. Government Obligations and/or Foreign Government Securities shall be
applied by it, in accordance with the provisions of the Debt Securities of such
series, any Coupons appertaining thereto and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and
40
premium, if any) and interest for the payment of which such cash, U.S.
Government Obligations and/or Foreign Government Securities have been deposited
with or received by the Trustee or to make mandatory sinking fund or analogous
payments as contemplated by Section 4.01 or 4.02.
SECTION 4.04. REPAYMENT TO COMPANY. The Trustee and any Paying Agent
promptly shall pay to the Company upon Company Request any excess money, U.S.
Government Obligations and/or Foreign Government Securities held by them at any
time with respect to any series of Debt Securities.
SECTION 4.05. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS AND FOREIGN
GOVERNMENT SECURITIES. The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against U.S.
Government Obligations or Foreign Government Securities or the principal and
interest received on such U.S. Government Obligations or Foreign Government
Securities deposited pursuant to Section 4.01 or 4.02 in respect of any series
of Debt Securities.
SECTION 4.06. REINSTATEMENT. If the Trustee or any Paying Agent is
unable to apply any money, U.S. Government Obligations and/or Foreign Government
Securities deposited in trust in accordance with Section 4.01 or 4.02 by reason
of any legal proceeding or by reason of any order or judgment of any court or
governmental authority located within the United States and having jurisdiction
in the premises, enjoining, restraining or otherwise prohibiting such
application (including any such order or judgment requiring the payment of
money, U.S. Government Obligations and/or Foreign Government Securities to the
Company), the obligations of the Company under this Indenture and the Debt
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to Section 4.01 or 4.02, until such time as the Trustee or
Paying Agent is permitted to apply all such money, U.S. Government Obligations
and/or Foreign Government Securities, PROVIDED, HOWEVER, that if the Company has
made any payment of any interest on or principal of any Debt Securities of such
series because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the holders of the Debt Securities of such series to
receive such payment from the money, U.S. Government Obligations and/or Foreign
Government Securities held by the Trustee pursuant to Section 4.01 or 4.02.
SECTION 4.07. RETURN OF UNCLAIMED MONEY. Any money deposited with or
paid to the Trustee or Paying Agent for payment of the principal of (premium, if
any), or any interest on, the Debt Securities of such series and not applied but
remaining unclaimed by the Holders, any Agent Members or the beneficial owners
or holders of the Debt Securities of such series after two years from the date
of receipt thereof shall be repaid to the Company by the Trustee or Paying
41
Agent on demand; and the Holder, any Agent Members or the beneficial owners or
holders of any of such Debt Securities shall thereafter look only to the
Company for any payment which such Holder, Agent Member or beneficial owner
or holder may be entitled to collect, subject to applicable abandoned property
law.
ARTICLE 5
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT. "EVENT OF DEFAULT", wherever used
herein with respect to Debt Securities of a particular series, shall have the
meaning set forth in one or more supplemental indentures relating to such series
and issued in accordance with Section 3.01.
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
Unless otherwise specified in a supplemental indenture issued in accordance with
Section 3.01, if an Event of Default occurs with respect to Debt Securities of
any series and is continuing, then in every such case the Trustee or the Holder
or Holders of not less than 25% in aggregate principal amount of the Outstanding
Debt Securities of such series may declare the principal amount of (or, in the
case of Discount Securities, the accreted face amount together with accrued
interest, if any, on) all the Debt Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by such Holder or Holders), and upon any such declaration such
principal amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made but before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holder or Holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of such series, by written notice to
the Company and the Trustee, may rescind or annul such declaration of
acceleration and its consequences (including any Event of Default under another
series of Debt Securities arising therefrom) but only if
(a) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(i) the principal of (and premium, if any, on) any Debt Securities
of such series which have become due otherwise than by such declaration
of acceleration and any due and payable interest, and overdue interest,
if any, thereon at the rate or rates prescribed therefor in such Debt
Securities,
42
(ii) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor
in such Debt Securities, and
(iii) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(b) all Events of Default with respect to Debt Securities of such
series, other than the non-payment of amounts due on such Debt Securities of
such series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 5.14.
No such rescission or annulment shall affect any subsequent default or
impair any right consequent thereon.
SECTION 5.03. DEFAULTS. "DEFAULT", wherever used herein with respect to
Debt Securities of a particular series, shall have the meaning set forth in one
or more supplemental indentures relating to such series and issued in accordance
with Section 3.01.
SECTION 5.04. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. Except as otherwise provided in any supplemental indenture issued in
accordance with Section 3.01, if (a) default is made in the payment of any
interest on any Debt Security when such interest becomes due and payable and
such default continues for a period of 30 days; or (b) default is made in the
payment of principal of (or premium, if any, on) any Debt Security and Coupon at
the Maturity thereof and such default continues for a period of 7 days, the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities and the holders of any Coupons appertaining
thereto, the whole amount then due and payable on such Debt Securities and
Coupons for principal (and premium, if any) and interest, if any, and interest
on any overdue principal (and premium, if any) and, to the extent that payment
of such interest shall be legally enforceable, interest on any overdue interest,
at the rate or rates prescribed therefor in such Debt Securities and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel; PROVIDED,
however, that such payments with respect to Subordinated Debt Securities issued
hereunder shall be subject to the subordination provisions set forth herein or
in any supplemental indenture with respect to any series of Subordinated Debt
Securities.
43
If an Event of Default with respect to Debt Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debt Securities of such
series and holders of any Coupons appertaining thereto by such appropriate
judicial proceedings as are necessary to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy, including the institution of proceedings for the
winding-up of the Company; PROVIDED that such action as it relates to any series
of Subordinated Debt Securities issued hereunder shall be subject to the
subordination provisions set forth herein or in any supplemental indenture with
respect to such series.
Notwithstanding the foregoing, the provisions of this Section 5.04, as
they relate to Subordinated Debt Securities issued hereunder, are subject to the
provisions of Section 12.01.
SECTION 5.05. TRUSTEE MAY FILE PROOFS OF CLAIM. To the extent permitted
by applicable law, in case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition,
winding-up or other judicial proceeding relative to the Company or any other
obligor upon the Debt Securities of any series or to the property of the Company
or such other obligor or their creditors (other than under or in connection with
a scheme of amalgamation, consolidation, merger, arrangements or reconstruction
or other combination not involving bankruptcy or insolvency), the Trustee
(irrespective of whether the principal of the Debt Securities of such series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal (and premium, if any) or
interest, if any) shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, to the extent permitted by applicable law,
the Trustee shall be authorized to collect and receive any moneys and other
property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of a Debt Security and each holder of a Coupon to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to such Holders or holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due to
the Trustee under Section 6.07.
44
Subject to Article Eight and Section 9.02, nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder of any Debt Security or any holder of any Coupon
any plan of reorganization, arrangement, adjustment, or composition affecting
any Debt Securities or Coupons or the rights of any Holder of any Debt Security
or any holder of any Coupon or to authorize the Trustee to vote in respect of
the claim of any such Holder or holder in any such proceeding; PROVIDED that the
Trustee may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors' or other similar
committee.
Notwithstanding the foregoing, the provisions of this Section 5.05, as
they relate to Subordinated Debt Securities issued hereunder, are subject to the
provisions of Section 12.01.
SECTION 5.06. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT
SECURITIES. All rights of action and claims under this Indenture or the Debt
Securities or Coupons, if any, may be prosecuted and enforced by the Trustee
without the possession of any of the Debt Securities or Coupons or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel (subject, with regard to the Company, to the
provisions of Section 12.01), be for the ratable benefit of the Holders of the
Debt Securities and any holders of any Coupons in respect of which such judgment
has been recovered.
SECTION 5.07. APPLICATION OF MONEY COLLECTED. Except as otherwise
provided in any supplemental indenture issued in accordance with Section 3.01,
any money collected by the Trustee pursuant to this Article in respect of any
series of Debt Securities shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (and premium, if any) or interest, if any, upon
presentation of such Debt Securities and any Coupons (provided that any such
Debt Securities in bearer form will be presented only outside the United States)
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts applicable to such series of Debt
Securities in respect of which or for the benefit of which such money has been
collected due the Trustee under Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest, if any, on such series of Debt
45
Securities and Coupons, if any, in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Debt Securities and
Coupons for principal (and premium, if any) and interest, if any, respectively;
and
THIRD: To the payment of the balance, if any, to the Company.
SECTION 5.08. LIMITATION ON SUITS. No Holder of any Debt Security of
any series or holder of any Coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default or Default with respect to Debt Securities of the
same series specifying such Event of Default or Default and stating that such
notice is a "Notice of Default" hereunder;
(b) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Debt Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default or
Default in its own name, as Trustee hereunder;
(c) such Holder of a Debt Security or holder of a Coupon has offered to
the Trustee indemnity reasonably satisfactory to it against the costs, expenses
and liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Debt Securities of such series; and
(f) in the case of a proceeding for the winding-up of the Company, such
proceeding is in the name and on behalf of the Trustee to the same extent (but
no further or otherwise) as the Trustee would have been entitled so to do;
it being understood and intended that no one or more Holders of Debt Securities
of a particular series or holders of Coupons appertaining thereto, if any, shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other such Holders or holders, or to obtain or to seek to obtain priority or
preference over any other such Holders or holders or to enforce any right under
this Indenture, except in the
46
manner herein provided including under Article 12 and for the equal and ratable
benefit of all Holders of Debt Securities of such series or holders of any such
Coupons.
SECTION 5.09. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST, IF ANY. Notwithstanding any other provision in this
Indenture, the Holder of any Debt Security or the holder of any Coupon
appertaining thereto shall have the right, which is absolute and unconditional,
to receive payment of the principal of (and premium, if any) and, subject to
Section 3.07, interest, if any, on such Debt Security on the respective Stated
Maturity or Maturities as expressed in such Debt Security or Coupon (or, in the
case of redemption on or after the Redemption Date), and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder or holder.
SECTION 5.10. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder of any Debt Security or the holder of any Coupon 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 or holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders of Debt Securities and the holders of any Coupons
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders of Debt
Securities and the holders of any Coupons shall continue as though no such
proceeding had been instituted.
SECTION 5.11. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Debt Securities or any Coupons in the last paragraph of Section
3.06, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Debt Securities or holders of any Coupons is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.12. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Debt Security or holder of any Coupon to
exercise any right or remedy accruing upon any Event of Default or Default shall
impair any such right or remedy or constitute a waiver of any such Event of
47
Default or Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders of Debt Securities or
holders of any Coupons may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by the Holders of Debt Securities or
holders of any Coupons, as the case may be.
SECTION 5.13. CONTROL BY HOLDERS. The Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of any series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to the Debt Securities of such
series, provided that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture;
(b) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Holders of any Debt Securities of any series not
taking part in such direction with respect to which the Trustee is acting as the
Trustee; and
(c) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 5.14. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Debt Securities of any
series may on behalf of the Holders of all the Debt Securities of such series
and holders of any related Coupons waive (including waivers obtained in
connection with a purchase of, or tender or exchange offer for, Debt Securities)
any past Event of Default or Default hereunder with respect to such series and
its consequences, except, if applicable, an Event of Default or Default
(a) in the payment of the principal of (or premium, if any) or
interest, if any, on any Debt Security of such series, or
(b) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Debt Security of such series affected.
Upon any such waiver, such Event of Default or Default shall cease to
exist, and any Event of Default or Default with respect to any series arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other Event of Default or Default or impair any right consequent thereon.
48
SECTION 5.15. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Debt Security and each holder of any Coupon by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant to such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but, subject to the determination made by such court, the provisions of this
Section shall not apply to any suit instituted by the Trustee or the Company, to
any suit instituted by any Holder or group of Holders holding in the aggregate
more than 10% in principal amount of the Outstanding Debt Securities of any
series, or to any suit instituted by any Holder or holder of any Coupon for the
enforcement of the payment of the principal of (or premium, if any) or interest,
if any, on any Debt Security on or after the respective Stated Maturity or
Maturities expressed in such Debt Security or Coupon (or, in the case of
redemption, on or after the Redemption Date).
SECTION 5.16. WAIVER OF USURY, STAY OR EXECUTION 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 usury law wherever enacted, 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 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 6
THE TRUSTEE
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES. (a) The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, 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.
49
(b) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 6.02. NOTICE OF DEFAULTS. Within 90 days after the occurrence
of any Event of Default or Default hereunder with respect to Debt Securities of
any series the Trustee shall transmit in the manner and to the extent provided
in Section 1.06 to Holders of Debt Securities of such series notice of such
Event of Default or Default hereunder actually known to a Responsible Officer of
the Trustee, unless such Event of Default or Default shall have been cured or
waived; PROVIDED, however, that except in the case of an Event of Default or
Default in the payment of the principal of (or premium, if any) or interest, if
any, on any Debt Securities of such series, the Trustee shall be protected in
withholding such notice if a trust committee of Responsible Officers of the
Trustee determines in good faith that the withholding of such notice is in the
interest of the Holders of Debt Securities of such series.
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of
Section 6.01:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, Coupon or other evidence of indebtedness or other paper or
document (whether in its original or facsimile form) believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request, Company Order or Officer's
Certificate and any action or resolution of the Management Board shall be
sufficiently evidenced by a Management Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel of its own selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
50
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, Coupon or other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company during normal business hours on a
business day in France with reasonable prior notice, personally or by agent or
attorney at the reasonable expense of the Company and shall incur no liability
of any kind by reason of such inquiry or investigation, unless such liability
arises from its gross negligence, bad faith or willful misconduct, PROVIDED that
the Trustee shall not be entitled to such information which the Company is
prevented from disclosing as a matter of law or contract;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(i) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any such Event of Default or
Default is received by the Trustee at the Corporate Trust Office of the Trustee
and such notice references the Debt Securities or this Indenture;
(j) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder; and
51
(k) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture.
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT
SECURITIES. The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Debt Securities or
Coupons, except that the Trustee represents and warrants that it has duly
authorized, executed and delivered this Indenture. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Debt Securities or the proceeds thereof.
SECTION 6.05. MAY HOLD DEBT SECURITIES. The Trustee, any Authenticating
Agent, any Paying Agent, any Debt Security Registrar and any Calculation Agent
or any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Debt Securities or Coupons and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent, Debt
Security Registrar, Calculation Agent or such other agent.
SECTION 6.06. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 6.07. COMPENSATION AND REIMBURSEMENT. The Company agrees
(a) to pay to the Trustee from time to time compensation for all
services rendered by it hereunder as agreed in writing by the Company from time
to time (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence, bad faith or willful
misconduct; and
52
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability, damage or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder including the reasonable costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder but excluding any tax
liabilities of the Trustee based upon, measured by or determined by the income
of the Trustee and except to the extent that any such loss, liability, damage,
cost or expense may be attributable to its negligence, bad faith or willful
misconduct.
The Trustee shall notify the Company in writing of the commencement of
any action or claim in respect of which indemnification may be sought promptly
after the Trustee becomes aware of such commencement (provided that the failure
to make such notification shall not affect the Trustee's rights hereunder,
except to the extent the Company is actually prejudiced by such failure) and the
Company shall be entitled to participate in the defense thereof, including the
employment of counsel reasonably satisfactory to the Trustee. The Trustee shall
not compromise or settle any such action or claim without the written consent of
the Company, which consent shall not be unreasonably withheld.
The provisions of this Section 6.07 shall survive termination of this
Indenture or the resignation or removal of the Trustee.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall, as set forth in Section 5.07, have a senior
claim (as between itself and the Holders of Debt Securities) to which the Debt
Securities are hereby made subordinate, upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of
principal of (or premium, if any) or interest, if any, on the Debt Securities.
SECTION 6.08. DISQUALIFICATION; CONFLICTING INTERESTS. If the Trustee
has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture. To the extent permitted by the Trust
Indenture Act, the Trustee shall not be deemed to have a conflicting interest by
virtue of being the Trustee under this Indenture with respect to Senior and
Subordinated Debt Securities or with respect to Debt Securities of more than one
series.
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall at
all times be a Trustee hereunder with respect to the Debt Securities of each
series which shall be a Person that is eligible pursuant to the Trust Indenture
Act to act as such, having a combined capital and surplus of at least
$50,000,000, subject to
53
supervision or examination by Federal or State or District of Columbia authority
and, if there be such Person willing and able to act as trustee on reasonable
and customary terms, having its corporate trust office or agency in the Borough
of Manhattan, The City of New York. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee or any Holder
which has been a Holder for at least six months may petition at the expense of
the Company any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Debt Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Debt Securities of such series delivered to the Trustee and
to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.08 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Debt Security of the series as to which the
Trustee has a conflicting interest for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the
54
Company or by any Holder who has been a bona fide Holder of a Debt
Security for at least six months, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge, or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by an Officer's Certificate may remove
the Trustee with respect to any or all series of Debt Securities or (y) subject
to Section 5.15, any Holder who has been a bona fide Holder of a Debt Security
for at least six months (and, in the case of subparagraph 6.10(d)(i) above, who
is a Holder of a Debt Security of the series as to which the Trustee has a
conflicting interest) may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Debt Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any cause,
with respect to the Debt Securities of one or more series, the Company, by an
Officer's Certificate, shall promptly appoint a successor Trustee or Trustees
with respect to the Debt Securities of such series (it being understood that any
successor Trustee may be appointed with respect to the Debt Securities of one or
more or all of such series and at any time there shall be only one Trustee with
respect to the Debt Securities of any particular series), and shall comply with
the applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 6.11, become the successor Trustee with respect to the Debt Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Debt Securities of any
series shall have been so appointed by the Company or the Holders of Debt
Securities of such series and accepted appointment in the manner hereinafter
required by Section 6.11, any Holder who has been a bona fide Holder of a Debt
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Debt Securities of
such series.
55
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Debt Securities of any series and each
appointment of a successor Trustee with respect to the Debt Securities of any
series in the manner and to the extent provided in Section 1.06. Each notice
shall include the name of the successor Trustee with respect to the Debt
Securities of such series and the address of its Corporate Trust Office.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case of
the appointment hereunder of a successor Trustee with respect to all Debt
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee, all
the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of such series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which
(i) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Debt Securities of
such series to which the appointment of such successor Trustee relates, (ii) if
the retiring Trustee is not retiring with respect to all Debt 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 Debt Securities of such series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee, and (iii)
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,
56
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Debt Securities of such
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 Debt
Securities of such series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph 6.11(a) or 6.11(b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Debt Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Debt
Securities.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS. If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon
the Debt Securities of a series), the Trustee shall be subject to the provisions
of the Trust Indenture Act regarding the collection of claims against the
Company (or any such other obligor).
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT. The Trustee may at
any time appoint an Authenticating Agent or Agents with respect to one or more
series of Debt Securities which shall be authorized to act on behalf of the
Trustee to authenticate Debt Securities of such series upon original issue, or
issued upon exchange, registration of transfer or partial redemption thereof or
in lieu of destroyed, lost or stolen Debt Securities, and Debt Securities so
authenticated
57
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 Debt Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation or national banking association organized and doing
business under the laws of the United States, any State thereof or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State or District of Columbia
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation or national banking association into which an
Authenticating Agent may be merged or converted or with which it may be
consolidated, or any corporation or national banking association resulting from
any merger, conversion or consolidation to which such Authenticating Agent shall
be a party, or any corporation or national banking association succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation or national
banking association 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 the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice to the
Holders of Debt Securities in the manner and to the extent provided in Section
1.06. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor
58
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 Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments subject to the
provisions of Section 6.07.
If an appointment with respect to one or more series is made pursuant
to this Section, the Debt Securities of such series may have endorsed thereon,
in lieu of the Trustee's certificate of authentication, an alternate certificate
of authentication in the following form:
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated herein
referred to in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By:
-----------------------------------
as Authenticating Agent
By:
-----------------------------------
as Authenticating Agent
Dated: ------------------------------
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS. The Company, with respect to any series of Debt Securities in
registered form, will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record Date
(or after each of the dates to be specified for such purpose for non-interest
bearing Debt Securities and Debt Securities on which interest is paid less
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frequently than semi-annually as contemplated by Section 3.01), a list, in such
form as the Trustee may reasonably require, containing all the information in
the possession or control of the Company or any of its Paying Agents other than
the Trustee as to the names and addresses of the Holders of registered Debt
Securities as of such Regular Record Date or such specified date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished; PROVIDED, HOWEVER, that if and so long as the Trustee acts as Debt
Security Registrar for a series of Debt Securities, the Company need not furnish
or cause to be furnished to the Trustee pursuant to this Section 7.01 the lists
with respect to registered Debt Securities of any such series, but in any event
the Company shall be required to furnish such information concerning the Holders
of bearer Debt Securities of any such series which is known to it; PROVIDED,
FURTHER, that the Company shall have no obligation to investigate any matter
relating to any Holder of a bearer Debt Security or any Coupon.
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders (i) contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and (ii) received by
the Trustee in its capacity as Paying Agent or Debt Security Registrar (if so
acting). The Trustee may destroy any list furnished to it as provided in Section
7.01 upon receipt of a new list so furnished.
(b) The rights of the Holders of Debt Securities of any series to
communicate with other Holders with respect to their rights under this Indenture
or under the Debt Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder, by receiving and holding a Debt Security, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of any of them shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Holders in accordance
with Section 7.02(b) or otherwise made pursuant to the Trust Indenture Act.
SECTION 7.03. REPORTS BY TRUSTEE. (a) Within sixty (60) days following
May 15 in each year following the date hereof, so long as any Debt Securities
are Outstanding hereunder, the Trustee shall transmit to Holders as provided in
the Trust Indenture Act a brief report dated as of such May 15 as required by
and in compliance with the Trust Indenture Act.
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(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each securities exchange upon which the
Trustee has been notified that the Debt Securities are listed, with the
Commission and with the Company. The Company will notify the Trustee when Debt
Securities are listed on any securities exchange or delisted therefrom.
(c) The Company will furnish the Trustee with all notices of meetings
at which Holders of Debt Securities of a particular series are entitled to vote,
and all other reports and communications that are made generally available to
Holders of Debt Securities. The Trustee will, at the Company's expense, make
such notices, reports and communications available for inspection by Holders of
Debt Securities in such manner as the Company may determine and, in the case of
any notice received by the Trustee in respect of any meeting at which Holders of
Debt Securities of a particular series are entitled to vote, will, if requested
by the Company, mail to all such record Holders of Debt Securities, at the
Company's expense, a notice containing a summary of the information set forth in
such notice of meeting.
SECTION 7.04. REPORTS BY COMPANY. The Company shall:
(a) file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company
is not required to file information, documents or reports pursuant to either of
such Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(c) transmit to Holders, in the manner and to the extent required by
the Trust Indenture Act, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the
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Company pursuant to paragraphs 7.04(a) and 7.04(b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 8.01. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS. The
Company may, without the consent of the Trustee or Holders of any Debt
Securities of any series Outstanding under this Indenture, consolidate or
amalgamate with or merge, which for the avoidance of doubt, shall include a
scheme of arrangement, into any other Person or sell or convey or transfer or
lease its properties and assets substantially as an entirety to any Person,
PROVIDED that:
(a) the Person (a "SUCCESSOR PERSON") formed by such consolidation or
amalgamation or into which the Company is merged or the Person which acquires by
sale, conveyance or transfer or which leases the properties and assets of the
Company substantially as an entirety (i) shall be a company organized and
validly existing under the laws of its jurisdiction and (ii) shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest, if any,
including any obligations to pay Additional Amounts, if any, on all the Debt
Securities in accordance with the provisions of such Debt Securities and this
Indenture and the performance or observance of every covenant of this Indenture
on the part of the Company to be performed or observed, unless such assumption
is provided for by law (in which case such Successor Person shall cause to be
delivered promptly to the Trustee an Opinion of Counsel to such effect, in form
and substance acceptable to the Trustee);
(b) immediately after giving effect to such transaction, no Event of
Default or Default and no event which, after notice or lapse of time or both,
would become an Event of Default or Default shall have occurred and be
continuing; and
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(c) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that such consolidation, amalgamation,
merger, conveyance, transfer or lease and such supplemental indenture comply
with this Article 8 and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 8.02. SUCCESSOR PERSON SUBSTITUTED. Upon any consolidation,
amalgamation or merger or any conveyance or transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 8.01, the Successor Person formed by such consolidation or amalgamation
or into which the Company is merged or the Person 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 with the same effect as if
such Successor Person had been named as the Company herein, and thereafter, the
predecessor Person shall be relieved of all obligations and covenants under the
Indenture, the Debt Securities and the Coupons, if any.
SECTION 8.03. ASSUMPTION OF OBLIGATIONS. With respect to the Debt
Securities of any series, a wholly-owned subsidiary of the Company organized and
validly existing under the laws of its jurisdiction (a "SUCCESSOR ENTITY") may
assume the obligations of the Company (or any corporation or Person which shall
have previously assumed the obligations of the Company) for the due and punctual
payment of the principal of (and premium, if any, on) and interest, if any,
including any obligations to pay Additional Amounts, if any, on any series of
Debt Securities in accordance with the provisions of such Debt Securities and
this Indenture and the performance of every obligation and covenant of this
Indenture and such series of Debt Securities on the part of the Company to be
performed or observed PROVIDED that:
(a) the Successor Entity shall expressly assume such obligations by an
amendment or supplement to the Indenture, executed by the Company and such
Successor Entity, if applicable, and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, and the Company shall, by amendment or
supplement to the Indenture, unconditionally guarantee all of the obligations
(including any obligation to pay Additional Amounts) of such Successor Entity
under the Debt Securities of such series and the Indenture as so modified by
such amendment or supplement; PROVIDED, however, that any such guarantee
relating to Subordinated Debt Securities of any series issued hereunder shall be
given on a subordinated basis consistent with Article 12 hereof;
(b) such Successor Entity shall confirm in such amendment or supplement
to the Indenture that such Successor Entity will pay all Additional
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Amounts, if any, payable pursuant to any supplemental indenture with respect to
any series of Debt Securities and any related Coupons;
(c) immediately after giving effect to such assumption of obligations,
no Event of Default or Default and no event which, after notice or lapse of time
or both, would become an Event of Default or Default, shall have occurred and be
continuing; and
(d) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that such assumption of obligations
complies with this Article 8 and that all conditions precedent herein provided
for relating to such assumption have been complied with.
Upon any such assumption, the Successor Entity shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture or any supplemental indenture with respect to any such Debt
Securities with the same effect as if such Successor Entity had been named as
the Company in this Indenture, and the Company or any legal and valid successor
corporation which shall theretofore have become such in the manner prescribed
herein, shall be released from all liability as obligor upon any such Debt
Securities and the respective Coupons, if any, except as provided in clause
8.03(a) of this Section.
In the event of any such assumption or consolidation, amalgamation,
merger or other transaction in accordance with Section 8.01 involving a
Successor Entity, Additional Amounts, if any, payable pursuant to any
supplemental indenture with respect to any series of Debt Securities will be
payable in respect of any withholding taxes imposed by a Taxing Jurisdiction of
the Successor Entity or Successor Person to such Successor Entity (subject to
any exceptions equivalent to those applicable to any obligation to pay
Additional Amounts in respect of withholding taxes imposed by such Taxing
Jurisdiction); PROVIDED, however, that if the Company makes payment under the
guarantee, the Company shall, to the extent permitted by law, be required to pay
Additional Amounts related to withholding taxes (subject to the exceptions set
forth in any supplemental indenture) imposed by its Taxing Jurisdiction by
reason of such payments.
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ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company 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:
(a) to evidence the succession of another Person to the Company and the
assumption by any such successor of the obligations and covenants of the Company
herein and in the Debt Securities and any Coupons, including the issuance of a
guarantee in accordance with Article 8 hereof or the release of a guarantee in
accordance with its terms; or
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Debt Securities (and, if such covenants are to
be for the benefit of less than all series of Debt Securities, stating that such
covenants are expressly being included solely for the benefit of such series) or
to surrender any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default or Defaults for the benefit
of the Holders of all or any series of Debt Securities (and, if such additional
Events of Default or Defaults are to be for the benefit of less than all series
of Debt Securities, stating that such additional Events of Default or Defaults
are expressly being included solely for the benefit of such series); or
(d) to add, change or eliminate any of the provisions of this
Indenture, or any supplemental indenture, PROVIDED that any such addition,
change or elimination shall become effective only when there is no Debt Security
Outstanding of any series created prior to the execution of such supplemental
indenture effecting such change or elimination which is entitled to the benefit
of such provision and is directly and adversely affected by such addition,
change or elimination; or
(e) to secure the Debt Securities; or
(f) to establish the form or terms of Debt Securities of any series and
any Coupons appertaining thereto as permitted by Sections 2.01 and 3.01; or
(g) to change any Place of Payment, so long as the Place of Payment as
required by Section 3.01 is maintained; or
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(h) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein or
in any supplemental indenture, PROVIDED that such action shall not adversely
affect the interests of the Holders of Debt Securities of any series in any
material respect; or
(i) to make any other provisions with respect to matters or questions
arising under this Indenture, PROVIDED such action shall not adversely affect
the interests of the Holders of Debt Securities of any series in any material
respect; or
(j) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Debt Securities of one or more series
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11(b);
(k) to change or eliminate any provision of this Indenture as permitted
by Section 1.07; or
(l) to add or change any provision of the Indenture to the extent as
shall be necessary to permit or facilitate the issuance of Debt Securities in
bearer form, registrable or not registrable as to principal, and with or without
interest Coupons or to permit or facilitate the issuance of Debt Securities in
uncertificated form.
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
consent (including consents obtained in connection with a purchase of, or tender
or exchange offer for, Debt Securities) of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Debt Securities of
each series affected by such supplemental Indenture (voting as a class), by Act
of said Holders delivered to the Company and the Trustee, the Company 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 Debt Securities of such series under this Indenture; PROVIDED,
however, that no such supplemental indenture may, without the consent of the
Holder of each Outstanding Debt Security affected thereby,
(a) change the Stated Maturity, if any, of any principal amount or any
interest amounts in respect of any such Debt Security, or reduce the principal
amount thereof or the rate of interest, if any, thereon, or any premium payable
upon the redemption thereof, or reduce the amount of principal of a Discount
Security that would be due and payable upon an acceleration of the Maturity
thereof pursuant to Section 5.02, or change the obligation of the Company (or
its
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successor) to pay Additional Amounts, if any, or Arrears of Interest or
Additional Interest, if any, as set forth in any supplemental indenture issued
in accordance with Section 3.01 with respect to any series of Debt Securities,
or change the currency of payment of the principal amount of, premium, if any,
or interest on, any such Debt Security 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
(b) reduce the percentage in aggregate principal amount of the
Outstanding Debt 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 of certain defaults hereunder and their consequences) provided for in this
Indenture; or
(c) modify any of the provisions of this Section 9.02 or Section 5.14
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Debt 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, or the deletion of this proviso, in
accordance with the requirements of Sections 6.11(b) and 9.01(j);
(d) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 10.02; or
(e) change in any manner adverse to the interests of the Holders of any
Subordinated Debt Securities of any series the subordination provisions of the
Subordinated Debt Securities of such series or the terms and conditions of the
obligations of the Company in respect of the due and punctual payment of any
amounts due and payable on such series, including whether Senior Creditors shall
be express third party beneficiaries.
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.
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 Debt Securities, or which
modifies the rights of the Holders of Debt Securities of such series with
respect to such
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covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debt Securities of any other series.
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01) 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 obliged to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.04. 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 Debt Securities theretofore
or thereafter authenticated and delivered hereunder and every holder of Coupons,
if any, shall be bound thereby, except as otherwise expressed therein.
SECTION 9.05. 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 9.06. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL INDENTURES.
Debt 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 Debt 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 such Debt Securities may be authenticated and
delivered by the Trustee in exchange for Outstanding Debt Securities of such
series.
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ARTICLE 10
COVENANTS
SECTION 10.01. PAYMENT OF PRINCIPAL, PREMIUM, AND INTEREST. The Company
covenants and agrees for the benefit of each series of Debt Securities that it
will duly and punctually pay the principal of (and premium, if any) and
interest, if any, on the Debt Securities of that series in accordance with the
terms of the Debt Securities, any Coupons appertaining thereto and this
Indenture.
Any interest on bearer Debt Securities shall be payable only upon
presentation and surrender outside the United States of the several Coupons for
such interest installments as are evidenced thereby as they severally mature.
Any interest on any temporary bearer Debt Securities shall be paid, as to any
installment of interest evidenced by a Coupon attached thereto, if any, only
upon presentation and surrender outside the United States of such Coupon, and,
as to the other installments of interest, if any, only upon presentation outside
the United States of such Debt Securities for notation thereon of the payment of
such interest. Any interest on registered Debt Securities shall be payable only
to or upon the written order of the Holders thereof.
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in each Place of Payment for any series of Debt Securities an office or
agency where Debt Securities of that series and any Coupons appertaining thereto
may be presented or surrendered for payment, where Debt 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 Debt Securities of
that series and any Coupons appertaining thereto and this Indenture may be
served; PROVIDED, however, that at the option of the Company in the case of
registered Debt Securities of such series, payment of any interest thereon may
be made by check mailed to the address of the Person entitled herein as such
address shall appear in the Debt Security Register, unless such person requests
payment by wire transfer pursuant to Section 3.07(a). With respect to the Debt
Securities of any series, such office or agency in each Place of Payment shall
be specified as contemplated by Section 3.01, and if not so specified, initially
shall be the Corporate Trust Office of the Trustee. Unless otherwise specified
pursuant to Section 3.01, the Company will maintain in the Borough of Manhattan,
The City of New York, an office or agency where notices and demands to or upon
the Company in respect of Debt Securities of any series and any Coupons
appertaining thereto and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
(except presentations or surrenders
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of bearer Debt Securities or Coupons for payment) may be made or served at the
Corporate Trust Office of the Trustee. The Company hereby appoints the Trustee
as its agent to receive all presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Debt Securities of one or more series and any Coupons
appertaining thereto may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; PROVIDED, however,
that no such designation or rescission shall in any manner relieve the Company
of any obligation to maintain an office or agency in each Place of Payment
(except as otherwise indicated in this Section) for Debt Securities of any
series and any Coupons appertaining thereto for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
SECTION 10.03. MONEY FOR PAYMENTS TO BE HELD IN TRUST. If the Company
shall at any time act as Paying Agent with respect to the Debt Securities of any
series and any Coupons appertaining thereto, it will, to the extent permitted by
applicable law, on or before each due date for payment of the principal of (and
premium, if any) or interest, if any, on any of the Debt Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest,
if any, 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 failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Debt Securities, it will, prior to each due date for payment of the
principal of (and premium, if any) or interest, if any, on any Debt Securities
of that series, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest, if any, so becoming due, such sum,
to the extent permitted by applicable law, 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 its failure so to act. The Company will cause each Paying Agent for
any series of Debt 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:
(a) comply with the provisions of the Trust Indenture Act applicable to
it as a Paying Agent and, to the extent permitted by applicable law, hold all
sums held by it for the payment of the principal of (and premium, if any) or
interest, if any, on Debt Securities of that series in trust for the benefit of
the Persons entitled
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thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(b) give the Trustee timely notice of any default by the Company (or
any other obligor upon the Debt Securities of that series) in the making of any
payment, when due and payable, or principal of (and premium, if any) or
interest, if any, on Debt Securities of that series; and
(c) 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 the time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest, if any, on any Debt Security of any series and remaining
unclaimed by the Persons entitled thereto after the expiration of the applicable
statute of limitations following the date of Maturity of the Debt Securities of
such series, the relevant Interest Payment Date or the date fixed for the
redemption of such Debt Securities of such series shall be paid to the Company
on demand, or (if then held by the Company) shall be discharged from such trust;
and the Holder or the beneficial owners or holders of any such Debt Security and
the holder of any Coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof (and, in the case
of bearer Debt Securities or Coupons, such payments shall be made only outside
the United States), and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published at least once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be paid to
the Company.
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SECTION 10.04. CORPORATE EXISTENCE. Subject to Article Eight, the
Company will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence.
SECTION 10.05. STATEMENT AS TO COMPLIANCE. The Company will deliver to
the Trustee, within 120 days after the end of each fiscal year, a certificate in
compliance with Section 314(a)(4) of the Trust Indenture Act.
SECTION 10.06. ORIGINAL ISSUE DISCOUNT. The Company shall provide to
the Trustee on a timely basis such information, if any, as the Trustee requires
to enable the Trustee to prepare and file any form required to be submitted by
the Company with the Internal Revenue Service and the Holders of the Debt
Securities relating to any original issue discount, including, without
limitation, Form 1099-OID or any successor form.
SECTION 10.07. STATEMENT BY OFFICERS AS TO DEFAULT. The Company shall
deliver to the Trustee, as soon as possible and in any event within ten days
after the Company becomes aware of the occurrence of any Event of Default or an
event which, with notice or the lapse of time or both, would constitute an Event
of Default or a Default, an Officer's Certificate setting forth the details of
such Event of Default or Default and the action which the Company proposes to
take with respect thereto.
ARTICLE 11
REDEMPTION OF DEBT SECURITIES
SECTION 11.01. APPLICABILITY OF ARTICLE. Debt Securities of any
series shall be redeemable in accordance with their terms and (except as
otherwise specified pursuant to Section 3.01 for Debt Securities of any
series) in accordance with this Article.
SECTION 11.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of
the Company to redeem any Debt Securities shall be evidenced by an Officer's
Certificate. The Company shall, not more than 60 days nor less than 30 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of
the principal amount of Debt Securities of such series to be redeemed and, if
applicable, the tenor of the Debt Securities to be redeemed. In the case of any
redemption of Debt Securities of any series prior to the expiration of any
provision restricting such redemption provided in the terms of such Debt
Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
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with an Officer's Certificate evidencing compliance with or waiver of such
provision.
SECTION 11.03. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE REDEEMED.
If less than all the Debt Securities of any series are to be redeemed, the
particular Debt Securities to be redeemed shall be selected not more than 60
days nor less than 30 days prior to the Redemption Date by the Trustee, from the
Outstanding Debt 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 registered Debt Securities of that series or any
multiple thereof) of the principal amount of Debt Securities of such series of a
denomination larger than the minimum authorized denomination for Debt Securities
of that series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate in the case of any Debt Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such registered Debt Security
which has been or is to be redeemed.
SECTION 11.04. 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 Debt Securities to be redeemed in the manner and to the extent
provided in Section 1.06.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Debt Securities of any series are
to be redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the Debt Securities to be redeemed or the manner in which
such Debt Securities will be identified,
(d) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debt Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on or after the said date,
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(e) the place or places where such Debt Securities are to be
surrendered for payment of the Redemption Price (which, in the case of bearer
Debt Securities and Coupons, shall be outside the United States), and that,
unless otherwise specified in such notice, bearer Debt Securities in definitive
form (if any) surrendered for payment must be accompanied by all Coupons
maturing subsequent to the Redemption Date, failing which the amount of any such
missing Coupon or Coupons will be deducted from the sum due for payment, and
(f) the CUSIP, Common Code and/or ISIN number or numbers, if any, with
respect to such Debt Securities.
Notice of redemption of Debt Securities to be redeemed at the selection
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. In the event that the
Company elects to have notice of redemption given by the Trustee, it shall
deliver such notice to the Trustee at least fifteen (15) days prior to the date
on which such notice is to be given (unless a shorter period shall be acceptable
to the Trustee).
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as Paying Agent, segregate and hold in trust
as provided in Section 10.03) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued but unpaid interest on, all the Debt Securities which are
to be redeemed on that date.
SECTION 11.06. DEBT SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Debt 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, if any)
such Debt Securities shall cease to accrue interest. Upon surrender of any such
Debt Security for redemption in accordance with said notice, such Debt Security
shall be paid by the Company at the Redemption Price, together with accrued but
unpaid interest, if any, to the Redemption Date; PROVIDED, however, that with
respect to any Debt Securities in registered form, unless otherwise specified as
contemplated by Section 3.01, a payment of interest which is payable on an
Interest Payment Date which is on or before the Redemption Date, shall be
payable to the Holders of such Debt Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
Record Date according to the terms of the Debt Securities and the provisions of
Section 3.07.
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If any Debt 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 and after the Redemption Date in accordance with the
terms of such Debt Security and the provisions of Section 3.07.
SECTION 11.07. DEBT SECURITIES REDEEMED IN PART. Any Debt Security
which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, only in the case of Debt Securities in registered form, 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 deliver to the
Holder of such Debt Security without service charge, a new Debt Security or Debt
Securities of the same series 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 Debt Security so surrendered.
ARTICLE 12
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
SECTION 12.01. SUBORDINATED DEBT SECURITIES SUBORDINATE TO CLAIMS OF
SENIOR CREDITORS. (a) Unless otherwise provided for in a supplemental indenture
with respect to any series of Debt Securities, (i) The claims of the Holders of
the dated Subordinated Debt Securities of each series and the holders of any
Coupons relating thereto (to the extent such Coupons rank equally with the
underlying Subordinated Debt Security) against the Company in respect of the
principal of, premium, if any, interest if any, on the dated Subordinated Debt
Securities of such series will, subject to applicable law, in the event a court
of competent jurisdiction makes an order which is not successfully appealed
within 30 days of the making of such order, or the shareholders of the Company
validly adopt a resolution, for the winding-up of the Company (voluntary or
judicial liquidation (LIQUIDATION AMIABLE or LIQUIDATION JUDICIAIRE)), other
than under or in connection with a scheme of amalgamation or reconstruction not
involving a bankruptcy or insolvency or, following an order of REDRESSEMENT
JUDICIAIRE, the sale of the entire business (CESSION TOTALE DE L'ENTREPRISE), be
subordinated, and subject in right of payment, to the prior payment in full of
all Senior Creditors (including Senior Creditors whose claims arise in the
context of the liquidation). The claims of the Holders of the undated
Subordinated Debt Securities of each series and the holders of any Coupons
relating thereto (to the extent such Coupons rank equally with the underlying
Subordinated Debt Security) against the Company in respect of the principal of,
premium, if any, interest if any, on the undated Subordinated
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Debt Securities of such series will, subject to applicable law, in the event a
court of competent jurisdiction makes an order which is not successfully
appealed within 30 days of the making of such order, or the shareholders of the
Company validly adopt a resolution, for the winding-up of the Company (voluntary
or judicial liquidation (LIQUIDATION AMIABLE or LIQUIDATION JUDICIAIRE)), other
than under or in connection with a scheme of amalgamation or reconstruction not
involving a bankruptcy or insolvency or, following an order of REDRESSEMENT
JUDICIAIRE, the sale of the entire business (CESSION TOTALE DE L'ENTREPRISE), be
subordinated, and subject in right of payment, to the prior payment in full of
all Senior Creditors and Holders of dated Subordinated Securities (including
Senior Creditors and Holders of dated Subordinated Securities whose claims arise
in the context of the liquidation). In any case, the dated and undated
Subordinated Debt Securities will be paid prior to any payment of sums due to
holders of PRETS PARTICIPATIFS granted to the Company or TITRES PARTICIPATIFS
issued by the Company. Except where all sums payable by the Company or such
other relevant Person in accordance with applicable liquidation or insolvency
laws in respect of all claims of Senior Creditors are paid in full or full
provision therefor has been made (in such circumstances such amounts which are
permitted to be proved are referred to as the "PERMITTED PAYMENTS"), no payments
shall be paid to Holders of the Subordinated Debt Securities. Without prejudice
to the foregoing, if the Trustee receives amounts which are not Permitted
Payments in relation to the Subordinated Debt Securities in the liquidation of
the Company such amounts will be held on trust for distribution in satisfaction
of all claims of Senior Creditors and only thereafter in or towards payment of
the amounts due under the Subordinated Debt Securities or any Coupons relating
thereto (to the extent such Coupons rank equally with the underlying
Subordinated Debt Securities) and any other claims with which the Subordinated
Debt Securities rank PARI PASSU.
(ii) Any payment postponed under this Section 12.01(a) but ultimately
paid to the Trustee and constituting a Permitted Payment shall be applied in
respect of the entitlements of the Holders of Subordinated Debt Securities or,
as the case may be, the relative holders of any Coupons PARI PASSU and rateably
in accordance with the provisions of Section 5.07 of this Indenture.
(iii) For the purpose of establishing whether an amount is a Permitted
Payment, the Trustee shall be entitled and is hereby authorized by the Company
to call for (and shall be entitled to accept as conclusive evidence thereof) a
certificate from the liquidator or other representative of the Company as to:
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(A) the amount of the claims of the Senior Creditors and as to
whether they shall or shall not have been fully satisfied or otherwise
fully provided for;
(B) the identity of the Senior Creditors and their respective
entitlements;
(C) the amount of the claims with which the Subordinated Debt
Securities rank PARI PASSU (the "PARI PASSU CLAIMS") and whether they
shall or shall not have been fully satisfied or otherwise fully
provided for or paid out on an equivalent rateable basis to the subject
payment out to the Trustee; and
(D) the identity of the holders of the Pari Passu Claims and their
respective entitlements.
(b) The provisions of this Section shall not be applicable to any
amounts of principal, premium, if any, interest, if any, in respect of any of
the Subordinated Debt Securities of any series for the payment of which funds
have been deposited in trust with the Trustee or any Paying Agent or have been
set aside by the Company or such other relevant Person in accordance with
applicable liquidation or insolvency laws in trust in accordance with the
provisions of this Indenture; PROVIDED, however, that at the time of such
deposit or setting aside, and immediately thereafter, the foregoing provisions
of this Section are complied with.
In the event of incomplete payment of Senior Creditors, the obligations
of the Company under the Subordinated Debt Securities will become null and void.
SECTION 12.02. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS. The
provisions of this Article Twelve are and are intended solely for the purpose of
defining the relative rights of the Holders of the Subordinated Debt Securities
of each series and the holders of the Coupons appertaining thereto, if any, on
the one hand and the Senior Creditors on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in such Subordinated Debt
Securities is intended to or shall (a) impair, as among the Company and the
Holders of the Subordinated Debt Securities and any Coupons, the obligation of
the Company, which is absolute and unconditional, to pay to the holders of such
claims the principal of, premium, if any, and interest, if any, on such
Subordinated Debt Securities as and when the same shall become due and payable
in accordance with their terms and this Indenture; or (b) affect the relative
rights against the Company of the Holders of such Subordinated Debt Securities
and of such Coupons; or (c) prevent the Trustee or the Holder of any
Subordinated Debt Securities of the
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series or the holder of any such Coupon from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the Senior Creditors to receive cash,
property or securities otherwise payable or deliverable to the Trustee or
such Holder or holder.
SECTION 12.03. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder of a
Subordinated Debt Security and each holder of any Coupon by his acceptance
thereof authorizes and directs the Trustee on his behalf to take such action as
may be necessary or appropriate to effectuate the subordination of the
Subordinated Debt Securities provided in this Article Twelve and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 12.04. NO WAIVER OF SUBORDINATION PROVISIONS. No right of any
present or future Senior Creditors to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith,
by any such Senior Creditor or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof any such Senior Creditor may have or be otherwise charged with.
SECTION 12.05. NOTICE TO TRUSTEE. The Company shall give prompt written
notice to the Trustee of any fact known to the Company which would prohibit the
making of any payment when due to or by the Trustee in respect of the
Subordinated Debt Securities of a series. Notwithstanding the provisions of this
Article or any other provisions of this Indenture but subject to the provisions
of Section 12.01, the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any payment when due
to or by the Trustee in respect of such Subordinated Debt Securities unless and
until a Responsible Officer of the Trustee shall have received written notice
thereof from the Company or a Senior Creditor or from any trustee therefor; and,
prior to the receipt of any such written notice by a Responsible Officer of the
Trustee, the Trustee, subject to the provisions of Section 6.01, shall be
entitled in all respects to assume that no such facts exist; PROVIDED, however,
that if the Trustee shall not have received the notice provided for in this
Section at least three Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of and any premium and interest, if
any, on any Subordinated Debt Security), then, subject to the provisions of
Section 12.01, the Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such money was received and
shall not be affected by any notice to the contrary which may be received by it
within three Business Days prior to such date.
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Subject to the provisions of Section 6.01, the Trustee shall be
entitled to conclusively rely on the delivery to it of a written notice by a
Person representing himself to be a Senior Creditor or a trustee therefor, to
establish that such notice has been given by a Senior Creditor, or a trustee
therefor. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a Senior
Creditor to participate in any payment or distribution pursuant to this Article,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of claims held by such Person, and
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
SECTION 12.06. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT. Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 6.01, the
Holders of the Subordinated Debt Securities of the series and the holders of any
Coupons appertaining thereto shall be entitled to rely upon (a) any order or
decree entered by any court in France (or in the jurisdiction of a Successor
Entity or Successor Person) in which such winding-up of the Company or similar
case or proceeding, including a proceeding for the suspension of payments under
French law, is pending, or (b) a certificate of the liquidator of the Company
(the "LIQUIDATOR"), assignee for the benefit of creditors, agent or other person
making such payment or distribution, delivered to the Trustee, the Holders of
such Subordinated Debt Securities or holders of any Coupons, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the Senior Creditors and other claims against the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.
SECTION 12.07. TRUSTEE NOT FIDUCIARY FOR SENIOR CREDITORS. The Trustee
shall not be deemed to owe any fiduciary duty to the Senior Creditors and shall
not be liable to any such holders if it shall in good faith mistakenly pay over
or distribute to Holders of Subordinated Debt Securities of the series or
holders of Coupons appertaining thereto or to the Company or to any other Person
cash, property or securities to which any Senior Creditors shall be entitled by
virtue of this Article or otherwise.
SECTION 12.08. RIGHTS OF TRUSTEE AS SENIOR CREDITOR; PRESERVATION OF
TRUSTEE'S RIGHTS. The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any claims of Senior
Creditors which may at any time be held by it, to the same extent as any other
Senior Creditor, and nothing in this Indenture shall deprive the Trustee of any
of its rights as such holder.
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Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.07.
SECTION 12.09. ARTICLE APPLICABLE TO PAYING AGENTS. At all times when a
Paying Agent other than the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in this Article shall in
such case (unless the context otherwise requires) be construed as extending to
and including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition to or in
place of the Trustee; PROVIDED, however, that Section 12.08 shall not apply to
the Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
SECTION 12.10. RIGHTS OF THE COMPANY. Nothing contained in this
Indenture shall in any way restrict the right of the Company to issue or
guarantee obligations ranking in priority to or PARI PASSU with or junior to the
obligations of the Company in respect of the Debt Securities and if in the
opinion of the Company any modification to the provisions of this Article to
permit such ranking is necessary or expedient the Trustee is hereby authorized
to enter into a supplemental indenture effecting such modification in accordance
with the provisions of Article 9.
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Indenture to be duly executed, all as of the day and year first above written.
AXA
By: /s/ ▇▇▇▇▇▇ de la Martiniere
---------------------------------
Name: ▇▇▇▇▇▇ de la Martiniere
Title: Member of the Management Board
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: AVP
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